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I just read this article - Supercharging Lawyer Development Through Feedbackauthored by Prof. Bill Henderson, which I picked up on the TaxProfBlog.  Music to my ears. The problem is how to institutionalize “legal education as professional development” – and, in particular, how to go about implementing a pedagogy which prides itself on “quality and speed of feedback, as well as on sufficient opportunity to practice” (to quote Daniel Kahneman to whom Prof. Henderson cites).  The closest approximation we currently have is Legal Writing.  But there’s no doubt we should make it happen as, I for one, do not find Prof. Henderson’s predictions either “fanciful or utopian”. It’s a design problem that law schools can and should try to solve.

My bankruptcy law students are aware that, as a general rule, federal bankruptcy law treats ipso facto clauses in contracts and leases with considerable disfavour. Ipso facto clauses are clauses that provide for a contract or lease to terminate in the event that a party files for bankruptcy. The Latin phrase means “by the fact itself” or “by that very fact” and its usage reflects the notion that a contract or lease including such a clause is designed to terminate “by the very fact” that one of the parties files for bankruptcy. Bankruptcy law doesn’t like ipso facto clauses because they deprive the bankruptcy estate of valuable assets that could otherwise be monetized for the benefit of creditors.

 

As my bankruptcy law students also know, there are exceptional circumstances in which these clauses do hold up. Ken Adams, Bob Eisenbach, and I just had an article published in the ABA’s Business Law Today that discusses these clauses and proposes model language that practitioners can use when drafting them. We also suggest – well it was Ken’s idea really – that we should cut out the Latin and start referring to ipso facto clauses in plain old English as “termination-on-bankruptcy” provisions. I welcome any thoughts and comments on the article.

A few weeks ago I got an invitation from Brian Rogers, aka The Contracts Guy to participate in a ‘blog hop’.  Regular readers will know that I am a great fan of Brian’s blog as it helps me to connect my students to the real world of transactional law and practice.  Such is my respect for Brian that I readily accepted the invitation… without having the first iota of a clue what a ‘blog hop’ is…

As Brian has kindly encouraged followers of his blog to check me out, I’ll be encouraging you all at the end of this post to ‘hop’ to the blogs & sites of some other great people whose work I follow regularly.  So keep reading.

Before I get to the introductions, the topic of the ‘blog hop’ is ‘why I write’.  I suppose a slightly edgier way to frame the topic is to ask the question: ‘why bother?’  Well here goes.

 

What am I working on?

I am not the most disciplined of bloggers.  There’s a lot of self-help stuff out there from social media savvy types who can help you build your blog traffic.  And most of it says that you should blog little and often. I tend to go in fits and starts depending on my other commitments. But as an educator, I find that blogging is a good way to offer a resource to a student audience that in some ways supplements what I do in the class room and in other ways seeks to go beyond the confines of the subjects I teach (contracts, bankruptcy, business organizations) to touch on topics of general relevance to the law students of today and tomorrow.   So I post about contracts and contracts teaching: see here, here, and here.  But I also post about careers, soft skills, and try to engage 1L law students in particular to start thinking about career development from Day One of law school.  I haven’t ever really sat down and systematically articulated my views on the state of legal education in the US or in my home country (the UK).  But I think my views can easily be discerned: see here and here.  Suffice to say, we live in interesting times.

 

How does my writing differ from others of its genre?

First and foremost, I want to connect with students (current and prospective). But at the same time, I want to reach practitioners, like Brian, who enable me to expand my practitioner networks and ensure my knowledge of the law as practiced and of the realities of the legal services market is fully up to speed.  So I aim to be informal while hoping that folks don’t think I’m glib or trying to be ‘hip’. It’s nice to get away from the formal constraints of the other kinds of writing in which I engage (e.g. law review articles).

 

Why do I write what I write?

I am trying to be a ‘bridge’ from the world of higher education to the real world of work – and, in particular, from the law school class room to the practice of law.  See further here  – one of my early posts.  The ‘way’ in ‘Walters Way’ is used in the same sense (a route that links two points) rather than in the Frank Sinatra sense!

 

How does my writing process work?

I have to confess that my writing process is fairly random.  A problem not helped by my tendency to make notes of my best ideas on pieces of scrap paper that I subsequently lose.  I follow other blogs in my areas of particular interest and accumulate links and contacts.  Several of my posts have been shout-outs to great blogs, sites or other resources that I’ve found helpful and think will be helpful to students.

 

And while we are on the subject of shout-outs here are some other people you should check out…

Kevin O’Keefe is the CEO and founder of LexBlog, Inc.  Kevin helps lawyers and law firms build relationships and develop their practices using social media and blogging. He posts consistently excellent content on his “Real Lawyers Have Blogs” site. You can also find him on twitter: @kevinokeefe.

Angela Kopolovich is the Managing Director of Alegna International, an international legal recruitment boutique.  She maintains a blog, “It’s All About Who You Know”. In my job, it is absolutely imperative that I have a good understanding of the rapidly changing legal services market and trends in hiring in order to best advise current and prospective students. Angela is a source of valuable insights.  Her twitter is @Recruiter_Law.

Alison Monahan is the San Francisco based founder of The Girl’s Guide to Law School and Trebuchet.  Readers of this blog will know that I am big fan of The Girl’s Guide and of Alison’s various other related enterprises.  She is my main ‘go to’ source for ideas on how best to support my students with their studies, decision making, and professional development.  Alison keeps it real! Follow her on twitter: @GirlsGuidetoLS.

Students and practitioners with an interest in bankruptcy law may be interested in the work of the American Bankruptcy Institute’s Commission to Study the Reform of Chapter 11 of the Bankruptcy Code.  The Commission’s study is premised on the concern that Chapter 11, originally enacted in 1978, is now significantly out of date.  One particular concern is that Chapter 11 in the general run of cases has become little more than a glorified nationwide foreclosure process that functions principally for the benefit of secured creditors at the expense of debtors and other stakeholders.

In April, I was lucky to be invited to speak at a symposium jointly organized by the American Bankruptcy Institute and the University of Illinois that addressed the implications of secured creditor capture of Chapter 11.  My main message to reformers in the US, drawing on secured creditors’ responses to legislative erosion of their rights in the United Kingdom, was that lenders will invariably adjust to legislative changes that affect their interests.  Accordingly, the designers of any new bankruptcy law must not lose sight of the tendency of powerful constituencies to undermine reform efforts, whether through the political process, or by other means, such as transactional innovation.

An early draft of my written paper is available here.

And you can watch a recording of my presentation at the symposium and the follow-up commentary provided by Ted Janger of Brooklyn Law School here.

I had the pleasure recently of hearing a talk by Professor Bernie Burk from UNC Law School based on his paper, What’s New About the New Normal: The Evolving Market for New Lawyers in the 21st Century.  His paper demonstrates empirically that entry-level hiring by BigLaw has contracted at six times the rate of other sectors of the legal services market.  Burk then goes on to argue in plausible and balanced fashion that the contraction in BigLaw hiring is a structural rather than a cyclical change that reflects fundamental changes in the pricing and delivery of legal services.

My main takeaway from the paper concerns the impact of what some have described as ‘the death of BigLaw’ (see, for example here and here) on the rest of the market.  Fewer BigLaw entry-level jobs for highly qualified Ivy Leaguers and T-14ers means that there is a trickle down effect.  As Burk puts it early on in the paper:

‘Though [BigLaw] has historically hired only 10%-20% of each graduating class, it is responsible for over half the entry-level Law Jobs lost since 2008. And because BigLaw historically has hired a disproportionate number of the candidates most attractive to employers, this contraction has sent a new cohort of highly accomplished and credentialed law graduates previously absorbed by BigLaw into competition for non-BigLaw jobs, disrupting common understandings regarding where new graduates with particular ranges of credentials could expect to find work.  These findings suggest that the changes in and to BigLaw are driving the changes in the entry-level Law Jobs market more generally.’

If you buy the structural argument (I do), there are some fairly obvious implications for law schools, like my own, that are outside the so-called elite.  The sustained decline in law school applicants indicates that a market correction is already well under way.  The time for us to grapple with the short and long term implications of the ‘new normal’ for the product that we offer and how we price and deliver it is clearly long overdue.

As no doubt everyone is only too painfully aware, the US News Law School rankings for 2015 were published this month.  This posting on the Legal Skills Prof Blog links to evidence that suggests that employers don’t give much weight to the law school rankings in their hiring decisions.  My guess is that once you get beyond the top handful of elite schools, rankings are indeed a pretty weak variable in hiring decisions.  In other words, I’m inclined to think that the finding is mostly true.

A while ago I posted some brief thoughts on the case method of law school instruction.

One view I expressed in that post was as follows:

“In Contracts, I want students to think of cases as failures.  In other words, not only are we reading cases with the aim of identifying the issues, identifying the facts that the court regarded as essential to its decision, extracting the holding, and getting at the court’s reasoning. We are reading them to learn how litigation could have been avoided or, perhaps, how the litigation could have been conducted better from the perspective of one party or another.  This for the most part is a transactional mindset.”

This seemed to resonate with a number of you – especially with those of you who are fellow law profs or former students.

In the latest issue of the Journal of Legal Education, a quarterly publication of the Association of American Law Schools, there is a short piece by Marvin Chirelstein, a well known Emeritus Professor at Columbia Law School, that explores a related question.  Why do we teach the cases that we teach?  What informs the selection of cases and case extracts that we inflict upon our students?

Part of the answer appears to lie in a version of group think.  There are numerous case books on the market that all give prominence to a handful of cases, e.g. Lucy v. Zehmer, Peevyhouse, Wood v. Lucy.  These cases are memorable, suggests Professor Chirelstein, possibly because of their narrative value, possibly because of their ‘outright silliness’.

The simple truth is that a ‘canon’ of Contracts cases has emerged from which we appear to be loath to depart even though, to quote Chirelstein, “the decisions best remembered by our students are largely freaks – that is, single instances unlikely ever at any time to be repeated in the same form.”

Professor Larry Cunningham has demonstrated that parts of the canon do have considerable value in helping us to understand the stability of the common law and the continuing relevance of case precedents as tools for resolving modern day disputes.  Nevertheless, readers will not be surprised to learn that I am sympathetic with Chirelstein’s own favoured selection criteria:

“The cases of my selection would have one consistent theme, to-wit, the inadequacy of legal draftsmanship. Under that heading, the relevant classroom questions would be:

  1. Why did the litigated issue arise?
  2. Could the problem have been foreseen?
  3. If foreseeable, could it have been dealt with through further negotiation despite some added cost (though less, presumably, than the cost of litigation)?
  4. Even if the answer to 2 and/or 3 is no, would there be any contractual means or mechanism that could have been adopted to deal with unforeseen or unresolved contingencies.”

Time to rethink the canon.

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