Theory and Philosophy Legal Resource Materials
Entrepreneurship Law Editorial Team
American Bar Association, Section of Legal Education and Admissions to the Bar, AN EDUCATIONAL CONTINUUM: REPORT OF THE TASK FORCE ON LAW SCHOOLS AND THE PROFESSION: NARROWING THE GAP (1992). [the "MacCrate Report"]
In this landmark report a task force of the American Bar Association examined the transition of young lawyers from law school to law practice and made several recommendations intended to make that transition proceed more smoothly.
David L. Bodde, THE INTENTIONAL ENTREPRENEUR: BRINGING TECHNOLOGY AND ENGINEERING TO THE REAL NEW ECONOMY (2004).
The “Intentional Entrepreneur” will help technology professionals and students of business, engineering, or science learn the art of entrepreneurship. The book supports its stories with chapters describing research on business models, marketing, new venture finance, and intellectual property. This book provides special emphasis to technology, with chapters on: the technology market cycle; disruptive technologies; path dependence, lock-in, and network economies; technology and social systems; and the acceleration of technological change. The book does not presuppose extensive knowledge of business or economics, and is suitable for undergraduates.
George W. Dent, Jr., Business Lawyers as Enterprise Architects, 64 Bus. Law. 279 (2009).
Abstract: For twenty-five years, the most widely accepted explanation of what business lawyers do was that offered by Professor Ronald Gilson in his article, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, in the Yale Law Journal. Examining the work of lawyers in large mergers and acquisitions, Professor Gilson concluded that business lawyers are transaction cost engineers. However, mergers and acquisitions are but one of many tasks handled by business lawyers, and their role in other contexts is quite different. Moreover, the work of business lawyers has changed considerably since 1984. This Article offers a broader and more current analysis of what business lawyers do and concludes that they are more accurately characterized as enterprise architects. The Article then discusses what skills business lawyers need and how law schools can best prepare them for this work.
Roy Stuckey, et al, BEST PRACTICES FOR LEGAL EDUCATION: A VISION AND A ROAD MAP (2007) [the "Best Practices" report].
Abstract (from Foreword):
The central message in this report is that law schools should: broaden the range of lessons they teach, reducing doctrinal instruction that uses the Socratic dialogue and the case method; integrate the teaching of knowledge, skills and values, and not treat them as separate subjects addressed in separate courses; and give much greater attention to instruction in professionalism. At the same time, the report recognizes that the program of instruction should reflect each law school’s mission for developing competent and committed professionals.
Roy T. Stuckey, History of the Clinical Education Program, USC School of Law (2008).
Abstract (from WORLDCAT):
This document was created by Roy Stuckey in 2007-08 as he cleaned out his files before retiring after 34 1/2 years at USC.
William M. Sullivan, et al, EDUCATING LAWYERS: PREPARATION FOR THE PROFESSION OF LAW (2007) [the “Carnegie Report”].
Abstract: Popularly known as the "Carnegie Report," this two-year study of legal education involved a comprehensive look at teaching and learning in American and Canadian law schools. The study provides an opportunity to rethink "thinking like a lawyer"—the paramount educational construct currently employed, which affords students powerful intellectual tools while also shaping education and professional practice in subsequent years in significant, yet often unrecognized, ways. The Report urges changes in legal education and makes seven recommendations such as integrating “lawyering” into the program of instruction at an early stage.
Barbara Black & Jill I. Gross, Making It Up As They Go Along: The Role of Law in Securities Arbitration, 23 Cardozo L. Rev. 991 (2002).
The privatization of the law through securities arbitration since 1987 has serious implications for the orderly and systematic development of the law resolving customer disputes. While development of the law has not yet, at least, been "frozen," courts have few opportunities to generate relevant precedent. Judicial and administrative opinions generated by the enforcement functions of the Securities and Exchange Commission ("SEC") and the SROs - although they do address standards governing broker-dealer conduct - do not address the legal issues that are frequently the most contested in private suits: whether the relationship between the customer and broker is fiduciary or contractual; the investor's obligation to use diligence (often phrased as "justifiable reliance"); and how to measure the investor's damages. Moreover, at a time when the industry is dramatically changing - e.g., sizable increase in the number of retail traders and the volume of retail trading, proliferation of discount brokers, increased volatility in the trading markets, new products, new methods of trading (online) bringing in new customers with different expectations - there are few occasions for the courts to address the issues in dispute among today's customers and brokers. Consequently, the small number of post-1987 precedents assume a disproportionate importance given their scarcity.
Deborah J. Cantrell, Common Ground: The Case for Collaboration Between Anti-Poverty Advocates and Public Interest Intellectual Property Advocates, 15 Va. J. Soc. Pol’y & L. 415 (2008).
Abstract (from author): This article examines the previously unappreciated common ground between scholars and advocates who work to eliminate poverty, and scholars and advocates who work on intellectual property issues in the public interest. The article first illustrates how scholars and advocates working on poverty and on public interest intellectual property have relied on rights talk to frame their social movements. Under the conventional narrative, the framing has accentuated differences between the movements. As the Article explains, the two movements share core principles and should recognize shared interests and goals. By developing a new model of how to view public interest movements, the Article analyzes both social movements in a light that brings common ground to the fore. Using this reframed perspective, the Article then demonstrates the benefits of collaboration between the two social movements by offering three examples of how the two movements can productively work together.
Eugene Clark, Looking Forward: Challenges Facing Legal Education in the 21st Century, 3 Phoenix L. Rev. 461 (2010).
Abstract (from author):
Change is always difficult, especially for lawyers. Our professional education leads us to look backwards to precedent, rather than forward to innovation. Our education teaches us to be critical and to take ideas and arguments apart. Law students, and then lawyers, tend to react to problems instead of building a system that focuses on general principles and designing creative solutions to meet their respective long-term needs. In this essay, I try to unshackle my mind from the paradigmatic chains of the past and dream of a better future for legal education.
Kim Diana Connolly, Elucidating the Elephant: Interdisciplinary Law School Classes, 11 Wash. U. J.L. & Pol'y 11 (2003).
Interdisciplinary law school classes provide perspective and training that elucidates the elephants. Despite a common notion that "lawyers, for the most part, work with and against other lawyers rather than in teams comprised of people from different specialties," the truth is that most of today's lawyers live in a more complex world that would benefit from interdisciplinary training. Not only does "practice as a lawyer often require some degree of conversance with other disciplines-at the least, an ability to know when to seek the assistance of other types of professionals or experts," but the "mutual understanding between ... professionals assists in eliminating the confusion, delays, and poor decisionmaking caused by professionals unprepared to interact with one another."
George W. Dent, Jr., Business Lawyers as Enterprise Architects, 64 Bus. Law. 279 (2009).
For twenty-five years, the most widely accepted explanation of what business lawyers do was that offered by Professor Ronald Gilson in his Article, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, in the Yale Law Journal. Examining the work of lawyers in large mergers and acquisitions, Professor Gilson concluded that business lawyers are transaction cost engineers. However, mergers and acquisitions are but one of many tasks handled by business lawyers, and their role in other contexts is quite different. Moreover, the work of business lawyers has changed considerably since 1984. This Article offers a broader and more current analysis of what business lawyers do and concludes that they are more accurately characterized as enterprise architects. The Article then discusses what skills business lawyers need and how law schools can best prepare them for this work.
Seth Freeman, Bridging the Gaps: How Cross-Disciplinary Training with MBAs Can Improve Transactional Education, Prepare Students for Private Practice, and Enhance University Life, 13 Fordham J. Corp. & Fin. L. 89 (2008).
Abstract (from author):
Most law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice. Unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional practice. The result is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner, conveying the impression that lawyers are more like competitive scholars than attorneys engaged with the problems of clients. Neither understanding of the law is exhaustive, of course, but law school's typically unbalanced emphasis on the one perspective can create problems as the students move into practice.
Ronald J. Gilson, Value Creation by Business Lawyers: Legal Skills and Asset Pricing, 94 Yale L. J. 239 (1984).
Clients have their own, often quite uncharitable, view of what business lawyers do. In an extreme version, business lawyers are perceived as evil sorcerers who use their special skills and professional magic to relieve clients of their possessions. Kurt Vonnegut makes the point in an amusing way. A law student is told by his favorite professor that, to get ahead in the practice of law, "a lawyer should be looking for situations where large amounts of money are about to change hands." Though this advice is hardly different from standard professional suggestions about how to build a practice, the reasons offered for the advice lay bare a quite different view of the business lawyer's function.
Ronald J. Gilson & Robert H. Mnookin, Foreword: Business Lawyers and Value Creation for Clients, 74 Or. R. Rev. 1 (1995).
Symposium marks an important milestone in legal scholarship and education: The spotlight falls on business lawyers for a change. Ten years ago, when one of us first wrote about what business lawyers really do, no one had devoted much attention to this part of the profession. In his broadside against lawyers, Derek Bok, then President of Harvard University and formerly dean of its law school, reserved his invective for litigators and the litigation process. Business lawyers captured the attention of very few critics; even on the unusual occasion when we were noticed, the criticism was at least funny. If the litigators got Shakespeare's incitement to legacide, we got Kurt Vonnegut. Some of you may remember Vonnegut's primer on the lawyer as transaction cost engineer, in which a popular law professor tells his students that to get ahead in the practice of law "a lawyer should be looking for situations where large amounts of money are about to change hands." Give Vonnegut credit - he saw the central importance of a transactional focus only a few years after Coase.
Francesca Jarosz, None of Your Business? No: Law Schools Need to Bring Their Business Law Teaching Up to Date, Bus. L. Today 35 (Sept.-Oct. 2006).
Constantine N. Katsoris, Securities Arbitration: A Clinical Experiment, 25 Fordham Urb. L.J. 193 (1998).
Disputes between the securities industry and its customers are generally resolved in arbitration, which is designed to be simpler, cheaper, and faster than courtroom litigation. Such arbitrations between brokers and customers have been held at the New York Stock Exchange since 1872. Thereafter, other securities industry self-regulatory organizations ("SROs") have also provided a forum for the arbitration of such disputes. However, before 1978, the various SROs had differing rules governing such arbitrations.
Kenneth N. Klee, Teaching Transactional Law, 27 Cal. Bankr. J. 295 (2004).
Patricia Hureston Lee, The Role and Impact of Clinical Programs on Entrepreneurship and Economic Growth (2011), available at http://ssrn.com/abstract=1853923.
: The author explores law clinical programs in the United States and their role and impact on entrepreneurship and economic growth. First, they provide a historical overview of clinical legal education, and set forth a timeline of major milestones and selected literature that describe the foundational period. With this as a background, we provide the context for the birth and growth of entrepreneurial transactional law clinics, which takes place during the period described by clinical scholars as the “third wave of clinical legal education.”
The authors then explore the data that provides details about the role and impact of clinical programs on entrepreneurship and economic growth. By reviewing websites, list-serves and selected literature of law schools through 2011, they offer insights on various traditional and entrepreneurial/transactional clinical programs nationwide; the numbers and breadth of traditional and entrepreneurial/transactional clinics; their geographic distribution; and actual programs by state. The information is assessed and the roles, impacts, implications and importance of such programs are discussed.
Jeffrey M. Lipshaw, Why the Law of Entrepreneurship Barely Matters, 31 W. New Eng. L. Rev. 701 (2009).
Abstract: Despite valiant (if nascent) efforts to show that law, or at least courts and doctrine, matters in the broader study of entrepreneurship, I am skeptical that it really does. The reason goes to the fundamental orientation to rules and their application of law and lawyers, on one hand, and entrepreneurs, on the other. As much as law students like rules, and social scientists like theories capable of prediction and algorithms and models, there are inherent philosophical (and perhaps psychological) problems with the interaction of the lawyer and the entrepreneur. In the same way that the relationship of law to moral intuition is perennially debated and no less frequently unresolved as between empiricists and rationalists, foundationalists and anti-foundationalists, the social context of rule-following for legal ordering is at odds with the entrepreneur's orientation to rules. In this Essay (which serves as an introduction to a longer work), I want to explore several themes. First, as the philosophers have shown, there is no rule for the application of a rule, and what we perceive as a given result is a matter of social congruence rather than a result inherent in the rule itself. The social and psychological orientation of those who create law, and those who create innovation, are at odds. Second, the predominant approaches to the science of law fail to account for the inherent paradox (or antinomy) of judgment. Third, the very nature of a legal or regulatory solution, by and large, is cognitive, and fails to address the non-cognitive aspects of entrepreneurship. Finally, there is a fundamental distinction between the definition of one's presently ascertainable rights in property, and private ordering to deal with future contingency. In the former, the law comes as close as it ever does to being constitutive; in the latter, what we say now is merely ammunition for instrumental use later.
Anthony J. Luppino, Minding More Than Our Own Business: Educating Entrepreneurial Lawyers Through Law School-Business School Collaborations, 30 W. New Eng. L. Rev. 151 (2007).
Abstract (from the introduction): This article reports on developments in the education of business-oriented law students at several U.S. law schools, explores law school-business school collaborations in particular, and offers suggestions that might be of value to others seeking to augment the training of would-be business lawyers through interdisciplinary initiatives. The discussion identifies challenges faced in designing and conducting a course taught jointly by law school and business school faculty to law, MBA, and engineering students. This article ultimately reaches the conclusion that the benefits to faculty and students of this type of collaboration far outweigh the costs of addressing those challenges.
Darhiana Mateo, When Theory Meets Practice: Tweaking Business Law Education, 15 Bus. L. Today 57 (Apr. 2006).
Mary Helen McNeal, Unbundling and Law School Clinics: Where's the Pedagogy?, 7 Clinical L. Rev. 341 (2001).
This article explores unbundling, also known as discrete task assistance and limited legal assistance, and the role it might play in a law school clinical program. After defining unbundled legal services, examples of which include pro se clinics, hotlines, and community education programs, the article outlines the advantages and disadvantages of such services offered on behalf of low-and moderate-income clients. The article then outlines the pedagogical disadvantages of providing unbundled legal services in law school clinics, which include limited skill development and the risk that law students will accept dual standards of representation for rich and poor clients. The article also outlines the pedagogical advantages of unbundled clinics, which include addressing the profession's resource allocation problem, experiencing ethical challenges, evaluating client results, exposure to alternative lawyer-client relationships, and the development of some lawyering skills. The article then utilizes a clinical and law student narrative to evaluate the merits of such clinics and their appropriateness for three hypothetical law students. Recognizing that some schools will incorporate unbundled clinics into their curriculum, the article concludes by describing a pedagogically sound unbundled clinic, with course components designed to overcome an unbundled clinic's limitations.
Alain Aime Ndedi, The Development of Ecopreneurship Education in South African Universities Curriculum (2011), available at http://ssrn.com/abstract=1799182.
or green entrepreneurship is the move by entrepreneurs to a sustainable business framework that is environmentally friendly by looking not only to make profit, but driven by their concern to make a world a better place. The ecopreneur is driven by the desire to protect the environment while achieving his entrepreneurial vision.
The current contribution explores how this move, the one of developing a curriculum that includes courses on green entrepreneurship could be achieved in the development of new minds driven not only by profit, by also by the desire to make our environment a better place to live.
George C. Nnona, Towards a Reformed Conception of Multidisciplinary Practice, 56 Clev. St. L. Rev. 533 (2008).
Abstract: Drawing out the deeper questions of pragmatism, professional autonomy, separation of powers and cultural legitimacy implicated in the subject, this article argues, contrary to the dominant academic opinion in the field, that the empirical underpinnings of multidisciplinary practice (MDP) are weak as are its theoretical justifications and overall compatibility with the policy imperatives of true professionalism. The Article is in a sense a response to the observation of the eminent scholar of the legal profession, Professor Charles Wolfram, that “shockingly little has been written in opposition to MDP.” See Charles Wolfram, ABA and MDPs: Context, History and Process, 84 Minn. L. Rev., 1625, 1626 nn.3-4 (2000). The Article critically examines and refutes the arguments deployed in support of MDP, a subject that has attracted much attention in recent times as manifest in the Sarbanes-Oxley Act of 2002, which addressed the issue primarily from the perspective of safeguarding the independence of the accountant. Unlike the Sarbanes-Oxley Act, however, this Article approaches the subject primarily from the perspective of safeguarding the lawyers’ independence and ancillary democratic values.
Karl S. Okamoto, Reputation and the Value of Lawyers, 74 Or. L. Rev. 15 (1995).
Abstract (from author):
What do business lawyers really do?" With this question, Professor Ronald Gilson opened his seminal discussion of the role business lawyers play in "creating value." He concluded that by serving as "transaction cost engineers," as architects of transactional structures that reduce the costs associated with uncertainty, business lawyers provide utility. From this theoretical perspective, Professor Gilson is then able to turn back to actual lawyers' work to explain its function in light of its contribution to the good of reducing transaction costs. My purpose here is to pose again much the same question. I wish also to proffer a theoretical perspective on the role business lawyers play in society and to use that conceptual lens to illuminate the structures that underlie lawyers' work and the organizations in which that work is done. Indeed, I find my theoretical insight among Gilson's examples of value creation by lawyers and his and Professor Mnookin's theories on the dynamics underlying law firm organization. But I have a greater ambition for my inquiry. I am looking for more than the economic value that is delivered in a business lawyer's service or the economic forces that explain law firm compensation schemes. I want to begin to look for the values that make business lawyers who they are and what they might become.
Richard W. Painter, Afterward: Contractarian and Cultural Perspectives on Value Creation By Business Lawyers, 74 Or. L. Rev. 327 (1995).
Abstract: “Value creation" by business lawyers can all too easily become a cliche. The phrase sounds more proactive than "negotiation," "drafting," or other conventional ways of describing what lawyers do, but a skeptic might say that "value creation" is little more than a euphemism that is convenient for lawyers who charge substantial fees. This symposium seeks to overcome such skepticism by bringing together lawyers, academics, and entrepreneurs to discuss examples of what business lawyers actually do to "create value" for their clients, how they create this value, and the broader social and ethical implications of lawyers' work.
Robert J. Rhee, The Madoff Scandal, Market Regulatory Failure and the Business Education of Lawyers, 35 J. Corp. L. 363 (2009).
Abstract: This essay suggests that a deficiency in legal education is a contributing cause of the regulatory failure. The most scandalous malfeasance of this new era, the Madoff Ponzi scheme, evinces the failure of improperly trained lawyers and regulators. It also calls into question whether the prevailing regulatory philosophy of disclosure is sufficient in a complex market. This essay answers an important question underlying these considerations: What can legal education do to better train business lawyers and regulators for a market that is becoming more complex? One answer, it suggests, is a simple one: law schools should teach a little more business and a little less law.
Mark A. Sargent, What Does It Take? Hallmarks of the Business Lawyer, 5 Bus. L. Today 11 (1996).
Dina Schlossberg, Promoting Justice Through Interdisciplinary Teaching, Practice, and Scholarship An Examination of Transactional Law Clinics and Interdisciplinary Education,11 Wash. U. J.L. & Pol'y 195 (2003).
The SBC's legal services and student education are worthy of merit. Yet the SBC might better serve its mission if the school were to redesign the SBC and integrate its legal services and educational opportunities with other academic programs or professional services. In my own experience as a transactional law attorney, I often collaborate with other professionals to work as a team in furthering the goals of my client. These collaborations have helped me to sharpen my skills as an attorney, and to sharpen my understanding of the ethical obligations of the profession, for in each collaboration, both the other professionals and my client critically evaluate my role. Further, this collaborative model serves clients well because the team members provide the needed professional services in a timely and coordinated fashion. Interdisciplinary or multi-professional collaborations are a common part of a transactional attorney's experience and therefore provide a valuable lesson to introduce in a clinic environment.
Steven L. Schwarcz, Explaining the Value of Transactional Lawyering, 12 Stan. J. L. Bus. & Fin. 486 (2007).
This article attempts to explain empirically the value that lawyers add when acting as counsel to parties in business transactions. Contrary to existing scholarship, which is based mostly on theory, this article shows that transactional lawyers add value primarily by reducing regulatory costs, thereby challenging the reigning models of transactional lawyers as "transaction cost engineers" and "reputational intermediaries." This new model not only helps inform contract theory but also reveals a profoundly different vision than those of existing models for the future of legal education and the profession.
Diane M. Sullivan, Egg-drop Exercise Revisited: An In-Class Entrepreneurship Exercise, 14 J. Entrepren. Educ. 49 (2011).
This article outlines a modification of the egg-drop exercise commonly used to teach engineering design and strategic choice. The variation of the exercise detailed focuses on relaying concepts relevant to entrepreneurship. The exercise can be used in undergraduate and MBA-level entrepreneurship courses. Specifically, student teams are tasked with developing new innovative "vehicles" that must meet target market value propositions. The project finale tasks students with dropping their vehicle, with raw egg in tow, from a second-story drop. The context of the exercise challenges students to "launch" their new venture in an emerging industry. Throughout the exercise, students are faced with a number of issues relevant to entrepreneurship. Concepts highlighted include customer value propositions, creativity, new venture team competencies, resource accumulation and management, bootstrapping, industry structures, competitive intelligence, and networking. This article details the exercise, provides instructions for employing it in the classroom, offers debriefing suggestions, and provides an illustration of the dominant product design. Results from surveys completed by both undergraduate and MBA students who completed the exercise suggest that desired teaching objectives are achieved and that the students perceive the exercise to be an innovative and engaging in-class project.
Gregory L. Volz, Keith W. Reeves & Erica Kaufman, Higher Education and Community Lawyering: Common Ground, Consensus, and Collaboration for Economic Justice, 2002 Wis. L. Rev. 505 (2002).
This collaborative process requires both public interest law institutions and higher education institutions to re-examine their missions and seriously evaluate the practical effect of their current work. Public interest law organizations should ask how long it has been since they examined community priorities, methods of legal practice and advocacy, and the effect of their services on the client community. Academic institutions should ask whether they fulfill their obligation to society for the privileged position they hold. John Dewey believed that "major advances in knowledge tend to occur when human beings consciously work to solve the central problems confronting their society." There are few problems in American society more destructive to our democracy than the desiccated urban environments that many of our citizens call home. A new synergy of public interest law organizations and academic institutions can provide the framework for successful collective solutions to poverty, and through such collaboration, enhance human knowledge and restore confidence in our democratic institutions.
MCLC (Massachusetts Continuing Legal Education), MCLE OnlineLibrary
PLENET (Public Legal Education Network), PLE Materials
Commentary, The Politics of Pro Bono, 52 UCLA L. Rev. 1 (2004).