August 17, 2006
Commercial Law: A Modest Proposal
Posted by Christine Hurt

Larry Garvin has posted a new essay on SSRN titled The Strange Death of Academic Commercial LawIn this light-hearted and humorous essay, Prof. Garvin chronicles the decline in number of commercial law professors, courses, and articles in the past 40 years.  Prof. Garvin has some suggestions on how to make commercial law hot and sexy again, and I have some thoughts as well.

When I was preparing to go on the market, people asked me whether I was "corporate" or "commercial."  This question always stumped me.  In practice at Baker Botts, my section was called "Finance" or "Corporate Finance."  Our sister section was called "Securities" or "Corporate Securities."  The line was fairly fluid, but basically we all did deals, and they did deals where financing was from the capital markets, and we did deals where financing was from commercial banks or institutional investors who bought notes or bonds.  But we all did general corporate stuff.  The dividing line seemed to be equity/debt, not commerical/corporate.  At Skadden, the split was the same (with many more subdivisions -- my section was "Project Finance -- Energy").

So, the split in law schools between corporate and commercial has always seemed not quite apt for me.  This may be the best way to construct a deal lawyer -- teach them discrete topics and let them put it all together.  But interdisciplinary practitioners joining the ranks may not want to be that discrete.  The commercial law curriculum seems to progress to the Bankruptcy course, also (if one can progress to Bankruptcy).  Bankruptcy is a different field in practice, made up of transactional people (who like to figure out the DIP financing) and litigators (who like to go to court).  I wasn't in the Bankruptcy section, so I felt more like a corporate person than a commercial person.  But now I yearn to talk to someone about the beauty of a well-secured loan.

My suggestion is to get rid of the "commercial law" moniker for one with a jazzier connotation:  Finance.  Who wouldn't want to be a Finance Law professor?  Recognize that Finance Law professors may teach corporate stuff and commercial stuff.  Devise courses that are interdisciplinary.  Go wild.  Just a thought.

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