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Teaching Remotely in the COVID-19 Era: In Defense of the Lecture (but with tweaks)

UCLAW is holding the first of a series of Zoom colloquia on teaching remotely. As the law school’s most vocal defender of the lecture and critic of the Socratic method, I’ve been asked to give a 2- to 3-minute talk about lecturing during Covid-19. As regular readers know, brevity is not my strong suit. Thinking about that problem, I recalled the Congressional practice of including extended remarks in the Congressional record. Hence, these thoughts.[1]

Why Lecture?

When I joined the Illinois faculty 20 years ago, I began a long struggle with the problem of pedagogy. Like a lot of newly minted law professors of a certain age, I thought Professor Kingsfield (look him up) was the standard to which I had to aspire. But Kingsfield never had to teach Securities Regulation at 3 p.m. on a Friday afternoon to a class consisting of third-year students in their last semester of law school.

Suffice it to say that it was not a success. Perhaps I lacked a certain gravitas or was just too cherubic for my own good. Being a fairly laid-back guy informed with laissez-faire sensibilities probably didn’t help.

I began reflecting back on my own law school experience. As I pondered the various teachers I had in law school, it occurred to me that there were only two whose style had been truly Kingsfield-like. One was my contracts professor, Bob Scott, whose command of the classroom was amazing. He could hide the ball and then, like a great magician, pull it out of your ear. Interestingly, however, in the courses I took from Professor Scott in my second and third years of law school he did a lot more talking than he had in first year contracts.

The other Kingsfield-like teacher I had at Virginia was my torts professor, who should probably remain nameless. His idea of snappy Socratic dialogue was to respond to every student statement with “so what?” or “who cares?” The only thing I learned in that class was that the Coase theorem answered any question, which admittedly has served me well.

In contrast, most of my professors used what I’ve come to call the soft Socratic style. Instead of cold calling students, they used panels of students who were on call for a few days per semester. Instead of grilling a specific student at length, each student would be tossed a few questions and then the professor moved on to the next. Students were never told that they had given a wrong answer, let alone told to go and call their mothers as they would never become a lawyer. At most, the professor gently guided the student towards the proper conclusion.

In my early years at Illinois, I frequently sat in on classes taught by colleagues who were said to be great Socratic teachers. Oddly, however, in most of those classes, Socrates did almost all of the talking. Just as at Virginia, the dominant pedagogic style was soft Socratic. In preparing for this lecture, for example, I went back and dug out an evaluation I wrote of one of my Illinois colleagues:

His style is very soft Socratic. He tosses an occasional question out there and waits for answers. If nobody responds, he answers the question himself.

He started today’s session by picking up the thread of a discussion from yesterday. After reviewing the material by lecture, he started the new material. As before, he relied on volunteers. He got some participation, but it wasn’t particularly interactive. Students made a comment, he made a comment, and went on.

In fairness, back in those days you could have said much the same thing about my classroom style.

You see, I knew I was not then and never would be Kingsfield-like, but I was still trapped in the mindset that no self-respecting law professor could depart from the Socratic method. So, I too became a soft Socratic teacher. But doubts kept intruding. Were the students who were not “on call” prepared? What did they get out of listening to a colleague answer a question but not having to struggle with it, since I typically moved on to another student or lectured if the student struggled?

It is [said] that [the Socratic method] teaches students how to “think like lawyers.” This claim would, of course, require some evidence. For example, in most countries, including other common law countries, law is not taught via anything like the Socratic method. Yet presumptively their lawyers think like, well, lawyers. So somehow they learned. ‘Thinking like a lawyer’ is a matter of learning how to reason and argue, in some ways that lawyers share with everyone else, and in other ways that are peculiar to lawyers (e.g., arguments from authority are not fallacious in the law). But why think that one learns how to do this by being grilled Socratically as opposed to reading examples of lawyerly thinking and hearing lectures explaining lawyerly arguments?[2]

I eventually came to two conclusions. First, if students couldn’t think like lawyers by the time they got to me in their second or third year of law school, there was very little I could do to help them except suggest another line of work.

Second, the Socratic method doesn’t really teach you to “think like a lawyer.” At best, it teaches you to think like a litigator.

Consider a typical law student who accepts a [transactional] job at a large firm. She has spent perhaps ninety-five percent of her time in law school reading and discussing cases and law review articles. Once in practice, she will go days or weeks at a time without picking up a case or a law review article. Instead, her days will be filled with drafting, reviewing, and marking up transactional documents, negotiating language with opposing counsel, participating in conference calls, and composing memos, emails, and letters to colleagues and clients.[3]

“Thinking like a lawyer,” as Kingsfield and his ilk would have our graduate do is not very conducive to success in that environment.

In his book, The Terrible Truth About Lawyers, Mark McCormack, founder of the International Management Group, a major sports and entertainment agency, wrote that “it’s the lawyers who: (1) gum up the works; (2) get people mad at each other; (3) make business procedures more expensive than they need to be; and now and then deep-six what had seemed like a perfectly workable arrangement.” McCormack further observed that, “when lawyers try to horn in on the business aspects of a deal, the practical result is usually confusion and wasted time.”  He concluded: “the best way to deal with lawyers is not to deal with them at all.”

All of which is why I emphasize not only doctrine but also economics and business. Transactional lawyers must understand the business, financial, and economic aspects of deals so as to draft workable contracts and disclosure documents, conduct due diligence, or counsel clients on issues that require business savvy as well as knowing the law.

I want my students to understand that successful transactional lawyers build their practice by adding value to their clients’ transactions. Instead of thinking like Kingsfield, I want them to learn where the value in a given transaction comes from and how they might add even more value to the deal.

I had always lectured some. I defy even Professor Scott to teach the Capital Asset Pricing Model Socratically. As my teaching became more oriented towards transactions, and business and economics became more important, and identifying sources of value in the underlying deals out of which the cases arose became the key task, grilling law students seemed less and less effective.

Gradually, bit by bit, I freed myself from the trappings of the soft Socratic method. Away with panels! Away with volunteers! Away with questions! Up with PowerPoint!

Once I went through the 12 step program and became what Brian Leiter calls a “recovering Socratic teacher,” I noticed that I had some interesting company. Leiter, for example, has written that: “There is no evidence—as in ‘none’—that the Socratic Method is an effective teaching tool. And there is much evidence that it’s a recipe for total confusion.”[4]

In her 1997 book, Becoming Gentlemen, Lani Guinier blasted the Socratic Method for forcing female students to adopt a style that many found alien to them. Former Secretary of Labor Robert Reich, wrote in a 1998 essay that the method had “morphed beyond recognition” into an exercise in intellectual arrogance in which the professor always had the right answer.

Even so, at first, lecturing was my dirty little secret. I felt like a deacon sneaking out of town to get a snootful. What if my colleagues found out?

Gradually, however, word leaked out … and nothing bad happened. My classes were full to the bursting. Deans patted me on the back for getting good evaluations. Promotions and raises kept coming.

And then came the Rutter Award.

Tweaking

In sum, the advantages of the lecture are that it gets students through complex materials efficiently and models how non-litigator lawyers work, among other things. Those same benefits obtain online. The new problem is that one has to pay greater attention to the chunks in which one lectures online because of attention-span/zoom fatigue potential problems.

There is data suggesting that the typical college student’s attention span in class is about ten minutes. I recall seeing data—but cannot now find it—suggesting that the typical attention span of university students in remote learning is about 7 minutes. Note that part of the popularity of TED talks may be the 18 minute limit, which ensures they do not tax the participants’ attention span. This suggests a need to find ways of breaking remote lectures into segments of no more than 10 minutes, with some alternative activity in the breaks.

Pop ungraded quizzes might be a good way of checking student comprehension and also a segment break activity. Having some sort of feedback is especially important because one cannot see the students’ faces (due to privacy choices most make) and thus cannot assess their attention level. Zoon’s poll function is an obvious option. I’m also looking for others.

Another possibility I am considering is assigning a few students ahead of each class to each give a short presentation on a topic relevant to the lecture that day.

Congratulations to Columbia Law, the Millstein Center, and Leo Strine

I once wrote that:

When any Chief Justice of the Delaware Supreme Court speaks on a corporate law topic, lawyers and academics who toil in that doctrinal vineyard listen. When that Chief Justice is Leo Strine, they listen especially closely. The “well-respected” Chief Justice after all is the “[w]underkind of U.S. corporate law” and has been “recognized among academics, practitioners, and other judges” as an “intellectual leader” of the Delaware judiciary.

Stephen M. Bainbridge, Corporate Social Responsibility in the Night-Watchman State, 115 Colum. L. Rev. Sidebar 39, 39 (2015).

I remain a greater admirer of now retired CJ Strine, who--perhaps excepting only the late Chancellor William Allen--has made more and better law than any jurist in my lifetime (although even mighty Homer nods occasionally).

I am therefore quite envious of Columbia Law School and its Millstein corporate governance program, which today announced that "Former Delaware Supreme Court Chief Justice Leo E. Strine, Jr. will join the center as the Ira M. Millstein Distinguished Senior Fellow."

While at Columbia, Strine will collaborate with the Millstein Center in a variety of ways, including conducting research in the areas of business law and corporate governance, speaking at academic events, and engaging with business leaders. In conjunction with joining Columbia Law School, Strine will hold a joint affiliation with the University of Pennsylvania Carey Law School, where he has been named the Michael L. Wachter Distinguished Fellow in Law and Policy. ...

Reflecting on his joining Columbia Law School, Strine said, “For years, I’ve been honored to work with the outstanding business law faculty at Columbia on a variety of projects and to participate in their classes and programs sponsored by the Millstein Center. I’m excited to work even more closely with them, including because the law school, in general, and the Millstein Center, in particular, recognize how important fair economic and corporate governance systems are for the proper functioning of our society.”

To be on the same faculty as CJ Strine would be a treat for any corporate law scholar. I must admit to feeling more than a little jealous of the folks at Columbia. But maybe we can entice the CJ to visit Los Angeles  occasionally.

Should we worry about California's ban on singing in Church? Maybe a little.

FoxNews recently reported that:

Faith leaders are speaking out after California Gov. Gavin Newsom banned singing and chanting in houses of worship last week due to a surge in coronavirus cases following weeks of protests.

“Places of worship must, therefore, discontinue singing and chanting activities and limit indoor attendance to 25 percent of building capacity or a maximum of 100 attendees, whichever is lower,” the new guidelines read as state health officials recommend churches have members sing online from their homes.

Over on FB, I offered a snarky comment intended to show derision:

I don't think even the Soviets tried to ban singing at the few churches they allowed to operate.

To which a friend who is no fan of FoxNews responded:

Your loyal "good angel" here ... wondering if you really disagree, or if this is just a snarky post? (And you know what I'm going to say if it is just a snarky post.). The reality of the world right now is that singing, in closed spaces, is probably really risky to the people present, and by extension to lots of other people. And we know that, while many institutions would be thoughtful about masks and spacing, some would not; and so a clear rule -- no singing at in-person events -- might be the only way to get compliance and enforcement. So, given that, isn't this the right call, despite Fox News' always-alarmist coverage and your (witty?) framing? And, if it is the right call, why post about it this way, which will cause people to come to the wrong conclusion about your views?

He is learning (although clearly not accepting) that I will always go for snark and sarcasm. It's a failing, I admit. So let me be serious:

The Catechism of the Catholic Church (1324) tells us that celebrating the Mass is the “source and summit” of our Christian life. This is so because, as John O'Brien wrote, "The Mass is the renewal and perpetuation of the sacrifice of the cross in the sense that it offers [Jesus] anew to God . . . and thus commemorates the sacrifice of the cross, reenacts it symbolically and mystically, and applies the fruits of Christ’s death upon the cross to individual human souls." Government regulation that impacts how the Mass is conducted is thus regulation not of some peripheral matter but of the very core of our faith.

Singing isn't the only element of Catholic worship that poses a transmission risk:

• The traditional way of receiving the Eucharist was for the priest to place the wafer on the believer's tongue, which the believer then swallows. (Hand to mouth transmission risk.)
• We have the option of the priest placing the wafer in the believer's hand, which the believer then eats. (Hand to hand to mouth transmission.)
• We take Communion in the form of the wine from a communal cup.
• We dip our fingers into common basins of holy water and dab it on our forehand and torso while making the sign of the cross.
• There are numerous points in the Mass in which the congregation all recites out loud. E.g., the Kyrie, the Gloria, and the Creed.
• During the Sign of Peace, we shake hands and bless one another.

Is singing is the riskiest of those practices? So shall we let the government regulate all of these practices? I'm making a slippery slope argument, of course, but some slopes are slippery. The government started out by closing churches. Then they put various limits on how churches can reopen.

For the government now effectively editing of the liturgy and the way it is performed strikes me as raising substantial free exercise issues, especially given the slippery slope on which they seem to be launched.

Concern about these issues is not limited to the MAGA crowd. Over on Twitter, Richmond law professor Kurt Lash wrote that "California has just banned singing and chanting in places of religious worship. In addition to being hilariously unconstitutional, it is another reminder to be thankful for the current Supreme Court’s movement in the direction of securing religious freedom."

I would add that the Catholic Church has been really good about voluntarily tweaking its rituals to accord with best scientific practices. Surely the Church, in consultation with medical experts, is better positioned than some bureaucrat to adjust the liturgy.

So in this case, I used snark as a shorthand way of calling attention to the problem.

Can a corporation be insane?

Mihailis Diamantis has posted an article to SSRN entitled The Corporate Insanity Defense and also posted a summary to the Oxford corporate governance law blog:

... there are some criminal corporations whose deep or unpredictable disfunction presents a special challenge. These corporations are much less likely to respond constructively to criminal sanctions. In a forthcoming article—The Corporate Insanity Defense—I argue that criminal law needs a different approach for these corporations, one that emphasizes compulsory expert treatment rather than standard forms of punishment. 

It's an interesting article, but I start from a premise founded on the aphorism famously attributed to Edmund, First Baron Thurlow: "Corporations have neither bodies to be punished, nor souls to be condemned." Applying the criminal law to corporate entities fits poorly with most of the basic purposes of criminal law.

• Deterrence: Corporations can act only through persons. It is those corporate agents who must be deterred. Entity level punishment will be less effective as a deterrent than direct punishment of the responsible corporate actors.
• Retribution: You can't send a corporation to jail. But you can send the responsible corporate actors to jail.
• Rehabilitation. Lacking a body and soul, the corporation has nothing that can be rehabilitated. But bad human actors can be rehabilitated.
• Restitution: Obviously, the corporation can provide restitution to those it harmed. But that would require directing corporate fines and penalties to the victims of wrongdoing rather than the government.

We should seriously rethink corporate criminal liability, which effectively amounts to vicarious liability, and replace it with direct liability for the individuals who are responsible for the wrongdoing.

Why does Elon Musk keep poking the bear?

Bloomberg reports that:

Elon Musk provoked the U.S. Securities and Exchange Commission in the course of taking a victory lap on Twitter over Tesla Inc.’s surging share price.

The chief executive officer first taunted short sellers in a string of tweets, writing that the electric-car maker would “make fabulous short shorts in radiant red satin with gold trim.” That’s an apparent reference to jokes he’s repeatedly made about sending “short shorts” to investors who bet against Tesla’s shares, such as hedge fund manager David Einhorn.

Musk then tweeted a cryptic but profane play on the agency’s initials, prompting Ross Gerber, a fund manager who regularly engages with him on Twitter, to write back: “Dangerous.”

Herewith the tweet:

SEC, three letter acronym, middle word is Elon’s

— Elon Musk (@elonmusk) July 2, 2020

One begins to think that Musk is not playing with a full deck. Yes, he's a billionaire who has built (depending on how you count) three or four successful (-ish) businesses. 

But the SEC notoriously lacks a sense of humor. As Mark Cuban discovered, being a billionaire does not insulate you from the SEC starting a weak enforcement case and just keep coming and coming. They can be beaten, as Cuban did, but at high cost.

Being Musk's security lawyer must require massive doses of Pepcid.

Duck breasts sous vide with green peppercorn sauce and smashed new potatoes with duck fat and a Twomey 2014

Along with an obligatory pre-made salad from Yummy.com, we had duck and potatoes.

Duck Breasts

• 2 duck breasts
• salt and pepper

Fill a large stock pot or other food safe container with warm water. Insert your Joule sous vide into the container and set to 135°.

Score the skin of the breasts in a diamond pattern. Season with salt and pepper. Seal each breast in its own 6"x10" 3mil bag using your Weston vacuum sealer. Cook for 90 minutes. Remove and pat dry.

Heat your All-Clad 10-inch nonstick skillet on the medium high to high setting (I used 9 out of 10). Add duck breasts skin side down and turn heat down to 7. Cook several minutes so that the skin gets brown but NOT black. Flip and cook 1 more minute.

Smashed new potatoes

• 1 pound baby red potatoes, quartered
• 2 garlic cloves chopped roughly
• big pinch salt
• 1 tablespoon butter
• ¼ dairy*
• salt and pepper

Put the potatoes and garlic in a large pot and cover with water. Add salt. Bring to a boil, reduce heat slightly and cook at a fast simmer for about 18 minutes. Drain and return to pan. Add butter and dairy. Using a potato masher, smash and mix the potatoes. You're doing this roughly simultaneously with searing the duck breasts. Add a few spoonfuls of rendered duck fat to the potatoes (to taste). Season with salt and pepper.

*: For daily you could use heavy cream, sour cream, or crème fraîche. As it happened, however, I had some crema on hand and used that.

Green Peppercorn Sauce

• 1 tablespoon unsalted butter
• 1 small shallot minced finely
• 1 garlic clove minced finely
• 1 ½ tablespoons brandy
• 1 cup chicken stock
• 1 ½ tablespoons dried green peppercorns
• 1 teaspoon dried chives
• 1 teaspoon dried Italian parsley flakes
• 2 tablespoons dairy (see above)
• 1 tablespoon Dijon mustard
• salt and pepper

Melt butter in a small saucepan over medium heat. (I used my All-Clad 1 quart.) Add shallot. Cook 1 minute. Add garlic. Cook 30 seconds. Add brandy and crank heat to high. Bring to boil and allow to reduce to a glaze. Add chicken stock, return to the boil, and reduce heat to medium-high. Add peppercorns, chives, and parsley. Cook over a fast simmer 5 minutes.

Remove from heat. Add dairy and mustard. Whisk to combine. Return to burner set over lowest setting and keep warm.

Twomey (Napa Valley) 2014

A Merlot from the same folks who make Silver Oak. Blackberry and blackcurrant. Medium body. A bit of a lightweight for Napa. Grade: B

Halibut with Tomato Bearnaise Sauce and a Stuffed Tomato with Turtle Rock Willow White 2017

This dinner has a shortcut built into it, which will probably cause me to loose whatever foodie cred I have. But here goes anyway.

Butter Basted Pan Roasted Halibut

• 2 4-ounce halibut filets
• 1 garlic clove, smashed
• 1 teaspoon canola oil
• 2 tablespoons unsalted butter
• salt and pepper

Season halibut with salt and pepper. In your trusty All-Clad 10-inch nonstick skillet heat the oil over medium-high heat. Add filets to the pan and turn heat down to medium. Cook for 2-3 minutes or until bottom side is light brown. Flip and add the butter and garlic. When the butter melts, tilt the pan towards you and use a large plastic or silicon spoon to scoop up the butter and pour over the fish. Repeat for several minutes. Check the fish's temperature. When it hits 140°, it's done.

Tomato Bearnaise Sauce

Here's the short cut. I made a packet of Knorr Bearnaise Sauce following the package directions. As the sauce came together I added a tablespoon of tomato paste and 1 ½ tablespoons of finely diced sun-dried tomatoes (that were packed in oil).

Stuffed Tomato

Preheat the oven to 375°. This is an ideal opportunity, by the way, to use your Breville Smart Oven. It's going to use a lot less energy than your big oven.

• 2 large beefsteak tomatoes
• salt and pepper
• sugar
• 2 tablespoons Panko bread crumbs
• 1 ½ ounce crumbled soft cotija cheese (feta will work too)
• 1 tablespoon unsalted butter
• 1 small shallot diced finely
• 1 garlic clove minced
• pinch red pepper flakes
• 1 tablespoon tomato paste
• water
• ½ cup couscous
• 1 tablespoon dried currants
• 1 tablespoon pinenuts

Cut off the top of the tomatoes. Using a grapefruit spoon, scoop out all the pulp from the tomatoes. Put the pulp and any juices into a strainer set over a bowl. Season the interior of the tomatoes with several pinches of salt and sugar. Put the tomatoes onto a wire rack over a cookie sheet and let drain for half an hour or so.

Combine the panic with one-third of the cheese. Mix thoroughly.

Heat your second All-Clad 10-inch nonstick skillet on the medium setting. Melt the butter. Add shallots and cook for 1 minute. Add garlic and pepper flakes. Cook another 30 seconds. Add tomato paste and cook another 30 seconds. Add enough water to any liquid that came from the pulp to make a total of ¾ cup of liquid. Bring to a boil. Add couscous, currants, and pinenuts. Season with salt and pepper. Mix well. Remove from heat. Cover. Let sit for 5 minutes. Add remaining cheese and mix well. Stuff the tomatoes. Put into a small roasting pan. Cook for about 22 minutes.

Turtle Rock Willow White (Paso Robles) 2017

A blend of 62% Grenache Blanc, 20% Roussanne, 11% Viognier, 7% Picpoul. It's a nice change of pace from Chardonnay, Sauvignon Blanc, and Pinot Grigio. Lovely bouquet of pear, honey, apple, and buttered toast. The palate suggests it has seen some new oak, but not a lot. Balanced and refreshing, but has some depth on the finish. Grade: B++

California considering legislation to adopt underrepresented community board of director quotas--Internal Affairs Doctrine Issues

Keith Paul Bishop reports that:

In 2018, the California legislature enacted SB 826 (Jackson) which imposed gender quotas on corporate boards of directors of "publicly held corporations".  See California Enacts Novel Female Board Quota Legislation.  The constitutionality of that legislation is now before the courts.  See Secretary Of State Must Answer Legal Challenge To Female Director Quota Law.

On Monday, Assembly Member Chris Holden gutted and amended AB 979 to impose a similar quota requirement on domestic and foreign publicly held corporations having their principal executive offices in California.  Similar to SB 826, corporations will be required to have a minimum of one director from an underrepresented community no later than the close of the 2021 calendar year.  By the close of the 2022 calendar year, the minimum numbers would be as follows:

• Three, if the corporation's number of directors is nine or more;
• Two, if the corporation's number of directors is more than four but fewer than nine; and
• One, if the corporation's number of directors is four or fewer. 

The bill would also impose similar reporting requirements on the Secretary of State and subject violators to significant fines.

The bill defines a "director from an underrepresented community" to mean an individual who is African-American, Hispanic, or Native American. 

California law (SB 826) currently imposed gender quotas on boards, although that provision is currently being challenged in court.

As a corporate lawyer, what jumps out at me is the provision applying the new requirement to foreign publicly held corporations having their principal executive offices in California. As with SB 826, this raises a serious constitutional issue under the dormant commerce clause. I discussed the issues raised by SB 826 in a WLF Legal Pulse brief:

Virtually all U.S. corporations are formed (“incorporated”) under the laws of a single state by filing articles of incorporation with the appropriate state official.  The state in which the articles of incorporation are filed is known as the “state of incorporation.” Selecting a state of incorporation has important consequences, because of the so-called “internal affairs doctrine”—a conflicts of law rule holding that corporate governance matters are controlled by the law of the state of incorporation. Virtually all U.S. jurisdictions follow the internal affairs doctrine, even if the corporation in question has virtually no ties to the state of incorporation other than the mere fact of incorporation.

A few states make a more general exception to the internal affairs doctrine for so-called pseudo-foreign corporations. A foreign corporation is one incorporated either by a state or nation other than the state in question. A pseudo-foreign corporation has most of its ties to the state in question rather than to the state of incorporation. Many Delaware corporations are pseudo-foreign corporations. They are incorporated in Delaware, but most of their operations are located in one or more other states.

In most states, there is no significant legal difference between a foreign and a pseudo-foreign corporation, and the internal affairs doctrine will be applied to invoke the law of the state of the incorporation with respect to both. California and New York are the principal exceptions to this rule. Both states purport to apply parts of their corporate laws to pseudo-foreign corporations formed in other states but having substantial contacts with California or New York.

SB 826 is an especially aggressive attempt to regulate pseudo-foreign corporations. California’s basic pseudo-foreign corporation statute—Cal. Corp. Code § 2115—applies only to corporations that have more 50 percent of their property, payroll, and sales in California and have more than half of their shareholders of record held by California residents. In addition, §2115 does not apply to public corporations. In contrast, SB 826 applies to public corporations whose sole contact with California is the location of its principal executive office. Given that § 2115 is almost certainly unconstitutional under the dormant Commerce Clause, the more aggressive SB 826 should also be unconstitutional.

In the leading CTS Corp. v. Dynamics Corp. decision, the U.S. Supreme Court recognized that it “is an accepted part of the business landscape in this country for states to create corporations, to prescribe their powers, and to define the rights that are acquired by purchasing their shares.” 481 U.S. 69, 81 (1987).Building on that fundamental principle, the Court emphasized that a state has a legitimate “interest in promoting stable relationships among parties involved in the corporations it charters, as well as in ensuring that investors in such corporations have an effective voice in corporate affairs.” Id.

Note that the Court acknowledges the legitimate interest of a specific state; i.e., the state under whose law the company was incorporated:

Large corporations that are listed on national exchanges, or even regional exchanges, will have shareholders in many States and shares that are traded frequently. The markets that facilitate this national and international participation in ownership of corporations are essential for providing capital not only for new enterprises but also for established companies that need to expand their businesses. This beneficial free market system depends at its core upon the fact that a corporation — except in the rarest situations — is organized under, and governed by, the law of a single jurisdiction, traditionally the corporate law of the State of its incorporation.

Id. at 90. To be sure, the Court here may be referring not to constitutional principle, but rather to the conflict of laws principle known as the internal affairs doctrine, “which recognizes that only one State should have the authority to regulate a corporation’s internal affairs—matters peculiar to the relationships among or between the corporation and its current officers, directors, and shareholders—because otherwise a corporation could be faced with conflicting demands” from different states. Edgar v. MITE Corp., 457 U.S. 624, 645 (1982).

But while the Supreme Court has not held that it is unconstitutional for a state other than the state of incorporation to attempt to regulate a corporation’s internal affairs,² a number of commentators have concluded that the internal affairs rule rises to the level of a constitutional doctrine.³

Admittedly, there is not much case law on this issue, and the leading case comes from a very interesting party—i.e., the Delaware Supreme Court—but that case held that attempted application of California’s § 2115 to a company incorporated in Delaware violated the U.S. Constitution’s Due Process and Commerce Clauses:

Pursuant to the Fourteenth Amendment Due Process Clause, directors and officers of corporations “have a significant right … to know what law will be applied to their actions” and “[s]tockholders … have a right to know by what standards of accountability they may hold those managing the corporation’s business and affairs.” Under the Commerce Clause, a state “has no interest in regulating the internal affairs of foreign corporations.” Therefore, this Court has held that an “application of the internal affairs doctrine is mandated by constitutional principles, except in the ‘rarest situations,’” e.g., when “the law of the state of incorporation is inconsistent with a national policy on foreign or interstate commerce.”

VantagePoint Venture Partners 1996 v. Examen, Inc., 871 A.2d 1108, 1113 (Del. 2005). Assuming Delaware to be correct on the constitutional status of the internal affairs doctrine, SB 826 is unlikely to survive judicial scrutiny.

AB 979 is subject to the same argument.

Also, as with SB 826, AB 979 defines a “publicly held corporation” as "a foreign corporation with outstanding shares listed on a major United States stock exchange." The problem with that definition, of course, is that there is no such thing as a "major United States stock exchange." It's simply not a defined term of art anywhere. 

"As I have argued elsewhere"

I am currently at work on a short essay that builds off of my director primacy model of corporate governance. Instead of rehearsing the whole argument for director primacy, which I have done elsewhere and often, I propose in the current essay simply to say "As I have argued elsewhere," and then very briefly state the thesis. A friend and fellow academic objects, saying that this device is disfavored because one should assume that the reader of your current article has not read everything you have ever done. Said reader, moreover, the friend opined, will be annoyed by being directed to another source.

This sent me to Westlaw. The phrase "As I have argued elsewhere" appears in 2,601 secondary sources including 2580 law review articles. The most frequently cited article in which it appears is by no less a scholar that Larry Tribe. His article Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv. L. Rev. 1329, 1372 (1971), has been cited 765 times. Mark Tushnet comes in second with 656 citations to his article Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles, 96 Harv. L. Rev. 781, 823 (1983). Geoffrey Stone comes in third with 648 citations to Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189, 242 (1983). 

Finding myself in such eminent (if ideologically suspect) company, I have decided to press forward.

We get another question on turning Catholic belief into public policy

My earlier post on the the Gospel of Life prompted a second friend to pose this question:

But the question is on what grounds a Roman Catholic believes his or her position on, say, contraception must be implemented in public policy. I don't eat pork or shellfish, and don't eat milk and meat together, or unkosher meat, but I can't imagine making a law forbidding someone else from doing it. Now, to some extent, that is a difference between Judaism and Catholicism: the bright side of Jewish particularism is that we don't think that everyone has to be Jewish (we aren't sadists, after all). I would never in the world demand that someone use an IUD; I can't imagine conversely that someone be denied the right to use one, either.

 

So is there any place under which a Catholic would say, "this is my belief, but I would not insist that this be implemented as public policy"? Where do Catholics draw that line?

Another very fair question.

The Doctrinal Note on Some Questions Regarding the Participation of Catholics in Political Life acknowledges that, as to many issues, "a plurality of morally acceptable policies and solutions arises. It is not the Church’s task to set forth specific political solutions – and even less to propose a single solution as the acceptable one – to temporal questions that God has left to the free and responsible judgment of each person." (§3) It further recognizes that "there can generally be a plurality of political parties in which Catholics may exercise – especially through legislative assemblies – their right and duty to contribute to the public life of their country. This arises because of the contingent nature of certain choices regarding the ordering of society, the variety of strategies available for accomplishing or guaranteeing the same fundamental value, the possibility of different interpretations of the basic principles of political theory, and the technical complexity of many political problems." (Ibid)

The Note reminds us that Saint Pope John Paul II warned many times of the dangers which follow from confusion between the religious and political spheres. “Extremely sensitive situations arise when a specifically religious norm becomes or tends to become the law of a state without due consideration for the distinction between the domains proper to religion and to political society. In practice, the identification of religious law with civil law can stifle religious freedom, even going so far as to restrict or deny other inalienable human rights.” (§6)

Accordingly, setting aside the claims of Catholic Integralists, “the Church’s Magisterium does not wish to exercise political power or eliminate the freedom of opinion of Catholics regarding contingent questions. Instead, it intends – as is its proper function – to instruct and illuminate the consciences of the faithful, particularly those involved in political life, so that their actions may always serve the integral promotion of the human person and the common good.” (§6)

With respect to the vast majority of political disputes, the ordinary Magisterium at most expresses “a prudential judgment on a matter about which different conclusions are permissible.”[1] In these situations, as Saint John Paul II has stated, the “church has no models to present.” (Centesimus Annus § 43)

But there are limits: In a relatively small number of cases, the “magisterium proposes something as binding on the consciences of all Catholics.”[2]

"When political activity comes up against moral principles that do not admit of exception, compromise or derogation, the Catholic commitment becomes more evident and laden with responsibility. In the face of fundamental and inalienable ethical demands, Christians must recognize that what is at stake is the essence of the moral law, which concerns the integral good of the human person." (§4) In these (few) cases, the Church does believe that the civil law ought to accord with moral law. Hence, speaking of the duties of lawmakers, the Note explains that: “For them, as for every Catholic, it is impossible to promote such laws or to vote for them.” (Ibid.)

Even in those areas, however, the Church is pragmatic: “As John Paul II has taught in his Encyclical Letter Evangelium vitae regarding the situation in which it is not possible to overturn or completely repeal a law allowing abortion which is already in force or coming up for a vote, «an elected official, whose absolute personal opposition to procured abortion was well known, could licitly support proposals aimed at limiting the harm done by such a law and at lessening its negative consequences at the level of general opinion and public morality.” (§4)

In thinking about all of this, it often strikes me that, with few exceptions, such as abortion, murder, suicide, euthanasia, the death penalty, and so on, the Church mainly gives broad guidance rather than detailed policies.

If it thus seems as though the Church is unwilling to draw a bright line answer to my friend’s question, perhaps it is because the Church must navigate between Scylla and Charybdis. As prominent Vatican observer John Allen wrote:

On the one hand, it's fully legitimate to expect someone who calls him or herself “Catholic” to take the faith seriously in terms of public choices. At the same time, moral calculations in prudential circumstances are not the direct competence of Church authorities. It is a maddening dilemma: to one side lies the danger of clericalism, to the other assimilation of fecklessness. How to strike the right balance is perhaps the most pressing question facing the American church with regard to its engagement in public life.[3]

In any event, these are topics on which far smarter folks than I have written a small mountain of books and scholarly articles. I urge you to go forth and explore.

Roman Catholicism, Religious Assent, and Private Reason: The Case of the Gospel of Life

Longtime regular readers have probably figured out that I am pro-life. Over on Facebook, I posted something expressing a certain amount of dissatisfaction with Chief Justice Roberts' recent decision in June Medical Services v. Russo, the SCOTUS's latest pronouncement on abortion.

This prompted a friend to post the following reply:

Putting abortion to one side for a moment, do you favor things that would reduce the number of unwanted pregnancies? And what exactly? Do you favor free or subsidized contraception? Sex education broadly available to kids? Free or subsidized health care for pregnant moms, and free or subsidized help for young families? More adoptions? Put simply, while we all struggle to find agreement on abortion, are there other things we can do to collectively address your heartfelt objections? I do not agree with you, but I do not want to ignore your heartfelt view. What other policies can I support that you would view as helping here?

These are great questions, fairly asked, and deserve a fair answer. Such an answer, of course, requires more room than the usual Facebook reply. Hence, this blog post.

At least insofar as the question about contraception is concerned, I would respectfully suggest that its phrasing is problematic. I am, as you know, a Roman Catholic who tries (but all too often fails) to adhere to the faith. A core tenet of Roman Catholicism is the doctrine of religious assent:

Divine assistance is also given to the successors of the apostles, teaching in communion with the successor of Peter, and, in a particular way, to the bishop of Rome, pastor of the whole Church, when, without arriving at an infallible definition and without pronouncing in a "definitive manner," they propose in the exercise of the ordinary Magisterium a teaching that leads to better understanding of Revelation in matters of faith and morals. To this ordinary teaching the faithful "are to adhere to it with religious assent"which, though distinct from the assent of faith, is nonetheless an extension of it. (Catechism § 892.)

In his encyclical Evangelium Vitae, Saint Pope John Paul II affirmed that "direct abortion ... always constitutes a grave moral disorder." He specifically stated that this teaching is part of "the Church's Tradition and taught by the ordinary and universal Magisterium." (§ 62) In addition, JPII confirmed that "despite their differences of nature and moral gravity, contraception and abortion are often closely connected, as fruits of the same tree." (§ 13) In so doing, he disappointed those who hoped he would overturn or at least modify the ban on contraception set out in Pope Paul VI's encyclical Humanae Vitae (§ 14).

Although neither encyclical possesses the degree of infallibility Vatican I attributed to papal definitions, both possess the infallibility which Vatican II attributed to the teaching of the "ordinary and universal magisterium." (See Sullivan). As such, both command religious assent.

So what does that mean? The Dogmatic Constitution on the Church (Lumen Gentium) teaches that religious assent requires we acknowledge the teachings "with reverence" and "sincerely" adhere thereto. Despite the arguments of some Cafeteria Catholics I can't see any way around my obligation to adhere to the Church's position on contraception.

By the way, let me touch on an issue that often comes up at this point. Some critics of the doctrine of religious assent, especially as applied to issues involving the Gospel of Life, contend that it treats Catholics as unthinking automatons marching to the dictates of the Church hierarchy. The relationship between individual reason and religious assent is extremely complex. It is worth pointing out, however, that the church encourages lay initiative “especially when the matter involves discovering or inventing the means for permeating social, political, and economic realities with the demands of Christian doctrine and life.” (Catechism § 899) The Church also acknowledges that:

In the work of teaching and applying Christian morality, the Church needs the dedication of pastors, the knowledge of theologians, and the contribution of all Christians and men of good will. Faith and the practice of the Gospel provide each person with an experience of life "in Christ," who enlightens him and makes him able to evaluate the divine and human realities according to the Spirit of God.Thus the Holy Spirit can use the humblest to enlighten the learned and those in the highest positions. (Catechism § 2038) 

Hence, it is the task of Catholic intellectuals to exercise critical reflective judgment with respect to society, the Church, and the relationship between the two. An an active and critical role for the laity seems especially important with respect to economic life, as to which JPII emphasized that “church has no models to present." (Centesimus Annus § 43) I note in passing that this is why my scholarship is increasingly focused on using Catholic social teaching to critique corporate law.

But I digress.

As for my friend's other proposals, they all strike me as reasonable and desirable. The Gospel of Life teaches that we have to respect life from its beginning at conception to its end at natural death. Hence, my problem with the American political duopoly is that too many Republicans appear to care about life only until birth and that too many Democrats appear to only care about life after birth. In contrast, a polity founded on Catholic social thought would recognize that the "starting point for a correct and constructive relationship between the family and society is the recognition of the subjectivity and the social priority of the family. Their intimate relationship requires that 'society should never fail in its fundamental task of respecting and fostering the family.'" (Compendium § 252)

Accordingly, I am in substantial agreement with the platform of the American Solidarity Party:

• Federal and state governments must enact constitutional and legal measures establishing the right to life from conception until natural death. These measures specifically include a constitutional amendment clarifying that there is no right to abortion, as well as laws that prohibit or restrict abortion. Because human life begins at conception, the intentional destruction of human embryos in any context must end.
• Federal, state, and local governments must end taxpayer funding of organizations that provide, promote, or facilitate abortions, and of health-care plans that include abortion coverage. Such funding should be redirected to organizations that promote healthy pregnancies and prenatal care.
• Federal and state governments must end capital punishment in light of its disproportionate use against those with fewer legal resources, the impossibility of reversal, and the existence of alternative ways to ensure protection for the rest of society.
• We support efforts to help prevent the tragedy of suicide, including universal access to affordable mental-health care and the destigmatization of mental illness. Assisted suicide and euthanasia are a violation of disability rights, medical ethics, and human dignity, and must be prohibited in every state.
• Federal and state governments should collaborate to guarantee universal healthcare by diverse means, including single-payer initiatives, direct subsidization of provider networks, subsidized education for medical professionals willing to work in rural areas, support for cost-sharing programs and mutual aid societies, home care grants, simplified regulation, and the easing of restrictions on the importation of prescription drugs.
• Health policy must include protections for those with preexisting, chronic, and terminal conditions. We must include those who have no means to save for an emergency, people at every stage of life from prenatal care to hospice care, and people who find themselves in need of medical assistance while away from their home network.

Does that answer the question?

Brainstorming re Remote Teaching

On the assumption that some or all of my teaching will be done remotely in the fall 2020 semester, I've been thinking about how to do it better. Here's some preliminary thoughts and some questions for further reflection. Feedback from recent or current law students especially welcome. (Note that I sent the bulk of this post by email to the students I taught remotely in Advanced Corporation Law last spring and to the students who I taught in person last fall in Mergers & Acquisitions. I figure the former can tell me what needs improvement from a pedagogic style perspective and the latter can anticipate how to adapt that course to the remote setting. After all, why not go to the proverbial horses' mouth?)

Preliminary Notes

• I teach exclusively using lecture. A comprehensive PowerPoint presentation accompanies each lecture, although the text on the slides is a pretty bare-bones outline.
• My remote learning base is my home office, which is equipped with a Mac with built-in camera and microphone. Any software or hardware must be Mac-compatible.
• I am familiar with using Zoom to share my desktop so that students can see me, the PowerPoint presentation, the Zoom chat room, and perhaps one other open window at a time.
• My students uniformly turn off their video and mute their audio, so I cannot see their faces and can only hear them when they unmute to ask a question.
• I will lay down a set of class rules about issues like muting microphones, raising one’s hand, and so on at the start of the semester with periodic reminders.

Questions

• Attendance during the remote learning in the spring 2020 semester was low; about 50%. While part of that may have been attributable to various pandemic-related factors, it is also possible that some students—knowing the sessions were recorded and posted to the law school intraweb—may have decided to view the lectures asynchronously.
• Is that cause for concern?
• Do I need to do anything to make sure the lectures are accessible for students with hearing or visual difficulties?
• One common suggestion I have seen for enlivening remote learning lectures is to have a second speaker break in for a short presentation.
• Would colleagues be willing to do that?
• Good idea?

Learning Goals

• The lighting in my office is very unsatisfactory.
  • Find someone knowledgeable to assess and recommend lighting, camera, and microphone setups.
• Are there alternatives to Zoom?
• Find out if it is possible to connect an iPad to the Mac to use as a whiteboard.
  • If not, is there a pen-based alternative whiteboard application/technology?
• There is data suggesting that the typical college student’s attention span in class is about ten minutes. I recall seeing data—but cannot now find it—suggesting that the typical attention span of university students in remote learning is about 7 minutes.
  • Note that part of the popularity of TED talks may be the 18 minute limit, which ensures they do not tax the participants’ attention span.
  • Find ways of breaking remote lectures into segments of no more than 10 minutes, with some alternative activity in the breaks.
• I have wanted for some time to include some sort of student feedback during a lecture. (I have planned for years to learn how to use clickers in our classrooms and am ashamed to admit I have let it slide.) Pop ungraded quizzes might be a good way of checking student comprehension and also a segment break activity.
  • Having some sort of feedback is especially important because one cannot see the students’ faces and thus cannot assess their attention level.
  • Learn how to use Zoom’s poll function.
    • Can Zoom’s poll function be incorporated into a PowerPoint presentation?
  • Find out if there are alternatives to Zoom’s poll function that might be a superior way of having students “answer” questions.
  • One possibility I am considering is assigning a few students ahead of each class to each give a 5-minute presentation on a topic relevant to the lecture that day.
• How to deal with students learning asynchronously?
• PowerPoint presentations tend to be static.
  • Find out if there is software available that could be used to create animations (easily) and then embed them in a PowerPoint deck (easily)?
  • If so, learn how to use it.

• In my fall class (Mergers & Acquisitions), there is a great deal of attention paid to looking at specific Word documents (such as merger contracts) and parsing them.
• Is there a better way of showing them than Word or a PDF viewer?
• If so, learn how to use it.
• Some websites recommend building in time pre-class for social chatter and community building.
• Our schedule does not currently contemplate allowing that.