| As
a law professor, I am particularly curious as to what
law schools can do to help develop a stronger image
among students of the kind of business lawyer who contributes
vitally to successful transactions, rather than one
who (as some popular critics would suggest) frustrates
them. The Task Force on Business Lawyers as Problem
Solvers is an opportunity for academics and practitioners
to join together in this mission. A problem-solving
orientation is valuable not only for what it teaches
about integrating legal knowledge with practical insight
but also for the opportunity it presents to introduce
a strong dose of professionalism into the educational
process.
The
idea that there is an "art" to business lawyering is
by no means revolutionary. Just as practitioners have
taken note of the art of making deals, law professors
have begun to see science in it as well. Most well known
here is the work of Professor Ron Gilson of Columbia
and Stanford, who argued in a famous Yale Law Journal
article that business lawyers are "transaction cost
engineers" who would benefit from a more sophisticated
understanding of the economics of contracting. This
idea has led to the development of a growing number
of courses at law schools around the country that study
the deal-making process, sometimes bringing in local
lawyers as resources. The "Deals" course designed by
Gilson and his Columbia colleague Victor Goldberg is
the most celebrated effort along these lines.
Drawing
from the explosion of work on judgment, decision-making
and conflict resolution, some schools have also added
materials on the psychology of contract formation and
other forms of economic behavior. The most innovative
law schools are coming to see the need to reform a portion
of their curriculum to more closely resemble that found
in MBA programs, with an emphasis on richly detailed
case studies, strategic decision-making and teamwork
solutions. They are also trying to give their students
a better understanding of the language and skills of
accounting and financial analysis, so that they can
speak more fluently to the business side of the deal.
To
me, there is great promise in joining the arts and sciences
of transactional lawyering. Law students need to become
familiar with the process of examining client objectives
and evaluating different courses of action in a proposed
transaction. For example, in a sale of a business, how
would you think about the trade-offs between a fixed
price and some sort of earn-out? What is the role of
representations and warranties? Are they just something
that buyers want and sellers resist, or is there some
more rational way to allocate the risk of informational
uncertainty (that is, finding the person who can produce
and verify the information most efficiently)?
By
looking at a series of different transactions from the
standpoint of .value-added lawyering," students can
begin to see the common kinds of issues that exist in
deals and refine their intuitions about how to help
design the best contractual structure. They can also
begin to gain a sense of the potential for dysfunctional
lawyering - lawyers' insistence on belaboring the unimportant,
or taking hard-line positions out of habit, fear of
being second-guessed or a desired posture for their
clients, even though there is little economic sense
to what they are pushing.
The
task force was established to help connect the efforts
of lawyers and academics more closely, with a view toward
producing books and other educational materials, plus
a series of live programs, that will help both law schools
and law firms with the training of younger business
lawyers. Academics very much need the help of the bar.
While many of the faculty who are innovating in this
area have some first-hand experience as business lawyers,
we do not necessarily have a large stock of empirical
evidence from which to draw in bridging the more abstract
insights of economics and psychology to the realities
of the lawyering process.
Our
scholarship and teaching could benefit considerably
from case studies and other kinds of data drawn directly
from legal practice, as well as the critical evaluation
of our ideas by practicing lawyers. These same kinds
of case studies could also be helpful to lawyers who
teach in continuing legal education programs, both for
in-house training and for wider professional audiences.
In turn, practitioner-led training might gain from a
better appreciation of the insights academics have recently
been offering about the dynamics of business transactions.
Obviously,
creativity and problem-solving skills can never fully
be taught in the classroom. Nothing here is meant to
suggest that experience will not be the lawyer's best
teacher, or that most of the training of young business
lawyers should not be spent on more basic analytical
and practical legal skills. But a more sophisticated
conceptual understanding of transactional. practice
and some early exposure to examples of good strategic
decision-making should make lawyers more critical and
adept "learners from experience" as their professional
training evolves.
Langevoort
is a professor of law at Georgetown University in Washington.
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