January 31, 2015
Pretend you never went to school
Posted by Usha Rodrigues

President Obama's SOTU address was easy to dismiss as standard-issue liberal class-baiting.  But when within the span of a week I see two eminent right-of-center publications headlining class division in America, maybe it's time to take notice. Thursday's WSJ featured front-page article on How a Two-Tier Economy Is Reshaping the U.S. Marketplace.  Basically, the crisis hit everyone, but since 2009 the rich have been getting richer, and they're spending up a storm at Whole Foods and at "luxury retailers" like Neiman Marcus.  Meanwhile, Target, Macy's, J.C. Penny's, and Sears have seen sales slump. Hmm.  I don't shop at Needles Markup, and have a well-worn Target card.  Workers of the world, unite!

More incisive analysis came from this week's Economist, which described America's new aristocracy.  The thesis is that "today’s rich increasingly pass on to their children an asset that cannot be frittered away in a few nights at a casino. It is far more useful than wealth, and invulnerable to inheritance tax. It is brains." 

This charge hits a lot closer to home, and takes me back to my clerkship days.  My judge had 4 clerks.  Quickly the consensus arose among the other 3 that I was the least impressive clerk--by which they meant that my background made my attainment of an prestigious appellate court clerkship something more to be expected than exclaimed over.  Mind you, my parents were academics who made less money--much less money--than the parents of two of my fellow clerks.  But my compatriots vociferously maintained that my parental background, dappled as it was with 2 PhDs, 1 MD, and several MAs, gave me a serious leg up in this particular game.  In the end, I conceded that they were right. 

Where do I stack up in the new aristocracy?  While we may be slumming it at Target with the rest of the common people, we are a two-degree household.  Our children go to public schools, but they're good public schools and my oldest girl is on the Athens Area Girls Math Team (no, I'm not kidding and yes, it's awesome).  I talk  college all the time with my 7 and 4 year old--largely because we live in a college town and drop-offs and pickups involve passing college kids en route to dorm or class.  Given all these things, I'm pretty sure they will have leg up in the academic game.  

This advantage is a problem if we want a "natural aristocracy" of brains and talent--otherwise America's promise of meritocracy becomes a plutocracy or a cerebrocracy.  The Economist recommends leveling the field by improving childcare and early childhood education, funding schools at the state level, encouraging vouchers, having colleges base admissions decisions solely on academic merit, and disclosure of the return college graduates receive on their degrees.  All of these sound like plausible reforms, with a likelihood of being adopted ranging from "maybe" to "unlikely" to "nil."  But it's sure interesting that it's not just the liberal bastions remarking on the gap between the haves and have-lesses in the United States today.

Also, just in case you haven't heard it, this.

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January 30, 2015
The Ethical Slide, Train Tickets, and Helping the Next Generation of Corporate Leaders to Choose Differently
Posted by Josephine Sandler Nelson

It has been a pleasure to guest-blog for the last two weeks here at the Glom. (Previous posts available here: one, two, three, four, five, six, seven, eight, and nine.) This final post will introduce the book that Lynn Stout and I propose writing to give better direction to business people in search of ethical outcomes and to support the teaching of ethics in business schools.

Sometimes bad ethical behavior is simply the result of making obviously poor decisions. Consider the very human case of Jonathan Burrows, the former managing director at Blackrock Assets group. Burrows’s two mansions outside London were worth over $6 million U.S., but he ducked paying a little over $22 U.S. in train fare each way to the City for five years. Perhaps Burrows had calculated that being fined would be less expensive than the inconvenience of complying with the train fare rules. Unluckily, the size of his $67,200 U.S total repayment caught the eye of Britain’s Financial Conduct Authority, which banned Burrows from the country’s financial industry for life. That’s how we know about his story.

But how do small bad ethical choices snowball into large-scale frauds? How do we go from dishonesty about a $22 train ticket to a $22 trillion loss in the financial crisis? We know that, once they cross their thresholds for misconduct, individuals find it easier and easier to justify misconduct that adds up and can become more serious. And we know that there is a problem with the incentive structure within organizations that allows larger crises to happen. How do we reach the next generation of corporate leaders to help them make different decisions?

Business schools still largely fail to teach about ethics and legal duties. In fact, research finds “a negative relationship between the resources schools possess and the presence of a required ethics course.” Moreover, psychological studies demonstrate that the teaching of economics without a strong ethical component contributes to a “culture of greed.” Too often business-school cases, especially about entrepreneurs, venerate the individual who bends or breaks the rules for competitive advantage as long as the profit and loss numbers work out. And we fail to talk enough about the positive aspects of being ethical in the workplace. The situation is so bad that Luigi Zingales of the University of Chicago asks point-blank if business schools incubate criminals.

New business-school accreditation guidelines adopted in April 2013 will put specific pressure on schools to describe how they address business ethics. Because business schools are accredited in staggered five-year cycles, every business school that is a member of the international accreditation agency will have to adopt ethics in its curriculum sometime over the next few years.

We hope that the work outlined in my blogposts, discussed at greater length in my articles, and laid out in our proposed book will be at the forefront of this trend to discuss business ethics and the law. We welcome those reading this blog to be a part of the development of this curriculum for our next generation of business leaders.

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January 29, 2015
Apparently I'm Not The Only One Attached to My 529 Plans
Posted by Christine Hurt

Obama's plan to cut tax benefits for 529 plans has been scrapped.  The uproar must have included other voices louder and more powerful than mine.  

One note:  at least one opinion writer uses the death of the 529 proposal as evidence of the power of the wealthy, who mistakenly believe themselves to be middle class, not to be taxed.  This may be true, but it and other news reports state that 70% of benefits of 529 plans go to families with incomes over $200,000 a year.  However, in the NYT article linked above, it makes clear that this statistic is based on the value of the accounts, not the number of accountholders.  By number, 70% of 529 accounts are owned by families with incomes under $150,000.  So, to say that the affluent are the only ones making use of the accounts is misleading.

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January 26, 2015
Subsidizing Savings v. Subsidizing Borrowings
Posted by Christine Hurt

OK, so I try not to just vote my interest.  If I'm in tax bracket A, I try not to root for tax cuts to A and cheer for tax hikes for tax bracket B and so forth.  I know it's human to vote one's interest, but I try to vote the interest of the country.  (Ha!)

BUT, I have to say I hate this new proposal.  Currently 529 programs allow anyone to save money for future education benefits for any named beneficiary, with all returns on investment growing tax-free.  Distributions for educational purposes are tax-free as well.  There are no phase-outs or maximum income rules for using 529s.  Well, the White House proposes that this end.  Any future deposits into a 529 will be subject to taxation on returns upon distribution.

Aargh. Here, voting for this proposal is in my own interest, but I also think it's a bad policy.  Yes, I am in the 529 generation.  We had our first child in 1999, about the same time as details were being hammered out in early versions of the 529 that would become part of what is now known as "the Bush Tax Cuts" in 2001.  We have relied heavily on the 529 vehicle for all our kids, and I would be very upset personally if this tax benefit would disappear (going forward).  And no, I doubt we would continue to use the 529 vehicle for that purpose if earnings were taxed on distribution given the educational limit on use.  Now, we are taking the risk that one or more of our children will somehow get scholarship dollars for all their education and be unable to use all of their funds for educational use.  

I also do not believe that it is a rationalization to say this proposal is bad.  The optics are bad; the result is bad.  If you ask anyone in higher education what the biggest problem today is, the answer would have to be student debt.  So, why would you want to suddenly discourage earmarked savings for higher education?  If we are concerned about the cost of education, then maybe we should quit using federal money to subsidize student debt, not quit using federal money to subsidize student savings.

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July 23, 2014
Position Announcement: Business Law At Wharton
Posted by David Zaring

Please let those in the business law world know that we're searching this year.  I'm the committee chair, so if you have questions, I'll do my best to respond to them.  And Wharton is fantastic.  Applications go through the website at the following link; here's the announcement:

The Wharton School at the University of Pennsylvania invites applications for tenured and tenure-track positions in its Department of Legal Studies and Business Ethics.  The Department has eighteen full-time faculty who teach a wide variety of business-oriented courses in law and ethics in the undergraduate, MBA, and Ph.D. programs and whose research is regularly published in leading journals.  The Wharton School has one of the largest and best-published business school faculties in the world.  In addition, the school has a global reach and perspective, as well as an interdisciplinary approach to business issues (embracing ten academic departments and over twenty research centers). 

Applicants must have either a Ph.D., J.D., or both, from an accredited institution (an expected completion date no later than July 1, 2016 is acceptable) and a demonstrated commitment to scholarship in business ethics, business law, or a combination of the two fields.  Specific areas of potential focus for hiring include corporate governance, normative ethics related to business, social impact/sustainability, securities regulation, and health law/bioethics.  The appointment is expected to begin July 1, 2015.

Please submit electronically your letter of introduction, c.v., and one selected article or writing sample in PDF format via the following website by November 1, 2014: APPLY.  Some decisions for interviews will be made before the deadline, so candidates are encouraged to apply early.

The University of Pennsylvania is an equal opportunity employer.  Minorities, women, individuals with disabilities, protected veterans are encouraged to apply.

 

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June 10, 2014
Death Of Tenure?
Posted by David Zaring

It is pretty fishy to argue that tenure deprives students of the right to an education (as opposed to being a reasonable call by the legislature that it is a way to vindicate that right), and one is taking one's chances when the first citation in an opinion is to Brown v. Board of Education, but that's what a California court just held and did.  I'm guessing the deans at the state's various law schools will wait to see how this one plays out before sending out the pink slips.

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March 14, 2014
Experimenting with the Experiential
Posted by Joseph Yockey

It’s rare these days for me to talk to colleagues or peers without the conversation quickly turning to legal education reform. In fact, the topic is so prevalent in the law school ecosystem that I hesitate to even bring it up out of fear of oversaturation.

So, rather than repeat arguments for and against adding things like “experiential” learning programs to the standard law school curriculum, I’ll simply share something new that we are doing at the University of Iowa College of Law.

Beginning in the fall, Iowa will offer third-year students the option to take a "Legal Practice Capstone Course." This course is meant to prepare students for professional settings in which new attorneys are expected to manage assignments from several different supervisors at once and must execute projects even in areas that they've never formally studied.

Four faculty members will play the roles of supervising attorneys. Fifteen students will then be expected to complete a variety of legal projects over the course of the semester, covering an array of doctrinal areas. Students might work on a motion to suppress one day, and an LLC operating agreement the next. The projects might be spaced out, or they could come in bunches. Just as junior attorneys in large and mid-sized law firms often discover day-to-day who their next supervisors and what their next projects will be, the identities of the participating faculty members and the nature of the assigned projects will be revealed when the course begins (I’m hoping that we’ll materialize ghost-like à la Obi-Wan Kenobi, but it might not be in the cards - yet).

The course is obviously not a replacement for immersive clinical programs, externships, or paid summer jobs. It’s impossible to recreate every aspect of large firm practice in the seminar format. However, as a supplement to other opportunities, our expectation is that this program will provide students with a powerful new kind of educational experience. I’m one of a handful of faculty members piloting the first go-around. Any advice on potential corporate projects? 

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March 10, 2014
Transitions
Posted by Joseph Yockey

Hello, everyone. Many thanks to my hosts for the opportunity to post, and to Christine for the kind introduction. I’ll get to the meat and drink of my research interests soon, but tonight I want to talk about a less formal subject. Here in Iowa City we are a week away from Spring Break. That means our third-year students are inching ever so close to graduation. One such student recently put an interesting question to me: what book should he read in the transition summer between law school and the start of private practice?

I thought this question should be easy, but the more I thought about it the more uncertain I became. Should I recommend fiction or non-fiction? Something fun, legal, educational, or practical? I read Alan Dershowitz’ The Best Defense during my gap summer on the advice of my favorite law professor. I’m glad I did, and I found it very helpful in my early days as a litigator. But I’m not sure if it’s everyone’s cup of tea, especially for someone planning to do corporate transactional work.

Eventually my thoughts kept coming back to Hemingway, and in particular to my favorite of his short stories:"A Clean, Well-Lighted Place". It ticks several of my boxes. First, it’s all about change. The author takes less than 1,500 words to run the gamut of human transitions: youth to adulthood; work to retirement; love to loneliness; life to death. Second, it’s so short that it fits easily within a bar review study schedule. Finally, and perhaps most significantly, I think it’s important for every new lawyer to ponder the value of clean, well-lit bars, cafés, and restaurants—especially ones that stay open past 3:00am.

Yet I’m still not sure. It’s a fantastic story, but I'm told it strikes many as depressing, and that’s not the feeling I’m going for.

So, I think I need your help. What book or books would you recommend for someone leaving academia behind to enter the world of corporate law practice? Is there a text or two that you found uniquely helpful, inspirational, or transformative when making the same move?

I look forward to your thoughts, as well as to your company during the next two weeks.

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July 24, 2013
Mamas, Don't Let Your Babies Grow Up to Be English Majors. Or Lawyers.
Posted by Usha Rodrigues

Lee Siegel in the WSJ last week asked "Who Ruined the Humanities?" and I've been musing about a story ever since.  His launching point is the statistic that humanities majors comprised 14% of undergraduate majors 50 years ago, but only 7% today.  His real beef, though, is with the college English lit class:

Homer, Chekhov and Yeats were reduced to right and wrong answers, clear-cut themes, a welter of clever and more clever interpretations. Books that transformed the facts were taught like science and social science and themselves reduced to mere facts. Novels, poems and plays that had been fonts of empathy, and incitements to curiosity, were now occasions of drudgery and toil.

As the daughter of an English professor, with a B.A. in English and an M.A. in comparative literature, of course that got my attention.

What you're probably expecting next is a full-throated defense of the English major.  Somewhat to my befuddlement, I'm not sure I can give it.  Sure, Siegel's description is largely caricature, at least as compared to my experience at Georgetown in the early 90s.  Sure, the study of literature, like the rest of the humanities, can teach students how to read and write critically, to think analytically, to engage with and appreciate the world.  

But I'm not sure it does that.  I was a dedicated reader by the time I hit middle school.  My father taught me how to write before I got to college, bloodying my high school first drafts with so much red ink it was hard to see anything else.  Of course Georgetown made me a better writer and thinker.  But, as one of my professors observed, college isn't equipped to teach the uninitiated how to write (forget trying to do that in law school).

 I have 3 children now--would I advise them to be English majors?  I feel like a heretic typing these words, but I'm not sure I would. As a parent, I know I should talk to my kids more about net present values of degrees, both undergrad and graduate.  Debate has lately been swirling about whether a law degree is worth a million dollars, $330,000, or a hill of beans (Campos, Tamanaha).  These are vital conversations for us as legal educators to have.  And as a parent I'll no doubt have them, too, in 20 years or so.

But what about that whole, "follow your passion and everything will work out" advice that you hear from every successful entrepreneur/politician/scientist?  What about doing what you love?  I majored in English because I liked it and I was good at it.  I went to grad school for the same reason, but along the way I found Siegel's "drudgery and toil".  I knew it was time to leave when I had stopped reading for pleasure.  Indeed, one of my Georgetown professors told another classmate she was unsurprised to hear I was leaving graduate school--I loved reading too much to study literature.  Plus it became starkly clear that the best I could do would be a tenure track job in the middle of nowhere, and I'd be lucky to get it.  

I went to law school because I thought it would be interesting.  I surprised everyone who knew me for choosing corporate work for the same reason.  It worked out well for me.  And the odds of getting a job were, then as now, a heckuva lot better than for literature Ph.Ds.

I'm emphatically not Pollyannically chirping, "Just follow your passion, and the rest will take care of itself!"  The best lessons of the law school scam movement seem to me to be  to take a hard look at why you're going to law school, how much it will cost, and how well you think you'll do.  Reevaluate after the first year.  For us legal educators, think hard about how to fix law school.  But for some people it's absolutely the right decision.  The question is how best to sort, right?  Education, like any investment, is in some sense a gamble.  Past performance is no guarantee of future results.  

I know I struck the right passion/payoff balance, but will my kids be able to do the same? I'm still not sure what to tell them in 20 years.  Luckily for me, they probably won't even ask my opinion...

 

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June 19, 2012
UVa, Facebook, and Me
Posted by Usha Rodrigues

Like many alums (including Steve Bainbridge), I've been increasingly dismayed at the Board of Visitors summary firing of Theresa Sullivan in only her second year as president of the University of Virginia. I won't get into the merits, although I've recently written on a related topic in the context of for-profit boards, and I am kicking myself for not getting a draft up on SSRN. The Washington Post quotes Jane Batton, of the Batton family that is arguably the biggest donor in the school's history (clocking in at a cool $170 million): "There may be good reason to replace President Sullivan — I don’t know — but it was handled in the worst possible way that has caused damage to the university."  That sounds about right.

On the meta-level, what's struck me is how different my experience of this controversy is compared to what it would have been 6 years ago.  Back then, I would have been obsessively following the story, checking the Daily Progress, WaPo, the Richmond-Times Dispatch, and using Google searches to get the latest.  Maybe I would have been cc'd on an email blast from a concerned alum. 

Now, every morning I scroll through my friends' status updates (yes, I'm on Facebook.  No, if you're a current student you cannot friend me) and get up to speed on what's happened.  More than that, by commenting on others' status updates I've talked with people passionately interested in this topic, many of them strangers, engaging in a real back and forth of ideas and questions.  Friends that I'd forgotten or never known had any connection with Virginia shared their thoughts and concerns and conspiracy theories.  Facebook (and Larry Sabato's twitter feed) have connected me to events unfolding 500 miles away to a degree that I find hard to believe.

No, my point isn't just that social media can be transformative.  Yes, I have heard of the Arab spring.  But even in a non-repressive regime, Facebook has its uses.  Facebook scorn is somewhat in vogue now.  Bumbled IPO, no path to profit, who uses it anyway?  Rich Karlaard of Forbes writes: "I have not visited my Facebook page in two months. Almost every professional person I talk to who is over 25 years old has grown bored with Facebook." 

I'm not bored. When something's happening in a corner of the world I care about, Facebook delivers.  On ordinary days there's certainly time-suckage, but I'm not the kind of worker that can go non-stop.  I need breaks between substantive work. 

And Facebook beats the heck out of my old standby, Minesweeper

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May 11, 2012
"Ten in Texas": The $10,000 University Plan
Posted by Christine Hurt

Near my hometown, there was a ranch that covered 3 million acres called the "XIT Ranch."  The myth (which seems to be wrong) was that the cattle brand "XIT" stood for "Ten in Texas."  The story stuck, and the term "Ten in Texas" has been used for any number of things.  Maybe because it's just catchy.  Ten is a nice round number.  So maybe that's why in February Gov. Rick Perry challenged each of the Texas universities to come up with a university degree that costs $10,000.  Not per year, total.  A number that is, in fact, 1/4 to a 1/3 of what Texas university degrees cost now, without room and board (Texas costs $41,168 without room and board).

So, Texas universities are now rolling out their $10,000 plans.  Most of these have a common theme:  get the bulk of your degree somewhere else.  (Sort of like that joke, "How do you get a million dollars?  First, start with two million dollars.")  The plans fall into two categories:  the high school/university combo or the community college/university combo..  The first type of plan requires students to take college-level courses during high school, probably at a community college, then finish at a particular campus.   The Texas A&M plans like this so far require students to finish at A&M -- Commerce or A&M San Antonio, and can choose from a small number of majors.  The University of Texas system has delivered a proposal at on of its campuses, UT - Permian Basin, the Texas Science Scholars Program, which enrolls a small number of students who are able to test out of a chunk of math and science and go on a limited number of STEM majors.  The students must maintain a 3.0 in these courses.  The degree costs more than the $2500 a year, but is subsidized by enrolling more students at UT-Permian Basin paying the full cost.  In other words, it's not really a $10,000 degree, it's a scholarship program.

My own university, Texas Tech, is finalizing a plan that would require applicants to have finished 80 hours at a community college, then 40 hours at Tech. 

So, I wouldn't say that any Texas university has created a $10,000 degree.  They have created limited programs to award the final 1/3 to 1/2 of a degree, or they have created small scholarship programs subsidized internally.  None of these are bad ideas, of course, and they are based on what already happens.  Texas students have been taking cheaper courses at community colleges and transferring since forever, and Texas universities have been admitting students on scholarships forever.  (I had the $0 degree.)  And, students have been going to non-flagship campuses, which are cheaper, for a long time.  So these new programs aren't really going to change the cost of a Texas degree much at all, and they aren't going to change the face of university education any time soon. 

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April 19, 2012
Position Announcement: Business Law At Georgia Tech
Posted by David Zaring

The College of Management 

Faculty Position in Business Law

The College of Management at the Georgia Institute of Technology is seeking applications for a faculty position in Business Law beginning Fall 2013. Applications at the associate and full professor level will be considered. Preferred areas of expertise include, but are not limited to, intellectual property, environmental law and/or sustainability, and legal aspects of health care. A Juris Doctor and evidence of scholarly research and the ability to teach the College's business law offerings at the undergraduate and graduate level are required. The normal course load is three courses per academic year. Excellence in teaching and a high level of research productivity are expected.

The College of Management is AACSB accredited and has over 1300 undergraduate students, almost 500 MBA students, 59 Ph.D. students, and almost 150 students in the Management of Technology Executive MBA program, and the Global Executive MBA program.

The MBA program is ranked 32nd by U.S. News & World Report and 23rd by Bloomberg Business Week. The College is housed in a state of the art $55 million facility in midtown Atlanta. The College is the home of the Technology Innovation: Generating Economic Results (TI:GER), a U.S. Department of Education funded Center for International Business Education and Research (CIBER), and the Institute for Leadership and Entrepreneurship. The College hosts an annual Roundtable on Engineering Entrepreneurship Research, and an Impact Speakers Series featuring CEOs of technology companies. The College provides an intellectually stimulating research environment. Faculty members are active in research and publish in leading journals, books, monographs, and conference proceedings.

The College of Management offers a competitive salary and outstanding benefits. Additional information regarding the College can be found at www.mgt.gatech.edu.

To apply, please send a vita and cover letter indicating your education, relevant experience, research publications and interests no later than October 1, 2012 to recruit-law@mgt.gatech.edu.

A part of our process involves capturing statistical information on our applicants. To participate, please complete the form found at: http://mgt.gatech.edu/downloads/ga~tech~disclosure.doc and email it to

vdf-email@mgt.gatech.edu. 

Packages sent by mail will not be accepted. All documents must be in Microsoft Word or Adobe.pdf format.

Georgia Tech is an equal opportunity/affirmative action employer which values diversity.

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February 12, 2012
Social Capital-ism: Do We Need Parental Investment Caps?
Posted by Christine Hurt

A few days ago, the NYT published an article about a recent study that show that the education gap between high and low income families is growing.  Both the gap between those in the 10th and 50th percentile, between 50th and 90th percentile, and 10th and 90th percentile are growing as measured by test scores of children.  And, the gap is present in kindergarten and doesn't narrow or widen appreciably.  Finally, this gap has widened at the same time that the racial achievent gap has narrowed substantially.

The author of the study situates it in within the current income disparity debate (title:  "The Widening Academic Achievent Gap Between the Rich and the Poor"), as does the NYT article ("Education Gap Grows Between Rich and Poor").  However, the author notes that his findings do not confirm or support the theory that the academic gap is primarily a result of the growing income disparity between the top 1% and the rest of the country.  More important, the author finds, is that above the median income, families are investing more in their children per earned dollar and getting results.  The author cites to studies describing how, in the past few decades, child-rearing advice has shifted from how to keep small children clean, well and quiet to how to keep them stimulated and jump start their learning processes. This study, cited by the NYT, shows the increase in dollars spent on children split into income deciles.  And, as these families earn more dollars, they continue to spend the same percentage (more dollars) on their children. 

What interests me is that these articles and studies suggest that there is a serious problem here.  And, presumably, that this is a problem that should be corrected, though no one is suggesting how.  I guess I'm crazy, but there's an underlying story here that is positive.  People are investing in their children, and their children are benefitting from the additional hours and dollars that parents spend today.  Nowhere in these studies does it say that the 10th percentile are testing worse at the end of the time period than at the beginning.  (They also don't say that the 10th percentile are doing better, but I presume that if that group were doing worse, then it would benefit the study to say so.)  So, we have had a net increase in parental investment.  Isn't that a good thing?  Obviously, it would be a better thing if every child in the study had the highest amount of parental involvement observed, regardless of income.  And, there is a sobering reality that the parents of the children in the 10th percentile do not have the same amount of time or money to invest as those in the 90th percentile.  And, it is very bad news that in the lower deciles, real income is decreasing.  But what is the solution?

One of those quoted in the articles stresses that the difference is in parenting, not in pure income.  So, giving families more money to spend is not going to necessary result in more investment of time or money.  If this was a consequence of kids going to school without three meals a day or materials, then government can try to fix that, a la the War on Poverty.  Or, if the gap widened during K-12, then have more public investment in education in low-income schools.  But it's unclear what strategy is necessary to duplicate an existence in the upper deciles in which children are more likely to have two educated and involved parents with time to devote to modern parenting strategies and therefore show up in kindergarten at an advantage.

But in the meantime, these studies seem to strike a tone that it's lamentable that 90th percentile earners are engaging in "concerted parenting."  (For those of you wondering, 90th percentile would be a family with one BigLaw junior associate and an at-home spouse.  The tenth decile begins there and ends with Mark Zuckerberg.)  Whether we use the phrase "Tiger Mom" or "Helicopter Parent," we should applaud more engaged parenting, right? 

 

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December 17, 2011
Signing Off and Thanks for the Opportunity
Posted by Marcia Narine

Thanks to Erik Gerding for the opportunity to share some of my ideas on corporate criminal liability, Dodd-Frank, corporate influences on individual behavior and educating today's law students only three months into my new academic career. I appreciate the thoughtful and encouraging emails I received from many of you. I even received a request for an interview from the Wall Street Journal after a reporter read my two blog posts on Dodd-Frank conflicts minerals governance disclosures. We had a lengthy conversation and although I only had one quote, he did link to the Conglomerate posts and for that I am very grateful. 

http://online.wsj.com/article/SB10001424052970203733304577102412994084008.html?mod=WSJ_PersonalFinance_PF17#articleTabs%3Darticle

I plan to make this site required reading for my seminar students, and look forward to continuing to learn from you all.  

Best wishes for the holiday season and new year.  

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December 16, 2011
Educating Today’s Law Students to Be Tomorrow’s Counselors and Gatekeepers
Posted by Marcia Narine

Law schools are under attack. Depending upon the source, between 20-50% of corporate counsel won’t pay for junior associate work at big firms. Practicing lawyers, academics, law students and members of the general public have weighed in publicly and vehemently about the perceived failure of America’s law schools to prepare students for the real world.

Admittedly, before I joined academia a few months ago, I held some of the same views about lack of preparedness. Having worked with law students and new graduates as outside and in house counsel, I was often unimpressed with the level of skills of these well-meaning, very bright new graduates. I didn’t expect them to know the details of every law, but I did want them to know how to research effectively, write clearly, and be able to influence the clients and me.  The first two requirements aren’t too much to expect, and schools have greatly improved here.  But many young attorneys still leave school without the ability to balance different points of view, articulate a position in plain English, and influence others.

To be fair, unlike MBAs, most law students don’t have a lot of work experience, and generally, very little experience in a legal environment before they graduate.  Assuming they know the substantive area of the law, they don’t have any context as to what may be relevant to their clients. 

How can law schools help?

First, regardless of the area in which a student believes s/he wants to specialize, schools should require them to take business associations, tax, and a basic finance or accounting course.  No lawyer can be effective without understanding business, whether s/he wants to focus on mom and pop clients, estate planning, family law, nonprofit, government or corporate law. More important, students have no idea where they will end up after graduation or ten years later.  Trying to learn finance when they already have a job wastes the graduate’s and the employer’s time.

Of course, many law schools already require tax and business organizations courses, but how many of those schools also show students an actual proxy statement or simulate a shareholder’s meeting to provide some real world flavor? Do students really understand what it means to be a fiducuiary?

Second and on a related point, in the core courses, students may not need to draft interrogatories in a basic civil procedure course, but they should at least read a complaint and a motion for summary judgment, and perhaps spend some time making the arguments to their brethren in the classroom on a current case on a docket. No one can learn effectively by simply reading appellate cases. Why not have  students redraft contract clauses? When I co-taught professional responsibility this semester, students simulated client conversations, examined do-it-yourself legal service websites for violations of state law, and wrote client letters so that the work came alive.

When possible, schools should also re-evaluate their core requirements to see if they can add more clinicals (which are admittedly expensive) or labs for negotiation, client consultation or transactional drafting (like my employer UMKC offers). I’m not convinced that law school needs to last for three years, but I am convinced that more of the time needs to be spent marrying the doctrinal and theoretical work to practical skills into the current curriculum.

Third, schools can look to their communities. In addition to using adjuncts to bring practical experience to the classroom, schools, the public and private sector should develop partnerships where students can intern more frequently and easily for school credit in the area of their choice, including nonprofit work, local government, criminal law, in house work and of course, firm work of all sizes.  Current Department of Labor rules unnecessarily complicate internship processes and those rules should change.

This broader range of opportunities will provide students with practical experience, a more realistic idea of the market, and will also help address access to justice issues affecting underserved communities, for example by allowing supervised students to draft by-laws for a 501(c)(3). I’ll leave the discussion of high student loans, misleading career statistics from law schools and the oversupply of lawyers to others who have spoken on these hot topics issues recently.

Fourth, law schools should integrate the cataclysmic changes that the legal profession is undergoing into as many classes as they can. Law professors actually need to learn this as well.  How are we preparing students for the commoditization of legal services through the rise of technology, the calls for de-regulation, outsourcing, and the emerging competition from global firms who can integrate legal and other professional services in ways that the US won’t currently allow?

Finally and most important, what are we teaching students about managing and appreciating risk? While this may not be relevant in every class, it can certainly be part of the discussions in many. Perhaps students will learn more from using a combination of reading law school cases and using the business school case method.

If students don’t understand how to recognize, measure, monitor and mitigate risk, how will they advise their clients? If they plan to work in house, as I did, they serve an additional gatekeeper role and increasingly face SEC investigations and jail terms.  As more general counsels start hiring people directly from law schools, junior lawyers will face these complexities even earlier in their careers. Even if they counsel external clients, understanding risk appetite is essential in an increasingly complex, litigious and regulated world.

When I teach my course on corporate governance, compliance and social responsibility next spring, my students will look at SEC comment letters, critically scrutinize corporate social responsibility reports, read blogs, draft board minutes, dissect legislation, compare international developments and role play as regulators, legislators, board members, labor organizations, NGOs and executives to understand all perspectives and practice influencing each other. Learning what Sarbanes-Oxley or Dodd-Frank says without understanding what it means in practice is useless.

The good news is that more schools are starting to look at those kinds of issues. The Carnegie Model of legal education “supports courses and curricula that integrate three sets of values or ‘apprenticeships’: knowledge, practice and professionalism.” Educating Tomorrow’s Lawyers is a growing consortium of law schools which recommends “an integrated, three-part curriculum: (1) the teaching of legal doctrine and analysis, which provides the basis for professional growth; (2) introduction to the several facets of practice included under the rubric of lawyering, leading to acting with responsibility for clients; and (3) exploration and assumption of the identity, values and dispositions consonant with the fundamental purposes of the legal profession.”  The University of Miami’s innovative LawWithoutWalls program brings students, academics, entrepreneurs and practitioners from around the world together to examine the fundamental shifts in legal practice and education and develop viable solutions.

The problems facing the legal profession are huge, but not insurmountable. The question is whether more law schools and professors are able to leave their comfort zones, law students are able to think more globally and long term, and the popular press and public are willing to credit those who are already moving in the right direction.  I’m no expert, but as a former consumer of these legal services, I’m ready to do my part.

 

 

 

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