ProfessorBainbridge.com

On Doing Legal Scholarship and Finding Your Scholarly Voice

I've been asked to participate in a faculty program offering "a broad discussion on scholarship, including the following:

• Finding your scholarly voice;
• When and how to engage multiple literatures (including when to stop reading and start
• writing);
• When and how to seek feedback on your work, both internally and externally;
• Conferences;
• Promoting your work (e.g., through social media); and
• Submissions."

Here's what I intend to say:

When I started out as a law professor I didn’t spend a lot of time thinking deep thoughts about what I was doing. I didn’t worry much about finding my scholarly voice. I was not very intentional about picking topics. I just sort of jumped into the pool and hoped for the best. And it worked out reasonably well.

Some years later, however, I encountered George Orwell’s essay Why I Write, and discovered that it was possible to be very intentional about the process.

Orwell says there are four primary motives for writing, all of which seem to me to be relevant to the scholarly enterprise.

“(i) Sheer egoism. Desire to seem clever, to be talked about, to be remembered after death . . ..” We are all guilty of it, but I think we need to be conscious of the errors that it can lead to. In particular, the desire to appear brilliant. Smarter than the average bear. Which leads to works like James Joyce’s Ulysses: impenetrable masses of jargon; choosing complexity over clarity; adopting tribal mores and memes so as to be accepted. 

“(ii) Aesthetic enthusiasm. Perception of beauty . . . in words and their right arrangement.” When I was a kid, I wanted to grow up to be a science fiction writer. As I got older, I realized two things: (1) I can’t write dialogue and (2) the vast majority of science fiction writers make almost no money. But I still think of myself as a writer. I enjoy the process of trying to find just the right word. Of trying to be clear. Turning a good phrase. Developing a flow and rhythm to the work. And I wanted to get better. So, I studied writing as a discipline. I found some excellent books on writing. I took some seminars on writing. “Craftsman-like” is a kiss of death in a tenure letter, but I think we should all aspire to a high level of craftsmanship.

I find it odd that a lot of law professors don’t seem to enjoy the writing process. They struggle. They view it as a chore. They labor endlessly over a project. I’ve got a friend who has been working on the same law review article for what seems like the last three years. I've read multiple drafts and it's very good. Yet, my friend can’t seem to cut the cord. My friend’s an editor, not a writer.

An analogy suggests itself. On my mother’s side, her father was a carpenter. Her three brothers were carpenters. My grandfather, in particular, was an exceptionally talented woodworker. He made beautifully crafted things. And then he sent them out into the world for others to enjoy. He got them to a stage at which they were the best work he could do and then he didn’t dither over trying to make them just a little bit better. So there’s a balance to be struck between creating a work of merit and deciding that’s it’s as good as it going to get. Or, as an older friend told me when I started out, you’re going to write a lot of juvenilia. We all do. You just have to be conscious of striving for maturity.

“(iii) Historical impulse. Desire to see things as they are, to find out true facts and store them up for the use of posterity.” When I started out at Illinois, my colleague John Novak used to say that the way to get tenure at a law school was to find an obscure legal issue and beat it to death in an article that has at least 300 footnotes. Rinse and repeat. Good advice at the time; probably not today. But it’s worth remembering that we are law professors. We teach in a professional school not a graduate school. Our students will go out into that profession. Our scholarship should be accessible and useful to them. We should see the law as it is and then share that insight with our profession.

“(iv) Political purpose – using the word ‘political’ in the widest possible sense. Desire to push the world in a certain direction, to alter other people’s idea of the kind of society that they should strive after.” Obviously, this is the reason and motivation most relevant to legal scholarship. As it should be. Yet, I think it is worth pondering the implications. We live in an increasingly tribal society. The legal profession is increasingly tribal. Even law schools show some tribalism, despite their tendency towards monoculture. Are you just writing for your tribe? Or are you trying to persuade people who reside in other tribes? Because they require different styles and choices.

Put another way, who is your audience? My scholarship got a lot better when I realized that I had a target audience and that I needed to adapt my work to reach them. So, for many years now, when I sit down to a new project, I have a specific audience in mind. It is the seven members of the Delaware Chancery Court and the five members of the Delaware Supreme Court. I see my job as writing them a letter that they will find useful and persuasive.

Find your audience and you’ll find your voice.

Anti-ESG Backlash Comes for Pension Plans that Force Beneficiaries into ESG Investments: Could Somebody Sue UCRP?

Kevin LaCroix reports that:

On June 2, 2023, an American Airlines pilot filed an ERISA class action lawsuit in the Northern District of Texas against American Airlines; the American Airlines Employee Benefits Committee; the company’s benefits plan administrator; and the company’s benefits plan advisor. The lawsuit purports to be filed on behalf of participants in the company’s employee benefits plan. A copy of the complaint can be found here.

The gist of the complaint is that the defendants “breached their fiduciary duties in violation of ERISA by investing millions of dollars of American Airlines employees’ retirement savings with investment managers and investment funds that pursue leftist political agendas through environmental, social and governance (‘ESG’) strategies, proxy voting, and shareholder activism—activities which fail to satisfy these fiduciaries’ statutory duties to maximize financial benefits in the sole interest of the Plan participants.” ...

He also reports that a similar lawsuit is pending against Delta.

Which leads me to a point of personal privilege. By virtue of my job I am obliged to participate in the University of California Retirement Plan. In pension plan terms, the rules under which my pension operates is an involuntary defined benefit plan. I cannot opt out and I have zero control over how my money is invested.

So what is UCRP doing with my money? UCRP's investment policy states that:

The Office of the Chief Investment Officer (“OCIO”) shall incorporate environmental sustainability, social responsibility, and governance (ESG) into the investment evaluation process as part of its overall risk assessment in its investments decision making. ESG factors are considered with the same weight as other material risk factors influencing investment decision making.

The policy statement further states that the plan must not hold tobacco stocks. UCRP is also in the process of divesting from fossil fuel companies.

So the answer to the question, "what is UCRP doing with my pension plan," is going big on ESG. 

Not only is the basic UCRP pension plan gone whole hog on ESG, but so have the voluntary 403(b) retirement saving plan options. Almost all of the choices are fossil fuel free because they are subject to the UCRP's ESG investment policies.

Eli Lehrer and Robert Eccles recently argued that employers should offer employees a choice between ESG and non-ESG funds. Specifically, they argue for legislation ensuring that "state employees in defined contribution plans can select non-ESG options."

Laws passed in decidedly red North Dakota and Idaho offer good models in this regard. North Dakota’s law defines “social investment” as “consideration of socially responsible criteria…for the purpose of obtaining an effect other than a maximized return” and requires the State Investment Board to “demonstrate a social investment would provide an equivalent or superior rate of return compared to a similar investment that is not a social investment and has a similar time horizon and risk” before making it. The Idaho law contains language with similar effect and allows that state-defined contribution plans offer employees socially-oriented investment funds only so long as they offer alternatives as well. Both policies are worthy of emulation.

I don't expect a deep blue state like California to consider mandating that state pensions offer non-ESG alternatives, especially with virtue signaller in chief Gavin Newsom as governor, but maybe we can get there by litigation? I understand that state university pension plans are exempt from ERISA. But surely a conservative public interest law firm could come up with a theory that relies on other fiduciary duty theories.

ChatGPT flunks an essay question on shareholder primacy versus director primacy

In an earlier post, I mused on whether ChatGPT and coming AI systems will spell the end of traditional law school exams. Which got me to wondering how ChatGPT would do on an essay question near and dear to my heart.

I asked:

Explain the differences between the shareholder primacy and director primacy theories of corporate governance

ChatGPT answered:

Shareholder primacy theory holds that the primary goal of a corporation is to maximize shareholder wealth. Under this theory, the board of directors is primarily accountable to the shareholders and should make decisions that will increase the value of their investments.

Director primacy theory, on the other hand, holds that the primary goal of a corporation is to serve the best interests of the company as a whole, not just the shareholders. Under this theory, the board of directors has a fiduciary duty to act in the best interests of the company and all of its stakeholders, including employees, customers, and the community.

In summary, Shareholder primacy theory focuses on maximizing shareholder wealth, Director primacy theory focuses on serving the best interests of the company as a whole, This means that the board of directors has a fiduciary duty to act in the best interests of the company and all of its stakeholders, not just the shareholders.

The definition of shareholder primacy is only half right (shareholder primacy also speaks to who has ultimate control of the corporation). The definition of director primacy is completely wrong. Indeed, egregiously so. See my list of director primacy bullet points.

ChatGPT: The End of Law School Essay Exams?

From The NY Times:

While grading essays for his world religions course last month, Antony Aumann, a professor of philosophy at Northern Michigan University, read what he said was easily “the best paper in the class.” It explored the morality of burqa bans with clean paragraphs, fitting examples and rigorous arguments.

A red flag instantly went up.

Mr. Aumann confronted his student over whether he had written the essay himself. The student confessed to using ChatGPT, a chatbot that delivers information, explains concepts and generates ideas in simple sentences — and, in this case, had written the paper.

This is going to require law schools to rethink the traditional essay exam format. 

Especially because ChatGPT is just the opening wedge:

OpenAI is expected to soon release another tool, GPT-4, which is better at generating text than previous versions.

Personally, I switched to multiple choice some years ago when I had a semester in which I had to teach 2 sections of Business Associations, each of which had 100+ students. Worryingly, although ChatGPT reportedly failed to pass a multistage multiple choice bar exam, it did pass the evidence and torts sections.

University students can watch class videos at double normal speed without losing significant comprehension

News you can use from UCLA:

In one experiment, the researchers divided 231 UCLA undergraduates into four groups and had them watch two 13-to-15-minute lecture videos — one on the Roman Empire and another on real estate appraisals. One group watched at normal speed, one at 1.5 times normal speed, another at double speed and the final group at 2.5 times normal speed. They were instructed not to pause the videos or take notes.

Immediately after the viewings, they were given comprehension tests on the individual videos, each comprising 20 multiple-choice and true-or-false questions. The normal-speed group averaged 26 correct answers out of 40, while the double-time group scored 25 (about the same as the 1.5-speed group). The 2.5-speed group didn’t do as well, answering only about 22 questions correctly. ...

“Surprisingly, video speed had little effect on both immediate and delayed comprehension until learners exceeded twice the normal speed,” said lead author Dillon Murphy, a doctoral student in psychology at UCLA.

So could you go through law school in 18 months instead of three years.

The "Academic Freedom Alliance"

Good news via Brian Leiter:

This new organization will provide moral and in some cases legal support for faculty whose academic freedom rights (including their right to engage in extramural speech) are under attack.  CHE has an article about the new organization here.   I will note that in recruiting initial members, it was made very clear that the AFA would have defended Ward Churchill and Steven Salaita, as well as Amy Wax and Adrian Vermeule.  That is how a principled defense of the academic freedom rights of faculty should proceed.

Tweeting about cancel culture and self-censorship

1/ "Our country’s history is filled with imperfect people who nevertheless did remarkable things." https://t.co/D1A0073flv #cancelculture

— Steve Bainbridge (@PrawfBainbridge) March 2, 2021

2/ "self-censorship: I found that merely 9% of Trump-supporting academics say they would feel comfortable expressing their political beliefs to a colleague" https://t.co/YZpw7TDTKP #cancelculture #selfcensorship #academictwitter

— Steve Bainbridge (@PrawfBainbridge) March 2, 2021

3/ Sir Kazuo Ishiguro is "worried that less established authors were self-censoring by avoiding writing from certain viewpoints or including characters outside their immediate experiences." https://t.co/xomfnbNrCv #cancelculture #selfcensorship

— Steve Bainbridge (@PrawfBainbridge) March 2, 2021

If UCLA is losing millions at university sports, why are we doing it?

According to the UCLA Faculty Association, the university athletic department has suffered over $40 million in operating deficits in fiscal years 2019 and 2020. So why do we keep doing it?

Some personal thoughts on teaching in times of crisis

I’ve noticed several fellow law professors posting on Facebook and on Twitter pondering whether to address the current crisis in class. It’s a legitimate question. And, I think, a hard one.

I was teaching Business Associations at Illinois the morning after Desert Storm started. I told the students it felt weird to be talking about agency law while thousands of people were at war. I also told them that my dad had been a career soldier, so I was really feeling strong emotions. That took about a minute.

But then I told them that part of being a professional is doing your job even in times of stress. Being a fiduciary meant showing up and getting on with your duties to your clients even when you feel like curling up in a corner. So I started teaching (scope of employment, if memory serves).

The law school newspaper said I was the only faculty member who mentioned the war. (It was a different time. Today, of course, there would be multiple institutional emails. Which is probably a good thing.)

In recent years, I’ve had younger colleagues tell me I need to be more sensitive and use class time to talk about what we’re all feeling. Maybe so, although I am personally very uncomfortable with that approach. Especially at UCLA, where what I’m feeling is often out of step with the majority. (Although I assume that I join 99.9999% of my colleagues and students in condemning the insurrection we saw the other day.) But even setting that aside, it’s just not in my comfort zone.

I’m not sure what I would do if I had to teach this week. I’m grateful UCLAW doesn’t start until after the Inauguration. I think I’d give them some version of what I gave the students at Illinois, although maybe accompanied with a more express acknowledgement that that’s hard. Because I think that principle is something they need to learn and one we don’t talk about enough these days.

FWIW, I got amazing student evaluations that semester. Many of them spoke of that moment with warmth and admiration.

I'm proposing to make remote teaching a permanent option for my law school

I just sent the powers that be at my law school the following message:

I’m finding that I really enjoy teaching remotely. Let me explain why:

1. As you know, many of my classes—especially Business Associations—have to be taught in our largest classrooms, where I have to boom to be heard in the back and where my eyesight—even with glasses—prevents me from seeing the back few rows as more than blurs.
1. Remotely, I can speak normally and can see student faces more easily.
2. Because I use a Mac at home and the office, switching to the classroom Windows machines has always been a headache.
1. Using a Mac to teach from has made my life much easier.
2. Using a Mac at home has also allowed me to be much more spontaneous. I routinely pause the lecture to pull things off the internet or open files from DropBox. My greatly diminished Windows skills make that much harder on the classroom screens.
3. I find I am more experimental. I am using PollEverywhere, with I think success. But I’m also incorporating more videos and so on to see what works.
4. I’m more available to students. I send out Doddle polls to find out when they want me to hold office hours in a week. I meet with them individually via Zoom even in the evening.
5. I have the flexibility of recording a class for asynchronous viewing in even of a crisis.
6. My attendance has been very good. 20-22 out of 24.
1. I credit that in part to the greater intimacy that online learning seems to promote.
7. I get a TON of student questions via chat. Students are much more willing to ask a question via private chat than to raise their hand in a classroom, especially because I have a policy of not naming the student who sent the question.
8. I’m even attending more faculty meetings since they went to remote.
9. My carbon footprint is lower. I’ve only driven my car 4 times since March.

What I propose is that the administration give serious thought to giving faculty an option to teach remotely on a permanent basis. In my case, for example, Helen and I are about 90% sure that we will not retire in California. Currently, my plan is to retire mid-2025, when I am Social Security eligible. But remote teaching would make it possible for Helen and I to move now and for me to continue teaching well past 2025. Plus, as you know, I am not a morning person and constantly request afternoon classes. But if I were on the East Coast, I could get up late, teach a class at 1 PM and it would still be 10 am in Los Angeles. 

Should we care that universities are likely to lose substantial football revenue?

The UCLA Faculty Association blog informs us that:

UCLA had 702 student athletes and USC had 576 in their athletic programs last year drawing an average of $181,395 and $206,054 of revenue to the schools, respectively. UCLA had a grand total of $127.3 million in athletic program revenue while USC drew $118.7 million, both ahead of the average for the Pac-12 conference, which was $106.4 million.

The biggest money maker at both Los Angeles schools was, of course, men's football, with the UCLA Bruins bringing in $41.3 million and the USC Trojans collecting $50 million. Next up was men's basketball, raising $12 million at UCLA and $6.3 million at USC. Basketball was the top-grossing sport for women at both colleges, bringing in $1 million at UCLA and $2.8 million at USC.

Should we care? First, it seems to me that the pertinent question is how much "profit" UCLA and USC will forego. My guess is that universities may end up saving money. Here's why:

• Most university sports programs even in the major revenue sports lose money. Coaches make millions, of course. and student athletes get the benefit of palatial dorms and athletic facilities, but even "revenue" sports at all but the top conferences often require subsidies from the general university budget or student "activities fees."
• At the top tier of schools where revenue sports are "profitable," universities have for years avoided unrelated business income taxation despite the fact that sports is clearly unrelated business.
• Any profits generated by top tier revenue sport programs do not go back to the university to subsidize academic programs. Instead, they are used to subsidize non-revenue sports.

The bottom line is that university athletics at best generate non-monetary benefits (name recognition, etc.) but at huge cost in terms of both monetary expenses and rampant corruption.

Reopening Universities: Catholic Social Teaching, Universities & COVID-19

Recommended viewing (HT: Haskell Murray):

Guest post by Bryce Tingle on teaching remotely

Our latest guest blogger is Bryce Tingle, N. Murray Edwards Chair in Business Law Director Financial Markets Regulation Programme, School of Public Policy Faculty of Law, University of Calgary.

I have a tremendously creative brother who manages the communications of the vast provincial health authority — most of the advice has come from him.

 

My experience with teaching online is very similar to yours.  I had an engaged, motivated class of students in Corporate Finance for the first two months and then after we moved online, they became passive and disinclined to participate. I have personally long believed that the single most boring cultural artifact we have developed as a civilization is the webinar, so it was with chagrin that I eventually realized webinars is what I was offering the students.  

 

Based on my experience this spring, I am recording my lectures for the fall and letting students listen to them asynchronously.  Each of the recorded lectures is no more than 15 minutes — which has meant splitting each week's lectures into smaller parts.  If I can’t stand to watch a lecture that’s longer than 15 minutes at a go, I can’t imagine my students will manage it.

 

At my brother’s recommendation, I used my iPhone to record videos of me lecturing.  (My brother advises that when the subject is sitting still, even iPhones that are several years old shoot video that is indistinguishable from high-end cameras.  He did recommend that I get a high-quality microphone to plug into the phone, as the sound on cell phone videos is poor.)

 

I found the usual things when I reviewed the first few lectures: I say “umm” and pause way too much; I don’t think my head presents a compelling object to stare at for hours on end; and it is boring to watch any person engage in a monologue.  Consequently, I have adopted the following plan:

 

1. I use the voice app of the iPhone to record my lectures (no video);

 

2. I send the sound file of each lecture to my RA this summer (we were provided with student help to move our courses online — and to ameliorate a terrible labour market for summer jobs).  The first thing he does is extensively edit the sound file to remove “umms”, pregnant pauses, sentences that end so poorly they must be redone, etc.

 

3. He then uses vyond.com to animate the videos.  My brother recommended Vyond as the simplest animation software to use.  Based on my experience so far, the animated videos — likely because they involve movement and change — are much easier to watch than a talking head.  I should note that my RA has no experience in computer graphics and had never used Vyond before.  He picked it up quite quickly.

 

4. These videos will be posted on a password-protected website (created and hosted on Squarespace in less than a day).

 

5. I will likely only spend an hour each week with the students synchronously on Zoom.  The in-person class will allow them to ask questions, we will work through problems together (which is part of how I normally teach), and I will have them take a quiz on the readings each class.  I am not going to record the classes for both privacy reasons and because I think that encourages students to skip class with the dubious plan of watching the recording later.  

 

6. I am concerned that the strong tendency of even good students this fall will be to let things slide.  What I saw this spring is that students have difficulty motivating themselves when they are at home all day.  This is why I am introducing a weekly quiz on the readings.  Their over-all performance on the quizzes over the semester will be worth something like 20% of their final grade.  I want to give them an incentive to stay current on the readings and to attend our synchronous online classes.  I am using Tophat to administer the quizzes.

 

7. In my Entrepreneurial Law class, I usually have each student do a paper on a startup of their choice (drawn either from a list of books or one they have encountered in real life).  This year, I am going to have each of them do up a 10 minute presentation and randomly select one or two each week to give their presentation over Zoom.  I think it will be helpful for students to be engaged if I am not the only one talking.

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.

California budget deal offers bad news for state employees and higher education

UCLA Faculty Association:

LOSERS

State workers

The budget would save about $3.6 billion per year by cutting state workers’ pay by roughly 10 percent and canceling the raises many are scheduled to receive in July. The deal gives Newsom the authority to impose two furlough days per month if pay-cut deals can’t be reached with unions that haven’t yet negotiated with the state.

Universities

California’s university systems will each lose about half a billion from their budgets under the deal announced Monday. The budget cuts $470 million from the University of California and $500 million from California State University, although that funding could be restored if the federal government provides more aid money. Some programs and departments, however, will get money originally included in Newsom’s January budget proposal, including $25 million for UC Riverside School of Medicine and $5 million for the UC Davis Grant Program for Animal Shelters.