So what do the real lawyers think about the job we in the academy are doing training the corporate lawyers of tomorrow? The news from the front is generally good, at least according to yesterday morning’s panel, Perspectives from Practice. I had to duck out of the session early, but here are a few highlights:

James D.C. Barrall wants us to teach students how to draft a memo, not a law review article. He thinks we do a good job teaching students how to think and analyze. One improvement would be to teach students how to write better. [Blogger note: this is one of my bugaboos. Writing skills are crucial, but law school isn’t really set up to teach them. Apparently high schools and colleges are falling down on the job.] He also emphasized communication skills, and how important understanding and even empathizing with your client is. [Blogger note: asking law school professors to teach “soft” style interpersonal skills might appear to some like asking the blind leading the blind].

Andrew Petillon suggested three new areas for course offerings: Regulation of Investment Advisors or Companies (1940 Act); Regulation of Broker-Dealers; and Securities Enforcement and Litigation. [Blogger note: we do teach that last one at Georgia.] Several speakers stressed the importance of taking Securities Regulation. [Blogger note: I cannot echo this enough. My students know that I am adamant on this point. My spiel goes like this: “you can’t learn everything in law school, but you should take classes that it would be difficult to pick up on the fly. Securities Regulation is just such a class.”]

Finally, I have to give a shout-out to Michael A. Woronoff, who I know is a Glom reader. A contrarian, he advised law schools to stick with their comparative advantage—teaching doctrinal classes—and leave the skills training to law firms. [Blogger note: I had to duck out in the middle of Michael’s talk, but I’ll raise a counterpoint here: these days it’s all too clear that many students will not go the Big Law route and thus will never experience all that great training. Indeed, most Georgia students start out at small to midsize firms, if they go the law firm route at all.] As Michael acknowledged, the trend is the reverse, introducing more skills training into legal education. Indeed, that was the subject of my panel: Integrating Transactional Law in the Traditional Courses.

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In our Business Organizations casebook, Cindy Williams and I have included a number of business school style case studies. This summer, I am in the process of creating some new case studies (suggestions welcome) with the goal of having at least one case study per chapter in the next edition of the casebook. Why do I teach case studies? And why do so many of our adopters tell us that they value that feature of the book?

This afternoon at the AALS Mid-year Conference on Business Associations, in a session on case studies featuring Faith Stevelman (New York Law School), George Geis (Virginia), and Jacqueline Lipton (Case Western), I articulated a justification for using case studies alongside the usual law school source materials, judicial opinions. The key feature of legal case studies that makes them distinctively useful as a pedagogical tool is that they allow factual analysis unfiltered by the litigation process. This can be important for a number of reasons, but it is especially important if you are interested in teaching the students about business relationships, rather than just legal doctrines.

When I teach Business Associations, I want the students to understand why parties to business relationships behave the way they do. Legal doctrines are an important part of that story, but focusing on judicial opinions exaggerates the role of legal doctrines. I don't intend this observation as a criticism of judicial opinions, but rather as a simple acknowledgment that judges are paid to decide cases, not to describe business relationships. As a natural result, the facts in judicial opinions are tailored to respond to particular doctrinal demands. If you were interested in understanding the role of legal doctrines relative to other forces in determining how business people behave, however, you would want a much richer set of facts than is typically provided by judges. When well written, case studies provide that richer set of facts.

Rich facts also have other advantages. Two seem particularly important in the Business Associations context. First, rich facts enable law students to learn business concepts more thoroughly. One of the major challenges in teaching Business Associations is that most law students have no prior business experience, but they need to understand business if they want to become effective business lawyers. Or even understand the legal doctrines that many of them think are the sole focus of the course. In my experience, case studies are much more effective than judicial opinions at teaching business context.

Second, rich facts allow students to practice the skills of transactional lawyering. Later this week, we will have a Workshop on Transactional Law here in Long Beach, so I hope to write more about this topic then, but for the moment, I will be content with this: the skills of a transactional lawyer that are enhanced through the use of case studies include the ability to pull from myriad potentially relevant facts the most important facts relating to a particular issue (a task performed for the students -- albeit sometimes clumsily -- by lawyers and judges in a litigation context) and the ability to think prospectively, seeing the implications of various facts on the future behavior of the parties in a business relationship.

In the session on case studies in which I made the foregoing observations, Don Langevoort (Georgetown) added an important point about a limitation that case studies share with judicial opinions: with both materials, the facts are taken as a given and the students are tasked with analyzing those facts. But students would also benefit from working in a context in which facts are evolving, such as a clinic or simulation. Excellent point. It does not diminish my enthusiasm for case studies, but suggests that the teaching of Business Associations still has a long ways to go for most of us.

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I’m here in Long Beach live-blogging the AALS Mid-Year meeting. The first session’s title is Role of the Basic Course: What is it and Where is it Going? Bob Thompson led off with an update to his 1998 survey. There was too much information for me to scribble down, and I hope Bob will publish his full results. One highlight was that most of us appear to be offering 4 credit hours, and in 2 weekly sessions. [Blogger note: We’re still at 3 credits 3 times a week at Georgia, but maybe we’re behind the times…]

Bill Carney offered an evolutionary perspective which I largely missed because I snuck out of the session to grab my laptop. He ended with a reference to the massive entity shift we’ve seen to LLCs, and the reflection (doubtless warming Larry Ribstein’s heart) that unincorporated entities are foundational and we are largely failing our students by not integrating LLCs more into the basic course. [Blogger note: As my Corporations students know to their sometime sorrow, we cover about 4 weeks of partnerships and 1 week of LLCs. We move FAST.]

Our own Christine integrates tax and accounting in BA to an impressive degree.. My favorite quote: “In BA we teach stories of people who hate each other. They didn’t before, but now they do.” [Blogger note: mindful of all the non-business, math-fearing law students out there, I always open my first class with: “Don’t be scared. All we’re going to talk about is relationships. Relationships between partners; relationships between shareholders, managers, and directors; family relationships, particularly in the close corporation context. It’s just relationships.” ]

Jeff Lipshaw spoke about the difficulties of integrating a business understanding into the course. My favorite tidbit: he quoted Ron Gilson that in moving from corporate law practice to law teaching you shift from being a beetle to being an entomologist, and added a Lipshavian wrinkle: “We are entomologists trying to teach beetles how to be beetles.” [Blogger note: I don’t like beetles.]

Cheryl Wade emphasized making connections between Business Associations and the real world. She integrates current events into her class, using stories not from the Wall Street Journal (which many professors seem to require their students to read) but from the general news to talk about the duty of care. She also tries to make time to discuss race, class and gender, particularly in the sub-prime mortgage crisis. Even when she doesn’t have time, she points out that BA is an implicit discussion of race, class, and gender: wealthy white men.

I’ll close with the question our moderator Larry Ribstein opened with: Are we preparing the Main Street lawyers of tomorrow to be the Wall Street lawyers of yesterday? And if so, why?

Updates: Jeff has written about beetles before.  And if you've ever wondered how to prepare to moderate a AALS Mid-year meeting panel (and honestly, who hasn't wondered?), see here.

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We shifted to student presentation mode in my Lifecycle of a Corporation seminar about 2 weeks ago.  Here are a few reasons why I'm a fan:

Public speaking is a vital skill for a fledgling transactional attorney--right up there with drafting and negotiating.  I was floored when a 3L told me that this class, in his last semester, was the first in his law school experience to require a sizable presentation.  I'm not sure we law professors are asking enough from our students in this regard.  Being able to stand up in front of people and explain a topic is key.

It lets students guide the class.  My class is structured as a kind of "greatest hits" of a corporation's life: founding, venture financing, going public, being public, M&A, and bankruptcy.  After that foundation, the class takes us where it wants.  I'm always amazed at the variety of topics: this year we've heard about series LLCs, taxing hedge funds, say on pay, the EU market for corporate charters, orphan drugs, off-shoring, XM/Sirius, poison pills, and angel investing, to name just a few topics

It makes students more thoughtful listeners.  Before class I pass out index cards to the student-audience, and ask them to list one aspect of the presentation to maintain and one to improve.  Prompted by a student suggestion from last year, the cards keep the students focused on the presentations and provide the presenter instant feedback in a way that I cannot.  As an unexpected side benefit, the process of thinking critically about their peers' strengths and weaknesses has improved the student presentations as a whole.  They're grappling with the problem of presenting difficult concepts to an uninitiated audience.  Many are even assigning homework to try to get the class up to speed and make better use of precious class time.

It gives students a newfound respect for what I do.  OK, this wasn't why I started the student presentations, but it's a pleasant side-effect.  They're consistently amazed at how fast 20 minutes goes by, and several have asked, "How do you know how much time something will take?"  Answer: I don't.  Timing was the hardest thing for me as a rookie and I still struggle with it.  That's the thing about the Socratic method: last year the student you called on might have floundered around point X for 10 minutes. This year's student might get you to X in 30 seconds. 

Oh, and on the Socratic method: I evaluate the students on their ability to engage the class, and several brave souls have attempted calling on their peers.  My favorite exchange thus far:

Student presenter: Question

Student: Answer

Student presenter: "That wasn't the answer I was looking for..."

How many times have I felt that way in a classroom?

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Thanks again to Gordon and Christine for inviting me to post over the last two weeks.  I wanted to conclude with a post on teaching. 

I'm trying to design an executive compensation syllabus.  I hope the course accomplishes two things: getting students who are generally interested in the subject (and who isn't these days) thinking in a more rigorous way and preparing (a subset of) students to actually practice in the field.  In fleshing out the syllabus, I've run up against a problem - Section 409A of the IRC which establishes rules for deferred compensation.  409A is perhaps the most important topic for compensation lawyers today, touching almost everything that they do.  On the other hand, 409A is probably not such a big deal to the general audience.  Moreover, the regulations are incredibly convoluted even by Treasury's standards (for just a taste, see Michael Doran's summary (hat tip: Paul Caron)).  The rules are so difficult that they've even inspired a blog called 409A Dismay.

Although 409A no longer keeps me up at night like it did when I was practicing, it does pose a problem for me in my current job: how do I teach it?  409A creates splits my two goals.  For the general audience, how do I keep the vast but technical issue from swallowing up all of our class time?  For the people who will be practicing in the field in a number of months, how can I justify not spending more time on this enormous body of law that will soon confront them? 

I'll probably go the minimal route (2 classes) on the theory that most firms with exec comp practices are set up to train incoming associates from scratch.  But I suspect I'll feel bad if/when I tell the class that there's a lot more to be said, but it's too complicated to do in the time we have.     

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On his retirement from the Stanford Graduate School of Business, legendary organizational theorist Jim March addressed his faculty colleagues, reflecting on the varied motivations for human action, one of the enduring themes of his scholarship. March observed that the social sciences, particularly economics, portrayed human action as the result of a rational choice. March called this form of reasoning the “logic of consequence.” It is the domain of incentives and calculation.

But March cautioned his colleagues not to forget “a second grand tradition for understanding, motivating, and justifying action,” a tradition that views action as “based not on anticipations of consequences,” but as “attempts to fulfill obligations of personal and social identities and senses of self.” He called this the “logic of appropriateness.”

While these observations may seem incongruous, given the occasion and the audience, March assured his colleagues that they held “some mundane implications for those of us who claim to be educators.” We teach and write, March said, partly because those activities produce consequences that we value, but we also engage in those activities as an expression of our faith in the intrinsic value of ideas. We teach and write because we feel impelled to do these things, not for potential rewards, but because being a teacher or a scholar is who we are. March compared institutions of higher learning to temples:

A university is … a temple dedicated to knowledge and a human spirit of inquiry. It is a place where learning and scholarship are revered, not primarily for what they contribute to personal or social well being but for the vision of humanity that they symbolize, sustain, and pass on…. Higher education is a vision, not a calculation. It is a commitment, not a choice. Students are not customers; they are acolytes. Teaching is not a job; it is a sacrament. Research is not an investment; it is a testament.

Does this resonate with you? It does with me. For March, this attitude toward higher education has real-world implications:

The complications of confronting the ordinary realities of day-to-day life often confound such lofty sentiments, and I would not pretend that it is possible or desirable to ignore consequences altogether. But in order to sustain the temple of education, we probably need to rescue it from those deans, donors, faculty, and students who respond to incentives and calculate consequences and restore it to those who respond to senses of themselves and their callings, who support and pursue knowledge and learning because they represent a proper life, who read books not because they are relevant to their jobs but because they are not, who do research not in order to secure their reputations or improve the world but in order to honor scholarship, and who are committed to sustaining an institution of learning as an object of beauty and an affirmation of humanity.

I don't know the backstory here, whether March was reacting to a particular dean, but it reads like he has had some experiences with "deans, donors, faculty, and students who respond to incentives and calculate consequence." I count myself fortunate that my deans have been uniformly excellent on this front.

If you want to read March's entire speech, the published version of it is here.

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The legal blogosphere is all atwitter with the news that Harvard is following Stanford and Yale into the realm of pass-fail grading. The main objections to this system are twofold: pass-fail grades provide less information than more textured grading systems, and pass-fail grades encourage slacking among students. (On slacking, see Brian Leiter's experience teaching at Yale.) Meanwhile, the perceived advantages of the system are varied, though most seem at least a little bit dishonorable:

• For the faculty at these law schools, "fewer grading distinctions means much less time grading." (Orin)
• The pass-fail system is "very popular with students, in part because it enables those at the bottom of the class to post respectable transcripts that make it difficult to tell exactly where they stand relative to their classmates." (Ilya)
• For the law schools, pass-fail grading makes them more competitive with their peer schools. (Brian)

I have twice been involved in debates about changing grading systems, and after the second round, I decided never to be drawn into the fray again. The arguments go around and around on the same issues with no sense of closure.

But those were debates about the relative merits of the traditional 4.0-scale versus other ranking methods. The "new" systems -- which in practice result in two grade levels (Honors and Pass) -- seem fundamentally different from other grading systems in the level of competition engendered by the grading system. While ambitious Yale law students might be driven to compete for Honors designations, the competitive environment of Yale Law School seems quite muted in comparison with, say, Chicago.

Folks like Orin Kerr or Appalled Chicago Lawyer see the benefits of competition, but competition for grades has costs, too. As noted last fall, BYU was ranked by Princeton Review as "Most competitive law school," and in the past year I have been able to observe some of the effects of that competition. We have great students in terms of LSATs and GPAs, but the focus on grades here is intense. (And to my friends from Vandy, I take back what I wrote about that school being "hands down the most competitive law school I have seen up close.") In speaking with students, I am told that the source of the competition is attributable in large part to the bimodal distribution of law firm salaries. The fact is, if you want elite clerkships or elite law firm placements coming out of BYU, you need to do well.

Now, if you believe that scores on law school exams reflect real learning, this sort of competition seems like a good thing. On the other hand, if you believe (as I do) that an intense focus on grades sometimes comes at the expense of real learning, this sort of competition is a cause for concern. As it happens, I was reading up on law school reforms when the Harvard story broke, and I had just read the following passage from Bonita London et al., Psychological Theories Of Educational Engagement: A Multi-Method Approach To Studying Individual Engagement And Institutional Change, 60 Vand. L. Rev. 455, 457 (2007):

For many students, the institutionally sanctioned grading and ranking procedures create a distinct hierarchy among the students that translates into later potential for success. Thus, the perceived cost of falling short of one of these coveted top spots is high, e.g., less competitive internships and job prospects. A culture of competition for limited resources can make the goal of collaboration or of engaging the course material in a deep and reflective process less likely. This competitive environment may result in students not only disengaging from a learning-focused approach to the material in favor of an approach that maximizes performance, but also may lead to strained relationships among students as they compete against each other for the same limited resources.

In weighing the various grading systems, law schools must consider multiple constituencies, but I suspect that all of those constituencies would value a law school with a culture of collaboration and engagement. While I doubt that any grading system can create such a culture, does one grading system stand above the others in not undermining attempts to develop that culture? Or does the essential scarcity of elite clerkships and elite law firm placements necessarily undermine attempts to encourage collaboration and engagement?

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In prior posts on teaching, I have mentioned the "present and prepared" system. (See my syllabus for a description.) This system is not my invention -- I associate it with Randy Barnett, though I can't find any evidence on the internet regarding its origins -- but I have used it in various classes for many years. For some reason -- perhaps because BYU is the most competitive law school in the country or because I am the only professor at BYU who currently uses this system -- I have had more requests for special exceptions than I have received at any other law school. These requests have forced me to think more precisely about the goals of the system, and this post contains some reflections on that issue.

When students miss classes, the effect is not only to deprive the missing student of the experience, but to deprive the missing student's classmates. This effect is particularly important in a class that is highly interactive, like my class this semester. The purpose of the "present and prepared" system is to reward students for their contributions to the quality of the classroom experience. Obviously, the system assumes that students make contributions merely by being in class, having done the reading. In my experience, that is a reasonable assumption.

The "present and prepared" points are available to all students equally. No curve. But the system does not have the desired effect if students miss too many classes. Whether students miss the classes because they are lazy or because they are doing some noble work is irrelevant to what happens in the classroom. The fact is that when students are gone, their contributions are missed.

Of course, everyone has circumstances during the semester that may require them to be away from the law school, so I do not expect students to be perfect in their attendance and preparation. Moreover, I cannot effectively determine on a case-by-case basis which absences are reasonable and which are not -- and the thought of attempting to administer such a system would make me surrender before I even began -- so I have made a judgment that students who are present and prepared for roughly 85% or more of the classes deserve to be rewarded for their efforts with full credit, while students who are present and prepared for roughly 70% or more of the classes deserve to be rewarded for their efforts with half credit. I could have set these percentages higher or lower, but those seem like reasonable expectations to me.

At the beginning of this semester, one of my students observed that she would not have any of "her days" left over if I counted callback absences against her. Somehow, she got it into her mind that the days on which she would be doing call backs were separate from "her days." I suggested that she had the wrong idea about "her days." The point is not to have five personal days plus any number of additional absences, as long as you have a good reason.

In the past, I have made accommodations for people who are seriously ill or have other debilitating problems. Otherwise, I assume students allocate their days to their best uses, whether those uses are call backs or family reunions or trips to the hospital. But if a student cannot attend at least 85 percent of the classes, it seems to me that the student shouldn't expect the same reward as someone who has been able to achieve that. In the end, about two-thirds of the class typically receives full credit and another one-sixth or so of the class receives half credit. Those numbers suggest that the policy is not overly harsh, and the effect on the quality of the classroom discussion is substantial.

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In a prior post, I was bragging about moving my PowerPoint lectures outside of the classroom by creating presentations with audio through Adobe Presenter. This is a lot of work, by the way, and I am not doing this just for fun. But why am I doing it? Yesterday, I received this email from one of my students: "I apologize if this seems like a dense question, but after watching the slides and doing the reading, it seems like they cover exactly the same thing.  Am I correct about this?"

Um ... yeah. Suddenly, I realized that by moving the slides outside of the classroom, I had changed their function. This was my response:

Actually, that is not only a perfectly sensible observation, but it also made me stop to consider why I am doing these slides. (That was sort of implied in your question, right?)

When I first started PowerPoint in the 90s, I used the slides as a means of getting everyone's brain on the topic in class. Then it occurred to me that this was not a terribly valuable use of class time. So I revised my slides to aid in organizing the class discussion. Rather than just lecturing from them, I would use them in conjunction with Socratic questioning. I actually liked that fairly well.

Putting them online destroys both of these functions, but several of your classmates have pointed out different functions: (1) some have told me that they are visual or aural learners, and the slides (especially the diagrams) really help them to understand the principles better; and (2) the slides provide an emphasis that the reading assignments lack (i.e., you can tell something about what I think it important by the subjects I choose to discuss and the subjects I choose to omit from the slides). Finally, I believe that repetition is quite beneficial to learning, so reading the book and listening to the slides are mutually reinforcing activities.

Now I will ask you the question that I asked my student: is that a convincing case for online slide presentations?

The question is whether using PowerPoint in this way is a material aid to learning. I should disclose the that students like the slides, and many have commented with approval on my decision to move them online. Some have told me that they listen to the presentations more than once. Another student told me that she takes notes while she listens and that having the presentations online allows her to stop the audio so that she can complete her notes or reflect on the principles being covered. Of course, she could do the same thing from the casebook, but she uses the slides (after reading, of course ... she is a conscientious student).

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Another professor recently told me that education is the only product that consumers want less than they paid for. Maybe that is true of some students, but I suspect the reason professors sometimes feel like that is because we misinterpret what some students are paying for. Many students value their legal education, but a significant minority seem to value only their diploma. For these students, keeping class simple -- one three-hour, crammable exam at the end of the semester -- is optimal.

By contrast, my class (here, here, here, here, for example) is a nightmare. When I first looked at the enrollment in my Business Associations course in August, I had 91 students. Within a few days after I sent my syllabus to the students, that number dropped to about 80. Today, we stand at 69.

What's the problem? Am a suddenly a horrible teacher? Maybe. But I have spoken to a number of the students who remain in the class, and they are uniformly enthusiastic. After the last class, one student wrote to me via email: "I now feel like if I learn remember nothing else from this semester, I will remember the material on partnership formation forever."

Another: "The exercise was actually very enjoyable and informative for me. I only hope the class got as much out of it as I did."

And another: "I really think that [the activities in class] are really helpful to the students because they enable the class to analyze and implement in simulated situations the principles learned in the reading assignments. For instance, today I got a better grasp on the importance of establishing a [business association] as soon there is the agreement. This helps to avoid confusion on the role played in the partnership by each participant."

And these are just the emails. At least a dozen students have told me orally during the past week that they feel engaged in the class and are very much looking forward to the remainder of the semester. Moreover, the students in my Quality Circle have offered extensive feedback, already helping me to work out many kinks, but the main thrust of their feedback is that the class is headed in the right direction, that this class seems much more useful to them than most of their traditional classes.

So what about those drops? When I inquired with other students, this is what I heard:

• Many students don't like teams from bad experiences as undergraduates. One student felt that this would account for most of the drops, at least the early ones.
• The present and prepared system (described in my syllabus) allows students to miss only a week and a half of classes before their grades are negatively affected. Some students feel the need to miss more than that to secure a summer job. I am sympathetic to this concern, and I actually changed the policy one week into the class to accommodate conflicts with on-campus interviews. In the end, however, I decided that this class would not function for the students who missed big chunks of the semester (one student told me that a student last year missed 32 days during the semester looking for a job!!!), so I held the line on excusing all recruitment-related absences. And I know that some students dropped for this reason.
• Some students told me that my class was just too much work. By establishing incentives to be prepared for every class period, giving mid-term evaluations, and assigning team projects, I was increasing the workload beyond what they were willing to bear.
• My favorite: this semester is my first time teaching this course at BYU, and I am using a new edition of my casebook ... which means that there are no canned outlines floating around the law school. The other section of this course, which will be taught next semester, has lots of outlines in circulation. Wow.

So what lessons should I take away from this? I used to see the high enrollments in my classes as a badge of honor (I'm popular! I'm a good teacher!), but this experience has made me reconsider that position. I am a relatively strict grader, so I have always known that students were not taking my classes because the classes were easy A's, but it never occurred to me that they were taking my classes because there were available outlines and I didn't demand too much of their brains until the few days before the final exam. I am not suggesting that high enrollments are a counter-indicator of teaching quality, but rather that enrollments may be skewed by the presence of students who are looking for a combination of entertainment value and limited demands on their time and energy, rather than a high-quality learning experience.

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One of the most important aspects my course re-design project this summer was my strategy to move my PowerPoint lectures outside of the classroom. When I explained to my teaching advisers at the BYU Center for Teaching and Learning the tension between my desire for adequate, if not comprehensive, coverage and the time demands of interactive, team-based learning, their first question was this: can you move any of your current classroom activities outside the classroom to free up more of your classroom time?

I have always used PowerPoint lectures to introduce new topics. These lectures condense and reformulate the readings, ideally providing students with simple takeaways on each topic. I try to keep these lectures short, usually around 5-10 minutes, and students rarely speak. These lectures seemed like perfect candidates for internet distribution.

Over the past few years, I have also used PowerPoint slides to discuss cases, and I have found that they can be very effective at giving students a "picture" of a case (usually a diagram tracking the various transactions that prompted the litigation). During these discussions, I typically call on a student or students, and we engage in the traditional Socratic analysis of the case. But as I reflected on this over the summer, I realized that these segments of class were not very engaging, nor were they as necessary for second- and third-year law students, who have traveled a good distance up the learning curve of legal analysis, as they were for first-year students. (See Steve Bainbridge, who also makes this point.)

While these PowerPoint sessions may not be the most valuable use of class time, the students seem to value them relatively highly. So I have decided to retain the activities, but move them outside the classroom.

The challenge then became a technological one. Lectures are easy to record, and PowerPoint slides are easy to produce, but I was looking for an effective means of combining the lecture with the slides. Enter Adobe Presenter. This simple add-on to Microsoft PowerPoint allows me to record a lecture in my office while syncing the lecture with the PowerPoint slides. You can see an example of the results here. We are still working out some of the technical kinks, and I need to become more comfortable speaking to a microphone, but I am encouraged by this first effort, and my goal is to do as many presentations as possible outside of class, reserving the class time for more active learning that I will blog about in a future post.

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Inspired by various posts on teaching around the legal blogosphere, Jerome M. Organ, Professor of Law and Associate Dean of Academic Affairs at the University of St. Thomas School of Law in Minneapolis sent me a thoughtful and provocative email, which I reproduce in relevant part below with Jerry's permission:

I am writing to try to tie some threads together from some of your observations, and Eugene Volokh's and  Ann Althouse's observations and some of the responses that you have received to your postings, particularly from students focused on grades and competition for grades and jobs.

Eugene Volokh stated – "I want to argue that students — though they of course pay lots of money to us — are not just customers of legal education, but are also in a sense a sort of employee: Law school classes rely on students' participating in the class, as a means of helping educate the other students. Learning, the theory goes, is a cooperative endeavor, in which students benefit from hearing each other's comments."

Ann Althouse, in response, stated – "They should feel an ethical responsibility to the classroom community they asked to join and to the rejected applicants they are displacing."

And yet, when you posted a syllabus explicitly requiring that your students work together as a "classroom community" and engage in "team" projects that might impact their grades, one student expressed significant reservations about collaboration (particularly if it impacted grades) and several people posted comments objecting to the team approach and demonstrating the view that law school is a competitive environment in which students must compete as individuals for grades (and the corresponding high paying jobs at a big firm).

There would appear to be a significant tension between what we as professors have as aspirations for our "classroom communities of learning" and for what students have been acclimated to understand as their "classrooms of competition."

Dean Cramton wrote 30 years ago about the "ordinary religion of the classroom," including the following quote on individualism, competition and professionalism:

. . . Too often the young lawyer must grope alone toward an effective strategy for mingling humanism and professionalism in the lawyer-client relationship.

The atomistic character of the student’s work in law school accentuates this difficulty.  Much professional work involves cooperative activity, but law school does little to assist a law student to work effectively as a member of a team.  The competitive environment of law school tends to pit each student against all others and, not surprisingly, feelings of isolation, suspicion, and hostility develop among students.

Knowledgeable observers comment that law students become more isolated, suspicious, and verbally aggressive as they progress through law school; their aptitude for verbal articulation increases, but they rarely stop to listen to others.  If so, will they be good counselors?  Will they need to unlearn a number of things in order to operate successfully as a professional?   The sharing, helping and serving aspects of human endeavor, especially important to future professionals, are not recognized adequately in the law school experience.

Roger C. Cramton, Ordinary Religion of the Law School Classroom, 29 Journal of Legal Education 247, 262 (1978)

If the "ordinary religion of the classroom" still communicates a message of individual, atomistic competition (and I would suggest that the student's response to your syllabus and some of the comments to your post evidence that this competitive environment remains as part of the "ordinary religion of the classroom"), then students are likely to act on that cultural signal and function based on competitive individualism and are going to be resistant to our calls for them to engage in a "classroom community of learning" based on a collaborative model.  Indeed, if I am functioning within a "competitive" context, and I believe I have a better understanding of the material than some of my classmates, my rational choice will be to refrain from participating (and possibly to participate with misinformation and sow confusion) so that I do not erode my perceived competitive advantage by "helping" my classmates come to a better understanding of the material.

My point here is that we are sending mixed signals. Eugene Volokh and Ann Althouse and Gordon Smith may be encouraging, perhaps somewhat explicitly, the communal nature of the learning experience where each participant benefits from the insights and contributions of a diversity of voices drawing on different educational and experiential backgrounds, but there appear to be other "signals" our students are receiving (from us or others on the faculty or from each other) that convince many of them that this is an atomistic competitive environment in which collaboration and teamwork are to be avoided (and perhaps disdained).

Notably, for those students pursuing joint degrees, particularly JD/MBA students, the cultural shift from the atomism of legal education to the collaboration of the business school environment can be jarring.

The reality is that law school can be (and should be) more collaborative.  This happens in clinical contexts and perhaps intermittently in some courses, but I suspect very few law schools are intentional about creating an institutional commitment to collaborative learning that overrides the culture of individual, atomistic competition that Cramton described and which still manifests itself in this new millenium.

Here at the University of St. Thomas, we have tried to tackle this issue to some degree with a week-long introductory course as part of our Orientation Week in which we have students read and discuss excerpt's from Cramton's article, Joseph Singer's recent article on Normative Methods for Lawyers, my colleague Rob Vischer's article Legal Advice as Moral Perspective, Patrick Schiltz's article On Being a Happy, Healthy, and Ethical Member of an Unhappy, Unhealthy, and Unethical Profession and my article From Those to Whom Much has Been Given, Much is Expected:  Vocation, Catholic Social Teaching, and the Culture of a Catholic Law School, along with a variety of other materials related to the role of the lawyer, the pressures of the legal profession and the challenges of legal education.  While one of the primary motives for this course is to engage students in an explicit conversation about integrating their moral compass into their professional identity  (the third apprenticeship reflected in the recent Carnegie Report – Educating Lawyers), part of our purpose also is to explicitly engage students in a conversation about whether they want to define their success in law school and in the profession by the types of extrinsic rewards that are identified with "winning the competition" -– grades, big firm jobs, large salaries -– or whether they want to define their success in law school and in the profession based on intrinsic factors -- their sense of mastery of material and the development of understanding about those job opportunities within the legal profession that reflect their vocation -– using their gifts and expertise to serve society.    (While we didn’t assign any excerpts from Larry Krieger’s and Ken Sheldon’s research on law student well-being, we do reference the literature in the positive psychology field highlighting that those motivated by intrinsic factors have a much greater tendency for well-being and fulfillment than those motivated by extrinsic factors.)

If students can shift their paradigm from a perception that all are competing against each other for some extrinsic goal –- great grades that will lead to high-paying jobs –- to a paradigm motivated by intrinsic factors -- that each is trying to live out his or her vocation as law student and spouse and parent and friend and volunteer while beginning to discern his or her vocation as a lawyer –- it becomes much easier to promote collaboration rather than competition. I cannot be in competition with someone else to find and live out my vocation. I can also find joy in supporting others (who may perform better than me on a law school exam) because I am not competing with them as they try to find and live out their vocation.

Nicely done, Jerry. I assume it is not mere coincidence that St. Thomas' law school website contains the subtitle, "Faith, Reason, Community."

The elephant in this room is the law school curve, which has always been justified in part as an incentive mechanism for students and in part as a sorting mechanism used by law schools to make their graduates more employable (by identifying the "best" of those graduates for judges and big firms). Jerry's post accurately identifies the mixed messages we send to students, and I wonder: can "communities of learning" flourish in "classrooms of competition"? Or must one triumph over the other?

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Teaching has become all the rage in the legal blogosphere over the past week, and Eugene Volokh adds an important contribution on the importance of class participation. This is a pitch I have been making to my students for years, and I made it again this morning in my first Business Associations class of the new semester:

I want to argue that students — though they of course pay lots of money to us — are not just customers of legal education, but are also in a sense a sort of employee: Law school classes rely on students' participating in the class, as a means of helping educate the other students. Learning, the theory goes, is a cooperative endeavor, in which students benefit from hearing each other's comments.

Eugene is engaged in a debate about whether banning laptops is libertarian or paternalistic, and I am not at all interested in that, but I am interested in the notion of students as participants in the learning process. For many years, I have used the "present and prepared" system (which I describe in my syllabus) precisely to reward students who contribute to the learning environment in the classroom. My own experience suggests that this is a more useful and less controversial means of inducing quality classroom discussions than banning laptops.

The most interesting aspect of Eugene's post, however, is his description of the modern Socratic classroom:

Most law school classes are between seminars and lectures: The professor talks more than he does in a seminar, and class discussion is less important than in a seminar, but class discussion still takes up a large part of the time, and the professor's conversations with the students — and sometimes students' conservations with each other — are an important pedagogical tool. Some question whether it's an effective tool; perhaps we'd be better off lecturing more and drawing the students in less. But most of our classes do heavily rely (rightly or wrongly) on this tool.

This means that whether students are paying attention in class affects not just themselves, but their classmates. Students who tune out, either because they're distracted by non-class materials, or because they are so focused on taking verbatim notes that they aren't really mentally engaging the information, aren't doing the job they're supposed to do. (Again, I recognize that they're not being directly paid for the job, but rather have to pay us; but part of the educational transaction is that they get an education and a credential in exchange for money and class participation.) When fewer students participate in class, other students get less out of the class discussion. When a student is called on and doesn't give a good answer, other students get less out of the class discussion (especially since time is wasted, and the conversation is interrupted).

Notice the classroom dynamic: the professor is speaking with some students (usually one at a time, though some professors manage to involve several students simultaneously) while other students listen. Or not. The non-participants may "tune out" because they are distracted or bored or busily acting as scribes.

In my view, student passivity is the core challenge in the modern law school classroom. Eugene observes that most classes are larger than seminars. As a result, a single teacher cannot engage each student in the classroom personally, so we resort to theater to hold their attention. We speak in excited tones to show our passion for our subject and we bring props (like PowerPoint slides) and tell stories or jokes. Or we become very rigorous in our questioning of the students so that, like Kingsfield, we scare the bejabbers out of them. (Or we hold auctions! I don't intend to be critical of J.W.'s exercise, which I did in my Securities Regulation class last semester. It's a wonderfully engaging exercise, especially for the first day.) At the end of the semester, if we have been entertaining or impressive enough, the students reward us with high scores on our teacher evaluations. Ugh!

If you are unhappy with that state of affairs, I would suggest that you give teams a try. Even if you don't like the idea of assigning team projects for grades (a topic that I will address in a separate post), using teams in class is a no-brainer.

I first experimented with teams several years ago, but my efforts were tentative. I asked the students to work as teams only a couple of times during the semester. Each time I requested that they form ad hoc teams for the day. These were serious design problems. My students had become accustomed to the modern Socratic classroom, and the team assignments disrupted their routines. As a result, the students inevitably wasted time getting organized and spent many awkward minutes moving from the passivity to which they had been accustomed to a group interaction. They viewed the teams as a "gimmick," and often never achieved any sort of meaningful discussion.

When my teaching advisors from CTL first suggested last fall that I move in the direction of using teams, therefore, I was very skeptical. But their pitch was simple for someone who was seeking a more engaging classroom: start from the first day, making teamwork part of the classroom routine, so that your students expect to be engaged with each other every day.

I tried this approach in both of my classes last semester, more systematically in Securities Regulation. One day, as I walked around the classroom listening to my students discuss a hypothetical problem from the casebook, I had a revelatory moment. Instead of having me and one student discuss this problem as a not-very-gripping theater performance, I was watching all 50 students in the class engaging with the problem. All of them were speaking the words of securities regulation. All of them were struggling to one degree or another with the basic themes of the course. They were looking at each other, not at their computers. And they appeared to be thinking!

And that's how I became sold on teams in the classroom.

P.S. For a provocative and insightful follow-up to Eugene's post, read Ann Althouse's thought experiment, concluding that students "should feel an ethical responsibility to the classroom community they asked to join and to the rejected applicants they are displacing."

I probably should note that I expect classroom participation beyond the team discussions (see the present and prepared system referenced above), but those portions of my class are now much smaller than they once were.

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Thanks Gordon for the introduction, I am honored by the invitation to visit at the Conglomerate. Today was my first day teaching, and since the Conglomerate’s sage advice about the teaching market got me into this mess in the first place (See Gordon here and Christine here.) I thought that I would talk about an exercise I conducted on my first day teaching Securities Regulation.

We ran an auction for a “gift certificate for dinner for two, plus drinks, at a local restaurant,” the proceeds of which would be donated to the American Cancer Society. I informed them, by way of a disclosure statement via email, that I informally asked some friends on the faculty what they would bid based on the same limited information that the students received. I told the students that the result of that informal survey was an average bid of $93.50, and I mentioned that if the students obtained the item for lower than its value they might even sell it for a profit. My disclosure email was riddled with the sort of dry and equivocal statements one might find in a registration statement, and my first day sales pitch was a little more puffed up.

The result: The winning bid was $85 for a $10 gift certificate to McDonald’s. I think it got their attention, which was a good intro to my overview of what we’ll cover in the class. (Also, at the end of class I let the winner keep her money and the gift certificate, and I promised to make the donation anyway.) My hope is to use this as a teaching tool for all of the chapters that follow, from “what is an investment” to 10b-5 liability and beyond.

I get excited about Sec Reg, but most people find it to be a bit of a snoozer. I remember having law professors that went out of their way to make classes interesting; including using items in the news, showing 3 minute movie clips, corny knock-knock jokes, and one who even kept wind up stuffed animals around her podium. As long as it doesn’t suck up too much class time, I think it’s a useful pedagogical device. It lightens an otherwise dry subject, breaks up monotony, and piques their interest. I would be interested to hear from readers what sorts of gimmicks they use or have seen put to effective use as teaching aids in their legal courses.

I am looking forward to our time together.

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Day 6 - hello again, but probably for the last time.  My expiration date is fast approaching, but I've thoroughly enjoyed being a guest blogger.  Thanks, Gordon!

The comments to my Friday post on teaching transactional law highlighted for me the fraught nature of any discussion of pedagogical reform.  On the one hand, any mention of "skills" seems to summon up the specter that law school is to regress into a mere trade school.  On the other hand, true believers want much more.  They want a significant overhaul of the curriculum to incorporate more transactional thinking.  For me, however, there is a middle ground that promises to bear real fruit without disrupting what I believe to be the high quality results that law schools currently produce.

As I mentioned in Friday's post, the first step is to incorporate much more in the way of transactional thinking into our upper-level business law courses.  Happily, we can do this on our own and without the permission of our associate deans or faculties.  We can simply change what and how we teach.  (More problematically, however, it probably also means placing a greater emphasis on hiring faculty who have enough experience to have developed some deal sense of their own.)

Today, then, I want to comment on what I see to be the main challenges facing attempts to incorporate more transactional skills into the curriculum.  On the positive side, I've heard a lot of terrific ideas and I know that many very serious people  are striving to improve what we do.  On the negative side, however, I think that most of the ideas that I've encountered so far fit within one of the following categories:

• Too little - many of the proposals (including mine?) are likely to have impact only at the margins.  While important - margins matter and we shouldn't ignore the pursuit of excellence - they fall short of real reform.
• Too much - I doubt that there are many law schools that would entertain the kind of full-scale reform that has been envisioned by some.  Certainly, I share interest in the goals, but most law school faculties are too entrenched in what they do to engage in a complete overhaul in favor of transactional theory and skills.
• Impossible to replicate - several schools have programs that are absolutely fantastic, but that cannot be replicated by law schools that aren't in New York or Philadelphia or that have faculties (and alumni bases) that aren't sufficiently well connected with prominent dealmakers.

Thus, we are left with the usual (and somewhat obvious solutions) - a small business clinic, externships, full-scale simulations, and perhaps some sort of partnering with the business school.  All of these are excellent and worth doing.  However, they tend to be expensive (both in terms of faculty time and financial resources), reach relatively few students, and strike an uncomfortable balance between the teaching of doctrine and theory, on the one hand, and skills, on the other.  Thus, at the University of Oregon, we've begun experimenting with another model that I think is worth discussing.

We now offer two "transactional practice labs" which, just like your high school chemistry or biology lab, is appended to a traditional doctrinal course.  Thus, my course on Mergers & Acquisitions, as well as my colleague's course on real estate finance, each have a lab.  The labs are one-credit, pass/fail, and taught by adjuncts.  The very simple notion is that I (and my colleague) teach doctrine in the regular course, while students - who are simultaneously enrolled in the lab - learn transactional skills from practicing attorneys by engaging in a small-scale, semester-long deal while in the lab.  The idea isn't to graduate students with partner-level dealmaking skills, something that is beyond the capability of law school, but to give students a sense of what is involved in dealmaking so that they can hone their skills more effectively and more quickly once in practice.

The advantages of this model are several.  First, we have the labs sponsored by law firms, not by lawyers.  As a result, they are done pro bono (meaning that they cost us nothing) and involve a number of attorneys.  Second, they are completely scalable.  Almost any class could have a lab and they require very little supervision from the faculty member because the adjuncts are doing for our students almost exactly what they do in their professional lives.  Third, I believe they successfully navigate the tension between teaching doctrine and teaching skills - the academic faculty teach theory and doctrine while practicing attorneys teach skills.  Finally, they offer a host of non-academic but important benefits - they involve alumni more significantly in the school; they provide students with training in professionalism (several of the classes meet in the offices of the sponsoring law firm, several in the law school, the latter generally on football weekends); and they have a positive impact on job placement.  In fact, for a school like the University of Oregon that is outside of any major metropolitan area, these last few benefits are especially important.

Interest in the labs (and, as a result, the underlying doctrinal courses) is growing fast.  In the first year, we had nine M&A lab students.  In the second, twelve.  And this year we are attempting to accommodate over twenty by recruiting a second law firm to sponsor a second section.  Meanwhile, the sponsoring firm was so impressed by the results that they have floated the idea that they would involve some of their new hires as students.  Compare this to the fact that we recently increased the size of our small business clinic from eight to twelve students annually.  Certainly, this is terrific and I support it whole-heartedly, but the increase was difficult and expensive and unlikely to be repeated.

I spoke about the labs in more detail at Emory's transactional skills conference this past spring, and will again at the AALS mid-year meeting this coming summer.  I believe the transcripts of the Emory conference will be published in the fall in the University of Tennessee's journal Transactions, and I am hoping to complete a paper on the subject this winter.  Thus, if you are at all interested in the course format, I hope to have a lot more information available in the coming months.

Oh yes, and one final note - yes, it has been only two weeks since the new (and mostly awful) Star Wars movie was released; and yes, my six-year-old daughter has already dragged me to see it for a second time!  Thanks for reading.  Cheers all.

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