ProfessorBainbridge.com

Professor Bainbridge versus the Socratic Method: A ProfessorBainbridge.com Studio Production

The production values aren't great. But I am proud of the substance.

Reflections on being a Corporate Lawyer

A video from my new YouTube playlist on corporate law.

Phillip I. Blumberg was one of the giants of mid-20th Century corporate law; RIP

Phillip Blumberg was a well-regarded corporate lawyer on Wall Street before entering the academy as a law professor at Boston University and then serving as dean of the University of Connecticut law school. His magnum opus, The Law of Corporate Groups, remains an invaluable resource. Sadly, he passed away on February 14.

Connecticut law school posted an obituary here.

I never had the privilege of meeting him, but I was and am an admirer of his many contributions ti=o corporate law.

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. 

Law school hiring news from Virginia

My alma mater, University of Virginia's law school, has made some great hires lately: Brian Leiter reports that Kim Kraweic and Mitu Gulati are moving from Duke to my alma mater Virginia School of Law. He earlier reported that Virginia hired Larry Solum away from Georgetown. And still earlier had reported that Cathy Hwang had been hired by Virginia from Utah.

Great move for all parties. I am huge fans of them all and think they'll make each other stronger. 

 

I've been thinking lately that when I retire from UCLA, Helen and I might move back to Charlottesville and it would be great to be able to see these friends on a more regular basis.

UCLA School of Law announces that Fall 2020 will be almost exclusively remote learning

Dean Jennifer Mnookin announced the policy in a lengthy letter to the faculty, students, and staff. Here's the key point:

Given the current situation surrounding the COVID-19 pandemic, especially here in Southern California, I have made the decision, with the approval of our Executive Vice Chancellor and Provost, that our fall semester’s courses at the law school, with very limited exceptions possible for a small number of live-client experiential classes, will be entirely remote. ...

It's worth reading the whole thing.

My new UCLA Law Colleague Andrew Verstein elected to the American Law Institute

I am delighted to report that my friend and new UCLA Law colleague Andrew Verstein has been elected to the American Law Institute, which drafts restatements of the law and other resources for legal scholars, judges and practitioners. An outstanding recognition for this brilliant young scholar.

New UCLA Law Faculty

Six leading scholars join UCLA Law’s faculty in 2020-21: Mario Biagioli, an expert in law, science and technology; Kimberly Clausing, a prominent voice in international trade and public finance; Meirav Furth-Matzkin, who explores the meeting of contract law, consumer protection and regulation; Jonathan Glater, who examines how the law both enables and acts as a barrier to access to higher education.

Great additions all, but I'm especially pleased that we hired Fernán Restrepo, who trains his empirically based research on corporate law in the context of financial and non-financial companies and Andrew Verstein, an authority in contract law, corporate law, and securities regulation and litigation.

The front matter for my new Advanced Corporation Law casebook: Table of content, table of cases, preface, Chapter 1

After I announced that my new Advanced Corporation Law casebook was in galleys, Tennessee law professor Joan Heminway (@VolunteerTwit) kindly suggested I post the front matter--table of contents, preface, table of cases, etc...

Glad to do it. I also included Chapter 1 as a sample. Download the front matter here.

Comments welcome; indeed, encouraged.

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.

"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.

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.

Berkeley and Harvard law schools to be on-line Fall 2020

UCLA Faculty Association:

The University of California, Berkeley School of Law will remain fully online for the fall semester. Dean Erwin Chemerinsky informed students by email Friday of the decision, which he wrote was made with “great reflection and study.” That makes Berkeley the second law school to unveil plans to stay remote amid the COVID-19 pandemic. Harvard Law School made a similar announcement June 3.

I'm not sure whether UCLAW has publicly announced its plans for the 2020-21 academic year, soI shall remain mum. I will note that the campus as a whole plans on a hybrid approach:

UCLA anticipates that 15% to 20% of courses will be offered on site or in an on-site and remote hybrid format. ...

Recommended infection-control procedures will be in place on campus, including physical distancing, de-densifying classrooms and other spaces, frequent cleaning of classrooms and facilities, and the wearing of face coverings while on campus, consistent with guidance from the Los Angeles County Department of Public Health. In addition, daily symptom checks will be required for everyone coming to campus or living in campus housing. Testing and contact tracing protocols for COVID-19 will also be in place.