Legal Skills Instruction Legal Resource Materials
Entrepreneurship Law Editorial Team
Constance E. Bagley & Craig E. Dauchy, The Entrepreneur’s Guide to Business Law (4th ed. 2011).
Abstract (from Amazon):
The updated 4th Edition of The Entrepreneur’s Guide to Business Law takes you through the various stages of starting a business--from start-up and growth to an initial public offering--while highlighting the legal preparations and pitfalls that go along with them. Packed with practical strategies for managing legal issues, the text presents the essentials on leaving your job, competing with a former employer, contract law, and bankruptcy, as well as on the most current issues like clean energy, e-commerce, and the effects of the recent recession on entrepreneurship.
Frank J. Cavico & Bahaudin Mujtaba, Business Law for the Entrepreneur and Manager (2nd ed. 2011).
Abstract (adapted from Amazon):
Business Law for the Entrepreneur and Manager introduces the reader to fundamental principles of the laws regulating business as well as their practical application in the United States. Chapters include: Introduction to law and the legal system; Torts and business; Products liability; Contract law; Sales law and the uniform commercial code; Agency and employment law; Business organizations; Commercial paper and banking transactions; Creditors and debtors- rights and responsibilities; Internet law; Intellectual property law; Real property law; International business law; Liability of accountants and other professionals; Wills and trusts; and Personal property, gifts, and bailment. This book may be used for courses such as "Business Law I" and "Business Law II" in undergraduate business curriculums.
Leo Paul Dana, World Encyclopedia of Entrepreneurship (2011).
This comprehensive reference work, written by some of the most eminent academics in the field, contains entries on numerous aspects of entrepreneurship. Topics covered include: business angels, Chinese clan entrepreneurship, criminal entrepreneurship, defining the entrepreneur, education, employee start-ups, entrepreneurship policy, ethics, ethnic minority entrepreneurship, family business, global entrepreneurship and trans-nationalism, indigenous entrepreneurship, international entrepreneurship, internationalization, involuntary entrepreneurship, Islam and entrepreneurship.
Daniel V. Davidson & Lynn M. Forsyth, The Entrepreneur’s Legal Companion (2011).
This work covers: hiring a lawyer to help protect the enterprise; avoiding litigation; selecting the proper business form; establishing and serving on boards of directors; operating through agents and officers; raising funds for the venture; avoiding torts and minimizing risks; supervising workers to reduce the risks; complying with employment laws; protecting the venture's name and reputation; protecting what makes the venture unique; minimizing and shifting risks through contract; obtaining insurance to protect the enterprise from risks; and identifying legal risks before they become legal problems.
Robert B. Dickie, FINANCIAL STATEMENT ANALYSIS AND BUSINESS VALUATION FOR THE PRACTICAL LAWYER. (2nd ed. 2006).
Abstract: Written expressly for business lawyers, this best-selling guide takes you step-by-step through the key principles of corporate finance and accounting. This Second Edition will update the title's content and provide additions to reflect post-Enron SEC and FASB rules and new rules regarding merger and acquisition accounting.
Franklin Gevurtz, Business Planning (4th ed. 2008).
The Fourth Edition includes chapters dealing with choice of business entity, and the formation of partnerships, limited partnerships, limited liability companies, and limited liability partnerships, which take into account the explosive growth in the use of these entities. Materials have been added reflecting developments in tax law and other amendments to the Internal Revenue Code. In addition, materials have been included reflecting the application of modern valuation techniques (the Capital Asset Pricing Model) in appraisal proceedings. This casebook provides detailed information on business planning. The casebook provides the tools for fast, easy, on-point research.
Robert W. Hamilton & Richard A. Booth, BUSINESS BASICS FOR LAW STUDENTS: ESSENTIAL CONCEPTS AND APPLICATIONS (4th ed. 2006).
Abstract (from publisher):
This book explains the mechanics, concepts, and legal context of business topics in exceptionally clear and accessible language. The book demystifies business principles through the combined skills of distinguished authors who draw on their teaching and writing experience to build student confidence, straightforward explanations of daunting topics (accounting, financial statements, taxes, mortgages, etc.) tailored to students without a business background, generous use of examples to convey ideas and applications, a helpful list of new terms in the appendix, conveniently keyed to the pages where they are used and explained, frequent use of visual aids, such as tax forms, financial quotes as they appear in the newspaper, tables, and graphs, an accessible design featuring lists of topics keyed to headings at the beginning of each chapter, key terms and concepts bolded for easy identification, and frequent use of lists to clearly enumerate points and examples.
Karen Thomas, Ultimate Book of Business and Legal Forms for Startups: 200+ Downloadable Forms and Spreadsheets (2010).
Assembled by a team of more than fifteen attorneys whose legal specialties apply to practically all aspects of starting, operating, and maintaining a business, this valuable resource delivers not only the necessary forms to launch a business, but everything from hiring and firing, conducting business online, to franchising--totaling more than 200 forms, all at your fingertips.
Rachel Arnow-Richman, Lisa Bliss, Sylvia B. Caley & Michael A. Woronoff, Teaching Transactional Skills in Upper-Level Doctrinal Courses: Three Exemplars, 9 Transactions 367 (2009).
Abstract (from authors):
Two interrelated problems have conspired here, both of which reflect the larger issue that is the theme of this conference. The first is the presupposition that employment law is primarily a litigation field. Certainly there is a great deal of employment litigation, particularly federal employment discrimination litigation, owing in part to the reforms wrought by the 1991 Civil Rights Act. But the last time I checked, there was a great deal of litigation between commercial and business entities as well. The distinction between litigation and transactional work is a distinction in skill not substance. Large law firms serving large corporate clients have structured themselves along these lines, with different groups of lawyers handling different types of work. But that is merely because such firms have historically had the work volume and resources necessary to sustain two legal departments offering two distinct skill sets. There is nothing inherently transactional or litigation-based about any particular area of substantive law. Indeed, employment law is a field in which lawyers use both sets of skills - we both make our beds and we lie in them. That is to say, management-side practitioners draft all kinds of written instruments - employment contracts, non-competes, severance and release agreements, and alternative dispute resolution agreements - as well as litigate the consequences of those agreements when they are breached. They are also involved in the development, drafting, and adoption of internal management policies, such as family/medical leave policies, nondiscrimination policies, and dispute resolution policies. In these ways, employment lawyers act much like business lawyers, drafting documents and counseling clients about how to advance their interests and manage risk. The second piece of the problem is the public law/private law divide that is felt so keenly among some faculties. This is a distinction of questionable substance that has been misapplied much as the transaction/litigation distinction has. I think that many faculties and curricula have, consciously or unconsciously, assigned employment law conceptually to the public law sphere, and I am not sure why that is. It may be due, once again, to the volume of civil rights-oriented litigation in the field, or to the prevalence of federal statutory law in the area. We in the field joke about the alphabet soup of employment law - the FLSA, the ADA, the ADEA, the FMLA, to name a few, many of which were enacted in the last quarter century. But if the workplace is heavily regulated, so too is everything else. That would include, for instance, securities trading, something that is obviously the core of the business or "transactional curriculum." We live in a regulatory state. Thus, the fact that something is regulated in some part cannot be the baseline by which we designate a field private or public.
Marlene E. Barken, Integrating Contract and Property Fundamentals with Negotiation Skills: A Teaching Methodology, 9 J. Legal Stud. Educ. 73-84 (1990).
Dominic Bencivenga, Learning Business Skills: Where Commercial Law Theory Meets Practice, 213 N. Y. L. J. 5 (1995).
Susan D. Bennett, Embracing the Ill-structured Problem in a Community Economic Development Clinic, 9 Clinical L. Rev. 45 (2002).
Abstract: The article asks whether the solving of complex problems can be taught as a learning strategy, or if learners can only expand this expertise through time and experience. For experts, the most important activities within the process of complex problem-solving are those that occur at the very beginning: those involved in defining the problem, or in “problem-finding.” These are steps that novices often presume to be obvious, rush through, or simply overlook. The article suggests that teachers focus on assisting their students (and on assisting their students to assist their clients) in taking great care with these first steps.
Lisa Bernstein, The Silicon Valley Lawyer as Transaction Cost Engineer? 74 Or. L. Rev. 239-255 (1995).
Abstract: This essay does not directly take issue with Suchman's conclusion that the image of the "lawyer as hired gun" does not accurately characterize the role of lawyers in the Silicon Valley. Indeed, the "hired gun" image is strikingly inappropriate in the transactional setting he focuses on in the most detail - high-technology venture capital financing. However, it suggests that the "hired gun" image is something of a straw man. The lawyer as "hired gun" may accurately characterize the role of business litigators - although in that context too the characterization is misleading in an era when most disputes are settled out of court and corporate use of alternative dispute resolution techniques is increasing dramatically. However, leaving litigators off to one side, the image of the lawyer as hired gun is not an accurate characterization of the role of any transactional business lawyer, at least any good transactional business lawyer, in the Silicon Valley or elsewhere.
Barbara Black, Establishing a Securities Arbitration Clinic: The Experience at Pace, 50 J. Legal Educ. 35-49 (2000).
Daniel B. Bogart, The Right Way to Teach Transactional Lawyers: Commercial Leasing and the Forgotten "Dirt Lawyer," 62 U. Pitt. L. Rev. 335 (2000).
Abstract (from author):
This Article proposes a basic strategy: the instructor should make a particular type of transaction, and the document or documents that form the basis of the transaction, the day-by-day foundation for a course. For example, at the outset of my Commercial Leasing course, I provide students with a copy of a sophisticated commercial office lease. The table of contents for the lease forms the basic syllabus for the course. I then assign textual materials that I have created and that discuss the leased "Premises," followed by "Term," then "Rent," and so on. Skills exercises similarly focus on lease provisions, in this same chronological order. By the end of the semester, students will have read, thought about and worked with all of the major provisions of the lease. This structure provides for an orderly presentation of substantive law, and one that is tied to the transaction that is the subject of the course. In addition, this order makes the incorporation of negotiations and drafting exercises easy and understandable to the teacher and students. Throughout the semester, students are confronted with fact sets and asked to draft, or modify the language of, commercial lease provisions. These exercises follow discussion and treatment of the substantive law governing that provision. As the semester advances, the students' store of knowledge in the substantive area and practice area grows, permitting wider ranging assignments. Perhaps the most important skills lesson that a student might learn in a course devoted to transactional practice is simply that good lawyers do not (and cannot) separate a knowledge of substantive law from successful practice skills. This lesson is particularly important to developing good negotiation skills in the transactional context. Students in my lease law course find first hand that the best transactional negotiators are those lawyers who fully grasp the substantive law.
William J. Carney, Preparing the Corporate Lawyer: Teaching Problems in Corporate Law: Making it Real, 34 Ga. L. Rev. 823 (2000).
Most of the time law professors think of the case method as the opposite pole from lecturing. While the case method has its virtues, I have an objection to its use that I have not seen in print before. Whether professors realize it or not, they are inculcating attitudes about the role of law when they teach students. I regard many appellate decisions as examples of the failure of private ordering. These failures, particularly those that relate to transactions, involve failures of either clients or their lawyers to specify fully the terms of relationships in various agreements. This creates either honest disagreements later on, or opportunistic behavior by one party who thought the terms were sufficiently ambiguous that he could get away with whatever he did that was objectionable. The message of these cases involves a failure of contract. Whether the reason for the failure is bounded rationality or high transaction costs of writing a fully specified contract does not really matter. This setting casts litigators and courts as the rescuers of innocent victims who are unable to protect themselves ex ante. The reality is otherwise. Millions of relationships are created and millions of agreements are written that are more or less peacefully and successfully performed. Lawyers play the role of "transaction cost engineers" to assure these successes. Too often students graduate without ever having seen this function.
Susan M. Chesler, Karen J. Sneddon, Elizabeth August & Mark Need, Teaching Multiple Skills in Drafting & Simulation Courses, 9 Transactions 221 (2009).
Abstract (from authors):
While most transactional drafting courses focus primarily on teaching students how to draft some very specific types of documents, we believe that these courses also present a unique opportunity to teach students a myriad of other skills.
Okolocha Chimezie Comfort & Okolocha Chizoba Bonaventure, Students’ Entrepreneurial Skill Acquisition through SIWES in Nigeria: An Analytical Approach, 3 Int’l J. Indep. Res. Stud. 97 (2012), available at http://ssrn.com/abstract=2159212.
Abstract (by authors): This study presents an analytical approach to students’ entrepreneurial skill acquisition through Students’ Industrial Work Experience Scheme (SIWES) in Anambra State, Nigeria. The study was guided by two research questions and two hypotheses. Mean and standard deviation were used to analyze data collected through a validated four point structured questionnaire. The null hypotheses were tested at 0.05 level of significance using ANOVA. Students rated SIWES as having positive impact on their academic achievements (entrepreneurship skill acquisition). However, students identified difficulty in securing placement for industrial training as the most pressing problem encountered prior to SIWES exercise. It was recommended among others that the SIWES coordinators at state and institutional levels should devise effective strategies for sourcing out places of placement on behalf of the students and post them to relevant industries that will match their fields of study which will help them to acquire practical skills.
Commentary, Clinical Legal Education and Community Development, 13 J. Affordable Hous. & Cmty. Dev. L. 208 (2005).
Commentary, Legal Pedagogy and Economic Justice, 17(3) Mgmt. Info. Exch. 48 (Summer 2003).
Don J. DeBenedictis, Learning by Doing, 76 A.B.A. J. 54 (1990).
Over the years, the movement to give law students hands-on experience has matured from haphazard and starry-eyed to demanding and thoughtful. It is at least as reflective and self-analytical as it tries to teach its students to be. And it is the pedagogical pioneer of any law school's curriculum, replete with video cameras, computers, psychological tests, mentoring systems and a half-dozen lively debates on method and purpose.
David M. Epstein et al., Simulations in Clinics, Contract Drafting, and Upper-Level Courses, 12 Transactions: Tenn. J. Bus. L. 55 (2011).
(adapted from article):
This article is a recap of a panel on simulation clinics in law school. The participants discussed the format of their classes, the course goals, and the activities in which students participated.
Linda Christine Fentiman, A Distance Education Primer: Lessons from My Life as a Dot.Edu Entrepreneur, 6 N.C. J. L & Tech. 41 (2004).
To date, few law schools have taken the plunge into distance education, although a handful have gotten wet toes. As the Director of the Health Law and Policy Program at Pace University Law School, I had the chance to swim in the deep end. I spent a two-year odyssey as a dot.edu entrepreneur, working with a group of dedicated colleagues to develop a distance learning initiative in health law. The Pace program was completely asynchronous, available via the Internet to lawyers, health care professionals, and law students, anytime of the day or night, anywhere the student had access to a computer and an Internet connection. In 2001, we launched the Pace Health Law Distance Education Program, beginning with two health law courses. The first course, Introduction to Health Law, provided a broad overview of the health law field. The second, Health Care Fraud and Abuse, offered an in-depth look at that important aspect of health law.
Victor Fleischer, Deals: Bringing Corporate Transactions into the Law School Classroom, 2002 Colum. Bus. L. Rev. 475.
The problem is that in modern practice, and especially in a corporate transactional practice, a lawyer's daily tasks demand an additional set of skills. Thinking like a law professor will not help you identify, evaluate and manage business risks, structure agreements, negotiate terms, and draft and re-draft the documentation for complex financial transactions. Smart, hard-working law students may happen to become great transactional lawyers. But their professional success is only an indirect product of their law school training. Indeed, a majority of law students graduate without having once analyzed a prospectus, negotiated a term sheet, drafted a complex agreement, or, for that matter, even once having read a commercial contract from beginning to end. This may help explain why so many junior associates feel battered and bruised after they begin working at an actual law firm.
James C. Freund, New Business Lawyers Need to Know How to Find the Deal: A Lawyer’s Perspective, 8 Bus. L. Today 32 (1999).
Daniel Friedson, An Access to Justice Case Study: A Practitioner’s Call for Leadership in Implementing Homeownership Legal Clinics and Equity Protection Partnership, 15 Roger Williams U. L. Rev. 499 (2010).
Abstract (from authors):
The pressure is on for law schools to teach more practical, professional skills to law students. Echoing this sentiment, an influential treatise, written in 1992 and updated in 2007 on best practices for legal education, commonly referred to as the “Carnegie Report,” emphasizes that law students need to be instructed in the professional arts such as courtroom or transactional negotiations. Additionally, the Carnegie Report places access to justice and seeking justice as two core values of the legal profession. Within this context, the housing crisis can be traced back, in part, to bad advice provided by non-lawyers in the non-profit sector. Another major cause of foreclosures and homeowners being forced into bad loans is the death of a family member who failed to leave an estate plan.
Robin S. Golden & Sameera Fazili, Raising the Roof: Addressing the Mortgage Foreclosure Crisis through a Collaboration between City Government and a Law School Clinic, 2 Alb. Gov't L. Rev. 29 (2009).
Abstract (from authors):
In New Haven, Mayor John DeStefano took a proactive approach when, in the fall of 2007, he called the Jerome N. Frank Legal Services Organization (LSO) at Yale Law School to ask for help in establishing a task force to collect data on the looming problem in New Haven and, ultimately, to recommend appropriate action steps. In collaboration with existing community organizations, the clinic made this issue a priority for its Community and Economic Development (CED) and Community Development Financial Institutions (CDFI) clinics for the 2007-2008 school year. The task force's recommendations resulted in The ROOF Project (Real Options, Overcoming Foreclosure), a comprehensive response to the mortgage foreclosure crisis in New Haven. This paper describes the trajectory of this collaborative effort to understand what lessons it might offer for addressing complex economic problems facing low and moderate income communities. In particular, the paper focuses on the potential for future collaborations between governmental entities and law school clinics. The authors believe that the combined resources and skills of proactive local governments and independent legal clinics hold great promise for developing and implementing solutions to complex community development issues. The authors also believe that such collaborations offer a rich new area for clinical education. Part I of this paper begins with a brief description of the mortgage foreclosure crisis, focusing on the ever-changing nature of the problem and the need, therefore, for a new approach to finding solutions. It then examines the efforts of the task force, initiated by Mayor DeStefano and led by the law school clinic and students, in collaboration with community leaders, as one possible model for a new problem-solving approach. Part II of the paper places this project in the evolving role of law school community and economic development clinics. We are interested in how partnerships with local government can introduce students to an expanded range of roles for lawyers, beyond the adversarial, client-centered assumptions than current community and economic (CED) work already does. Such partnerships can provide a partial response to recent critics that point to the failure of traditional CED projects to make lasting improvements in the economic lives of disadvantaged communities. We start the section with a short review of the goals and aspirations of CED clinic programs and how our mortgage foreclosure project fits into this history. These collaborations raise a whole new set of questions which we examine in depth, including: What does it mean for CED clinics to be collaborating with governmental actors who have so often represented obstacles to be moved in the process of realizing CED client outcomes? What does it mean for a law school clinic to begin a project without a single identified client and how does the clinic define its role outside of a formal client relationship? What kind of opportunities does this work present for clinical education? We conclude the paper by considering the implications of tackling the newest forms of economic injustice using collaborative efforts for identifying and meeting community needs. Are clinics more or less likely to meet the traditional goals of community involvement and empowerment through the use of collaboration? If, as we suggest, such collaborations may be required to help successfully identify and address complex "community-wide issues," how do we ensure that we are accountable to the community without a traditional client orientation?
Eric J. Gouvin et al., Interdisciplinary Transactional Courses, 12 Transactions 101 (2011).
In this article, several law professors discuss their roles in teaching law students how to successfully serve entrepreneurs as clients though transactional courses and programs that cross disciplines.
Eric J. Gouvin, Learning Business Law by Doing It: Real Transactions in Law School Clinics, 14 Bus. L. Today 53 (Oct. 2004).
Jill I. Gross & Ronald W. Filante, Developing a Law / Business Collaboration Through Pace’s Securities Arbitration Clinic, 11 Fordham J. Corp. & Fin. L. 57 (2005).
Abstract: This article details an interdisciplinary collaboration between the Securities Arbitration Clinic at Pace Law School ("SAC") and the graduate program at Pace University's Lubin School of Business, designed and initiated by the authors. The purpose of the collaboration is to provide a co-curricular learning experience to both J.D. and graduate business students while enhancing the pro bono legal services delivered by SAC to its clients. Part I of this article details the history of SAC before the authors initiated the collaboration, and the reasons SAC needed financial expertise. Part II of this article describes models of interdisciplinary collaboration, particularly between law and business degree programs, that the authors explored and considered before designing their own model. Part III explains the collaborative model adopted by SAC, and identifies the goals, benefits and limits of the chosen model. Finally, in Part IV, the authors offer guidance for other schools considering a similar collaboration. Part IV also illustrates how the authors' model meets the multiple needs of clients, law students and graduate business students.
Laurie Hauber, Symposium Article: Promoting Economic Justice Through Transactional Community-Centered Lawyering, 27 St. Louis U. Pub. L. Rev. 3 (2007).
Celeste Hammond, Borrowing from the B-Schools: the Legal Case Study as Course Materials for Transaction Oriented Elective Courses: A Response to the Challenges of the McCrate Report and the Carnegie Foundation for Advancement of Teaching Report on Legal Education, 11 Transactions 9 (2009).
Abstract (from author):
The author of this Article uses an existing business case study as the basis for developing a legal case study involving private real estate auctions to sell non-distressed real estate. This type of auction is in contrast with court conducted and supervised sales in conjunction with foreclosure, for example. The case study involves the decision of the debtor and its attorney, in collaboration with the creditors and their representatives, to seek and obtain the approval of a bankruptcy judge to dispose of the real estate assets of the bankrupt debtor, a national home builder, by means of an auction. "Auctioning United Homes Portfolio: A LEGAL Case Study" (the "United Homes Legal Case Study") provides a fascinating look at one response that may be an alternative to traditional ways of selling real estate, especially during the current real estate crisis.
Laurie Hauber, Symposium Article: Promoting Economic Justice Through Transactional Community-Centered Lawyering, 27 St. Louis U. Pub. L. Rev. 3 (2007).
Abstract (from author):
This Article examines the importance of community business development in achieving economic justice, focusing on the role of lawyers in representing those businesses. This Article makes the case that transactional pro bono programs that support community business development can be created in such a way to promote economic justice. To focus on economic justice, a transactional program must be community-centered rather than professional-centered. To be a community-centered program, this Article asserts that it is imperative a program is structured with the following three elements as its foundation: (i) a "holistic approach," (ii) "empowerment through knowledge," and (iii) "mechanisms of accountability." The basis for this assertion is the Economic Justice Project (EJP), a model project the author started in Boston in 2001. EJP is a pro bono project that provides legal assistance and education to entrepreneurs in historically disempowered neighborhoods in the Greater Boston area.
Luz E. Herrera, Training Lawyer-Entrepreneurs, 89 Denv. U. L. Rev. 887 (2012).
Abstract (adapted from author): The Great Recession has caused many new attorneys to question their decisions to go to law school. The highly publicized decline in employment opportunities for lawyers has called into question the value of obtaining a law degree. The tightening of the economy has diminished the availability of entry-level jobs for law graduates across employment sectors. Historically, most attorneys in the United States have created their own jobs by establishing solo and small law firms. The latest ABA market research indicates that about three-fourths of all attorneys work in private practice. Of those attorneys, almost half identify as solo practitioners and approximately 14% work in small law offices with five or less lawyers. In fact, the number of lawyers in private practice working in law firms of more than 50 attorneys has never accounted for even one-fifth of the private bar. Attorney demographics confirm that the majority of lawyers in private practice are self-employed. Regardless of the large number of lawyers in solo practice, few law graduates enter the profession understanding the opportunities and challenges of starting their own law firms. The reality of self-employment has not been well-received by many new graduates. Fewer opportunities in the job market have spawned blogs, editorials, articles and letters from and about angry and greatly disappointed new lawyers who viewed law school as their ticket to a six-figure salary upon graduation, but instead found poor job prospects and student debt equivalent to a home mortgage …The future of the legal profession is uncertain. The most consistent and largest employment sector for lawyers will continue to be solo practice. If the largest segment of our law students will eventually work for themselves, then law schools should provide direction about what it means to be a self-employed lawyer. Like their predecessors, the self-employed lawyer of the twenty-first century must learn how to think like a lawyer and find a niche within the business of law. However, to make a living in an increasingly complex and competitive legal market, self-employed lawyers must also become lawyer-entrepreneurs. This Article does not offer a comprehensive understanding of the study of entrepreneurship. Nor does it engage the discussion of the tension between professionalism standards and personal gain. Instead, this piece focuses on what law schools can do to help the thousands of self-employed lawyers who must embrace entrepreneurial models to survive in a competitive market.
Praveen Kosuri, “Impact” in 3D – Maximizing Impact Through Transactional Clinics, 18 Clinical L. Rev. 1 (2011).
Abstract (from author):
This article adopts the concept of "impact" used in the litigation clinic context and applies it to the transactional clinical setting. Ultimately, it challenges the transactional clinical community to take a broader view of impact and search for strategies to do more impactful work with its resources. It first describes transactional law and the current landscape of transactional clinical offerings in law schools today. It reveals that while there has been a proliferation of transactional clinics over the past ten years, the vast majority of those clinics have chosen to focus on transactional skills development. Those that engage in more systemic "impact" work do so as "traditional" Community Economic Development (CED) clinics, but even those clinics have focused on a narrow slice of impact work. Next, this article deconstructs the prevailing notion of traditional CED and encourages CED clinics to expand the type of work they do to include more small business and entrepreneur counseling. It also encourages small business and organizations clinics to adopt more overt impact strategies in order to leverage their current work to create greater societal impact. the article then introduces clinic design as an essential component of any impact strategy, arguing that impactful service should not come at the expense of students' educational experiences. The article describes a three-dimensional framework for clinic design that integrates service, skills training, and pedagogy to maximize clinical students' educational experience. Finally, the article describes the Entrepreneurship Legal Clinic (the "ELC") at the University of Pennsylvania Law School as an example for how one might begin to expand the conception of "impact" transactional work and the strengths and challenges that conception presents.
Praveen Kosuri, Daniel Jaffe, Jeff Leslie & James F. Hogg, You Too Can Create a Simulation Exercise (or Even a Course), 9 Transactions 101 (2009).
Stefan H. Krieger, The Effect of Clinical Education on Law Student Reasoning: An Empirical Study, 35 Wm. Mitchell L. Rev. 359 (2008).
Abstract (from author):
During the past thirty years, clinical legal education has become an important component of most law school curricula. In clinics, students, typically in their second or third year of law school, represent clients in actual cases in a legal aid office at the law school, pursuant to a court approved "student practice order." Under the supervision of faculty members, students interview and counsel clients, investigate facts, research legal rules, negotiate with opposing parties, draft documents, and try and argue cases in court. Proponents of clinical education have urged the development and expansion of clinical programs to train students in the skills necessary to apply legal doctrine in practice. While few have argued that the traditional law school curriculum be replaced with an entirely clinical curriculum, many have suggested the introduction of courses using clinical methods during the first year and increased clinical offerings in the last two years. Just recently, the Carnegie Foundation for the Advancement of Teaching published a major study of legal education lauding clinical education as one of "the law school's primary means of teaching students how to connect the abstract thinking formed by legal categories and procedures with fuller human contexts." And in the recent report, Best Practices for Legal Education, which professes to present a vision and road map for legal education, the authors argue that contextualized learning, such as clinical training, is the most effective and efficient way for students to develop professional competence.
Donald C. Langevoort, New Business Lawyers Need to Know How to Find the Deal: An Academic’s Perspective, 8 Bus. L. Today 33 (1999).
Jonathan C. Lipson, Doing Deals in School 15 Bus. L. Today 51 (Oct. 2005).
Laurie A. Lucas & Griffin T. Pivateau, Attorneys and Entrepreneurs: Creating Value for Small Business Startups, 18 Tex. Wesleyan L. Rev. 717 (2012).
Abstract (by authors): In the wake of one of the worst recessions in U.S. history, there is a renewed focus on entrepreneurship, innovation, and creativity as a way to reinvigorate the U.S. economy and create jobs. Law schools have been increasing their offerings of interdisciplinary courses focusing on entrepreneurship and law intent on educating “entrepreneurial attorneys.” The vast majority of American law schools offer joint JD/MBA degree programs … Business and law schools without an entrepreneurship center, or at least an association with one, now appear behind the curve as business-plan competitions nationwide offer college students and entrepreneurs access to significant amounts of capital for start-ups. These cultural and institutional changes offer potential opportunities to those attorneys who understand and can effectively anticipate the needs of the entrepreneurial organization.
Lisa T. McElroy & Christine N. Coughlin, Failure Is Not an Option: An Essay on What Legal Educators Can Learn from NASA’s Signature Pedagogies to Improve Student Outcomes, 75 J. Air L. & Com. 503 (2010).
Benjamin Means, Foreword: A Lens for Law and Entrepreneurship, 6 Ohio St. Entrepren. Bus. L.J. 1 (2011).
(adapted from author):
In this Foreword, the author affirms the value of legal scholarship concerning entrepreneurship but question whether law and entrepreneurship is a “field” in that it involves a “discrete factual setting [that] generates the need for distinctive legal solutions.” First, there is the problem of identifying the relevant factual setting-what is entrepreneurship? Perhaps entrepreneurship is simply the output of individual “entrepreneurs-people with the ideas, the vision, and the perseverance to launch . . . new businesses.” If so, then law and entrepreneurship concerns the legal needs of small, startup business ventures.... Instead of debating the boundaries of law and entrepreneurship as a field, the author uses the metaphor of a lens to contend that law and entrepreneurship should be understood more as a perspective than as a subject of inquiry. Law and entrepreneurship scholars need not restrict their focus to small-business creation and can explore how law and innovation relate in a wide variety of contexts.
Gary Munneke, Legal Skills for a Transforming Profession, 22 Pace L. Rev. 105 (2001).
The legal profession is undergoing dramatic changes that will drive a reformation in legal education. Legal educators must anticipate these changes to effectively prepare students for the practice of law in the twenty-first century. In order to be proficient practitioners, these students will require an expanded set of professional skills. Although the current legal skills paradigm was articulated by the American Bar Association MacCrate Task Force in 1991, it is time to reexamine legal skills with an eye toward preparing students to practice law in the new millennium.
Renee Newman Knake, Cultivating Learners Who Will Invent the Future of Law Practice: Some Thoughts on Educating Entrepreneurial and Innovative Lawyers (MSU Legal Studies, Research Paper No. 10 - 14, 2012), available at http://ssrn.com/abstract=2070246.
Abstract (adapted from author): The convergence of technological advances, global competition, and financial pressures facing the legal profession in the twenty-first century demands that students are equipped to be entrepreneurial and innovative in their pursuit of a rewarding and meaningful career in the law. Legal education prides itself in producing members of a learned profession. Legal educators face, however, a “time of drastic change” as Eric Hoffer might say where the “learned usually find themselves beautifully equipped to live in a world that no longer exists.” His observation calls us to cultivate “learners” who will invent the future of law practice, to borrow from Alan Kay’s observation that “to predict the future” one must “invent it.” In other words, schools need to educate entrepreneurial and innovative lawyers. This essay, drawn from the author's remarks delivered at the Ohio Northern Law Review’s Symposium on Perspectives and Distinctions on the Future of Legal Education, shares insights on why offering law students opportunities to engage in entrepreneurship and innovation is important.
Renee Newman Knake, Why Law Students Should Be Thinking about Entrepreneurship and Innovation in Legal Services (2012), available at http://ssrn.com/abstract=2221717.
Abstract (by author): One of the most pressing issues facing the profession in the 21st century is the "justice gap": millions of people who need legal representation cannot afford to access a lawyer …The legal profession faces a delivery problem - we have failed to develop sustainable models for delivering legal services that are affordable, accessible and, importantly, adopted by clients who utilize them on a regular basis. Meanwhile, thousands of lawyers are unemployed, and law schools continue to graduate new attorneys at record levels. For these attorneys, individuals in the gap represent an opportunity - an enormous untapped market. Thus the legal profession also faces a matching problem - we struggle to pair appropriately qualified lawyers with clients who need them. These delivery and matching problems are not new, but they have become particularly acute given the recent convergence of economic pressures, global competition, and technological advances. Law schools excel at producing legal experts, but the delivery and matching problems faced by the profession largely go ignored by legal education. Students are left to their own resources - the luckiest come to law school with a background in innovation and entrepreneurship … Our challenge is to create better delivery models that match appropriately qualified lawyers with the clients who need them. To find a solution, we need fuel to entrepreneurship and innovation in legal services. This short article, written at the invitation of Bloomberg Law, suggests several ways for law students and practitioners to do so.
Karl S. Okamoto, Learning and Learning-to-Learn By Doing: Simulating Corporate Practice in Law School 45 J. Legal Ed. 498 (1995).
Karl S. Okamoto, Teaching Transactional Lawyering, 1 Drexel L. Rev. 69 (2009).
Abstract: Law schools are giving more and more attention to transactional lawyering. Once relegated to a single course on "business planning," law school curriculums at every level of law school are being pushed to include a new focus on teaching future practitioners how to do deals. In doing so, law schools are discovering that the skills required to be a proficient transactional lawyer are often different from those needed by litigators or judges. Therefore the curriculum that teaches students how to "think like a lawyer" falls short when the goal becomes to teach them to "think like a deal lawyer." This article describes a novel transactional lawyering course designed to serve as the "keystone" course in a transactional lawyering curriculum.
Rebecca Sandefur & Jeffrey Selbin, The Clinic Effect, 16 Clinical L. Rev. 57 (2009).
Abstract: Lawyers, law professors and experts on professional education perennially proclaim that law schools teach students to think like lawyers but not to act like them. Legal education’s emphasis in the cognitive dimension comes at the expense of critical professional development in the skills (expertise) and civic (identity) dimensions. Clinical legal education has long been prescribed as a pedagogic corrective to these perceived deficits in law school training, but little research exists to inform our understanding of whether - much less how, when, why and for whom - clinics deliver on this promise. With data from a new, nationally representative survey of early-career attorneys in the United States, this Article explores evidence of clinical education’s impact in the skills and civic dimensions of lawyer training. In the skills dimension, new lawyers rate clinical training more highly for making the transition to the actual practice of law than many other law school experiences, particularly the doctrinal core frequently the object of the standard critique. In the civic dimension, the study finds no evidence of a relationship between clinical training experiences and new lawyers’ pro bono service, and no consistent evidence of a relationship between clinical training experiences and new lawyers’ civic participation. Although there is no evidence of a general relationship between clinical training experiences and public service employment, the study finds a strong relationship between clinical training and career choice for those young attorneys who recall that they came into law hoping to improve society or help individuals. For this group of new lawyers, clinical training may have been an important factor in sustaining or accelerating their original civic commitments. As a result of these findings and the continued dearth of data on these important questions, the Article concludes with a call for a new generation of research into the effects of clinical legal education on the preparation of students for the practice and profession of law.
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).
Abstract (from the introduction): This Article examines the notion of a transactional legal clinic designed around interdisciplinary education and service delivery. Part I explains why it is advantageous to both students and clients to design a transactional law clinic utilizing an interdisciplinary design. Part II explores the challenges involved in the creation and operation of such a clinical model. Part III describes examples of how other transactional law clinical programs explore interdisciplinary and integrative approaches in teaching and in serving clients. This Article neither criticizes the current model of transactional law clinical programs, nor champions a universal change in clinic design. Rather, this Article adds to the current body of literature on clinical education and critically examines the goals of teachers and lawyers who are engaged in the practice of transactional law.
Andrea Seielstad, Community Building as a Means of Teaching Creative, Cooperative, and Complex Problem Solving in Clinical Legal Education, 8 Clinical L. Rev. 445 (2002).
Abstract: Modern problem solving theory stresses the need for lawyers to look beyond clients' legal rights and interests, and consider methods and solutions beyond those offered by the formal mechanisms of the law. This article considers how education in creative problem solving can be enhanced in the clinical context through work with poor communities engaged in community building. It describes how the clinic at the University of Dayton Law School became involved in helping community groups in Dayton, and at the same time developed a method of clinical teaching that emphasizes broad-based problem solving in addition to traditional, more technical legal skills. This clinical program was designed to operate in conjunction with individual representation of poor people, rather than a stand-alone development clinic. It was also structured to function consistently with the school calendar and faculty research needs.
Tina L. Stark, Thinking Like a Deal Lawyer, 54 J. Legal Educ. 223 (2004).
Robert R. Statchen, Clinicians, Practitioners, and Scribes: Drafting Client Work Product in a Small Business Clinic, 56 N.Y.L. Sch. L. Rev. 233 (2011/2012).
(adapted from article):
The intended audience for this article is both SBC [Small Business Clinic] professors and students. For the professors, the goal is to encourage a discussion on best practices for drafting documents in transactional clinics, with recommendations serving as a starting point for critical review. For students, the goal is to highlight the importance of transactional drafting in their clinical experiences and explicitly state that the processes for this clinical teaching method are still evolving and will benefit greatly from their input on how the material is presented.
Clinicians With Not Enough to Do, Main (blog). http://kotplow.typepad.com/clinicians_with_not_enoug/
Emory University, Center for Transactional Law and Practice, Transactional Training Resource Guide.
Jeffrey M. Lipshaw, Why the Law of Entrepreneurship Barely Matters: Rules, Cognition, and the Antinomies of Transactional Practice
Anthony J. Luppino, Can Do: Training Lawyers to Be Effective Counselors to Entrepreneurs: Report to the Ewing Marion Kauffman Foundation (2008).
Resources, Entrepreneurship Law Center: Bluhm Legal Clinic, Northwestern Law School, http://www.law.northwestern.edu/legalclinic/elc/resources/
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