August 22, 2014
The Con Law Conundrum
Posted by Usha Rodrigues

The question: to con law or not to con law?

The context: Steve Bainbridge responding to Anne Tucker's post on including a Citizens' United/Hobby Lobby discussion in a BA course (see Anne's reply to Steve here).  The question is a timely one for me:  Georgia Law started classes this week, and I (the rare bird who rotates casebooks because she is easily bored) am happily back teaching from Steve's casebook, co-authored with Klein & Ramseyer, which I highly recommend.  I never hand out a syllabus with assigned readings because invariably we move quicker or slower than I anticipate.  I have to cut or add material, and I find that students find such midstream changes unsettling.  So I don't tell them where we're going til we get there.

But I do have a "working syllabus" I hash out for myself at the semester's opening and tweak as the classes unfold.  As Anne and Steve point out, the semester is ridiculously crowded.  In 3 credits I cover partnership, corporations, and LLCs, and I cover the MBCA and Delaware corporate code.  It's way too much material (as I told my class Wednesday as part of my "drop this class" introductory speech).  My working syllabus has material for each of the 42 50-minute classes I'm allotted, and I agonize over the choices I make in filling each one.  This year, for the first time ever, my roughed-out working syllabus includes a day for Citizens United/Hobby Lobby.

Why?  Steve makes a terrific case for private law, and I am with him.  I love teaching BA for BA's sake.   Explaining to students the basic puzzle of ownership versus control, the different ways to run the railroad in terms of choice of entity and the tradeoffs among them?  Throw in the importance of private ordering and the ability to read a statute, and I'm in heaven.  I'm no public law scholar in sheep's clothing.  I'm a true believer, proselytizing for the beauty of business law in what sometimes does feel like a con law desert.

But I have got more doctrinal material than I can possibly cover.  Throw in a class where I invite in a practitioner, a class for Bill Chandler to talk about whatever the heck it is he wants to, and a review session, and we're talking precious few classes to cover a lot of material.


So why cede a precious class to public law jibber-jabber?  I'm still not sure I will.  But the reason came to me on a playground, chatting with an English professor mom.  We were commiserating over our lack of preparation for the start of the semester (secret: professors procrastinate, too), and she said, "well, it must be nice to teach a subject so interesting to students.  Hobby Lobby, Citizens United."  She nodded knowingly. 

The comment brought me up short.  Nobody things corporations are interestng.  At least, no one used to.  But now they do.  And sure it's for the "wrong" reasons--not for coprorate law reasons, but for reasons that deal with corporations' role in society.   And I think that might be enough to devote one class out of my 42.  Not for Anne's reason,  "to “hook” students who didn’t come to my class with an interest in corporate law."  I'm confident I can hook them on the merits.  But because, as she also says, "Corporate law also matters to general members of society because corporations wield tremendous power in elections, in lobbying (regulatory capture anyone?), in shaping retirement savings, in religious and reproductive rights debates and setting other cultural norms around issues like corruption, sustainability, living wage, etc."  It struck me on the playground that the "legal literacy" reason I give for taking Corporations--it's just something that every lawyer should know--may apply here as well.  With Hobby Lobby we might have reached the point where corporate law literacy demands a passing understanding of these two cases.  

Maybe not.  The CU/Hobby Lobby class may well end up on the cutting room floor.  But one last thing: as I get older, it is increasingly less clear to me that my students retain much past the exam.  What I want them to get out of the class, ultimately, is a basic knowledge of the relevant codes, of the importance of codes, an ability to read statutes, an understanding of the importance of default rules versus mandatory ones, agency costs, the trade-offs in choice of entity, the business judgment rule, and fiduciary duty.  Looked at that way, perhaps one public law class out of 42 isn't too much of a sacrifice in terms of coverage.

Corporate Law, Teaching | Bookmark

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