August 25, 2008
Teaching Transactional Law 2
Posted by Rob Illig

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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