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Archive for April, 2013

An article by Shailini Jandial George, a Professor of Legal Writing at Suffolk University Law School just caught my eye.  It’s entitled, “Teaching the Smartphone Generation: How Cognitive Science Can Improve Learning in Law School” and you can download it from SSRN here.  Here’s what the abstract says:

“Today’s law student enters law school as a digital native, constantly ‘plugged in’ and accessing information at a moment’s notice, often during class time itself. Yet scholars agree that these students are entering law school with weaker reading and reasoning skills than prior generations, due in large part to the way students multitask through life. This article aims to address the problems caused by the intersection of these two issues by applying cognitive learning theory to the law school environment. Part One examines the characteristics of our current students by describing their skills and learning styles upon arriving at law school. Part Two examines cognitive learning theory insofar as it can inform our teaching andragogy: specifically, how do today’s students learn, how can we help our students learn better, and what effect does their multitasking have on learning? The final section suggests ways for students and educators to better translate the information offered in class into knowledge. Ultimately, this article suggests teaching students about metacognition and effective study techniques while also encouraging professors to design and plan their courses by adopting cognitive learning theories and using more visual aids, visual exercises, and assessments to help students better learn the material.”

I firmly believe that as educators we have to “meet our students where they are” and this belief has motivated me (in middle age) to try to learn about new technologies and social media with a view to bridging an ever increasing generation gap.  I’ve often been heard to remark in law teacher gatherings that the average age of each cohort of students I teach stays roughly the same and yet every year I get older.   Moreover, I am convinced that we need to focus at least as much on how students learn as we do on the content of what we teach if we are to promote effective and useful learning directed towards the achievement of identifiable outcomes and the acquisition of professional competencies.  I therefore buy into the main ideas and arguments that Professor George is advancing.  My one question for the members of the Google Generation is: do you think Professor George’s descriptive claim is accurate?  Do you recognize yourselves in her description of the modern law student “as a [multi-tasking] digital native, constantly ‘plugged in’ and accessing information at a moment’s notice, often during class time itself”?  Or is the truth more nuanced?

I need to know who I’m dealing with.

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I’ve been involved in the teaching and practice of bankruptcy law for twenty years.  The more I teach it and the more I learn, the more I am convinced that every lawyer needs at least a passing familiarity with bankruptcy law and that, for commercial lawyers, a good grounding in bankruptcy law is virtually essential.  Naturally, I’m biased.  But this isn’t just me trying to build student enrolment in my bankruptcy law class at Chicago-Kent or helping to sell the American Bankruptcy Institute’s excellent CLE programme to those of you who are already qualified attorneys.  Here are some of the reasons that lie behind my conviction.

  1. Whatever your practice area or speciality you will encounter bankruptcy issues.  You will have clients that go bust.  You will have clients that have other people go bust on them.  A business or individual client faced with foreclosure.  A matrimonial client who needs to know what impact an ex-spouse’s bankruptcy will have on the financial settlement.  A business client whose entire business model depends on intellectual property rights licensed by a corporation that just filed Chapter 11.  When a client comes to you and asks you what are the options, you will need some awareness of bankruptcy issues even if only for the purposes of making an effective referral.

  2. It’s a speciality for generalists.   I am often referred to as a “bankruptcy guy” but I try hard to resist being pigeonholed because bankruptcy is, in truth, the last bastion of the generalist.  Bankruptcy touches the whole of life.  Where there’s credit, there’s debt and where there’s debt, there’s a chance that some of the debt will turn out to be unserviceable.  Credit and debt arise in all kinds of contexts.  There’s business debt, there’s consumer debt, there’s sovereign debt, there’s municipal debt.  While in an introductory bankruptcy law class, you will likely only consider business and consumer bankruptcy, this breadth of context cannot fail to increase your awareness of everyday lending transactions and practices ranging from the complex debt financing of many large corporations to straightforward asset-based financing such as auto loans to sub-prime and payday lending.  You’ll also learn about basic accounting, finance and valuation concepts. Moreover, bankruptcy law interacts constantly with other bodies of law.  It affects contracts, property rights and secured transactions and so requires us continuously to revisit foundational legal knowledge and basic principles.  The issues arising out of these interactions between bankruptcy law and other areas of law frequently have high stakes.  For example, if your client’s business model depends entirely on intellectual property rights that the client is permitted to exploit under a license, the legal implications of the licensor’s bankruptcy for the continuance of the license on its current terms will be of more than mere academic interest.  Bankruptcy is therefore far from being a narrow specialism.
  3. Bankruptcy law affects the way in which transactions are planned and structured.  There’s a natural tendency for us to think that bankruptcy law only matters once we’re presented with a debtor who has filed for bankruptcy.  But bankruptcy is not just an event that we deal with when it happens.  It’s a risk that transactional lawyers have to worry about.  Another of way of making the same point is to say that transactional lawyers often work in the shadow of bankruptcy law.  To take a simple example, lenders will frequently insist that the borrower provide collateral as a condition of a loan.  A lender who has recourse to collateral is better placed in the event of the borrower’s default and bankruptcy than a lender who has nothing more than a contractual right to repayment.  Transactional lawyers also need to understand the potential impact of the bankruptcy trustee’s avoiding powers on pre-bankruptcy transactions and plan accordingly.  For an illustration, see this discussion that I had with Ken Adams about the drafting of contractual provisions in loan notes aimed at protecting the lender against the risk that the borrower’s repayment of the notes might be clawed back under section 547 of the Bankruptcy Code if the borrower subsequently files for bankruptcy.
  4. It’s a great class to learn how to use statutory material to solve problems.  If you don’t like big statutes, then you may need to rethink your career plans.  In bankruptcy law, statutory material is front and centre.  You’ll be parsing complex and challenging statutory language (a transferable skill).  But more importantly, you’ll learn how that language can be used to resolve real problems.
  5. Bankruptcy law is rich in important and complex policy questions.  Why do we have a system that allows for forgiveness or restructuring of debt at all?  How best do we strike a balance between the interests of financially troubled debtors and their creditors?  Why should some creditors get more favorably treated than others?  And that’s just scratching the surface.

Go on, sign up!

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I encourage all law students to read this post over at the Law School Academic Support Blog about the importance of not abandoning common sense as the pressure on you increases towards the end of semester.  You’ve no doubt heard it all before but it bears repeating.  Good luck over the next few weeks – and don’t burn the candle at both ends!

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