Sunday, July 06, 2014
A Football Epiphany About Teaching Transactional Complexity
As the author of the preceding post under my name noted, in recognition of the significant birthday constituting the forty-seventh anniversary of my bar mitzvah, my wife took me up on one of my long-time fantasies and enrolled me in the men's football camp at the University of Michigan. (Note: for those concerned about gender equality, the men's camp, raising money for prostate cancer research, had 73 participants. The women's camp, raising money for breast cancer research, and which followed two days later, had over 500 participants.)
It turned out the most significant aspect of the experience was not my completing a pass in Michigan Stadium while wearing a boot on account of the ruptured achilles tendon incurred in the third drill.
No, as discussed following the break, it was the "aha" moment about my own teaching of transactional complexity that occurred in the first "team meeting."
My upper level classes include securities regulation, unincorporated business entities, and a new course this coming semester entitled "Entrepreneurship, Venture Capital, and the Law." One of the skills I try to introduce to students is the unraveling of transactional complexity. Hence, we spend a lot of time not just on the doctrine, but also digging deeply into cases where even understanding the facts takes a fair amount of sophistication. The diagram at left, for example, is the structure of the recent Achaian case in Delaware Chancery, dealing with management issues within an LLC.
And I advise students that the exam will require they unravel transactional complexity before getting to the doctrinal issues. Hence, at right is a graphic example of a deal structure that underlies the narrative in an old exam. But notwithstanding what I do in class and my advice to students about what they will need to do to prepare, I am invariably disappointed, by and large, with that aspect of their performance on the exam.
But I learned something about dealing with that in, of all things, the football meeting in Ann Arbor.
As we concluded our brief tour of the facilities and filed into the team meeting room, the coaches handed us a "playbook," a three-ring binder with about two dozen pages of diagrams of offensive and defensive formations. You will have to take my word (heaven knows there are readers loyal to the Team Whose Mascot is a Hairless Nut) that even that chunk of information, itself only a fraction of what the football players themselves need to know, was overwhelming on first glance. For the offense, there was a full page of procedures for the huddle, a page on offensive personnel combinations (i.e., the number of running backs, tight ends, and/or wide receivers that would be on the field), four different formations for each combination, two dense pages of general offensive terminology, a page each for passing, running, and "play action" (i.e., faking a run and then passing) terminology, then diagrams of eight different plays. The section of the book on defense was equally detailed.
So when you are playing, you need to have all of this processed and you don't have time to think about it. When the coach calls "11 doubles LT 3 jet comebacks," you have to know immediately what it is you are supposed to do and then go do it.
As I said, I was impressed with the complexity, and overwhelmed by the idea that I was going to have to absorb this before we took the field the next day. No doubt my/our level of absorption would have been as disappointing to the football coaches (if this were serious) as mine in my students' internalizing of transactional complexity.
I spoke to Brady Hoke, the head coach, about this aspect of teaching. The answer is that it is indeed complex and a teacher (whether football coach or law professor) cannot expect that the students (whether football players or lawyers-in-training) will perform well without practice, and in particular repetitions under which the skills become second nature. And I am pretty sure he liked the fact that I, a law professor, had just learned something about teaching from a football coach.
My epiphany was that there is no other experience in law school that teaches that unraveling skill. While I am not springing anything on the students that they haven't been "taught," all of my interim methods of evaluation (e.g., practice questions at the end of each topical unit) focus on the doctrine rather than the complexity itself.
So next year, I will add regular exercises in unraveling narratives in my transactional courses. The point of the exercises will not be to solve the doctrinal problem, but merely to be able to diagram, for example, the corporate and subsidiary relationships, who the members, shareholders, or partners are, or what is being exchanged for what in the transaction at issue. I suspect a salutary effect, when we finally get to the exam, will be measurably fewer instances of partnerships being mistaken for LLCs, limited partners being mistaken for shareholders, fiduciary duties being imposed where not applicable, and more of the subtle doctrinal issues being spotted.
Posted by Jeff Lipshaw on July 6, 2014 at 08:37 AM | Permalink
I deal with this a bit in Civ Pro in showing how the different joinder rules fit together, again by diagramming a complex multi-party/multi-claim suit. The arrows flying around look a lot like a football play.
Posted by: Howard Wasserman | Jul 6, 2014 9:38:32 AM
Thank you for your detail. Your description explains why I HATE when people suggest that football players are stupid. More likely, they simply have not been academically supported as needed.
Posted by: Darrell Jackson | Jul 6, 2014 7:44:05 PM
Sorry about the tendon injury, but glad for this post, Jeff.
I sometimes put the dry erase marker into students' hands to ask them to diagram the facts, and in my Corporate Finance course (taught as a planning and drafting seminar), I make the students teach me and their peers a few cases (including the transactional background, which is what Corporate Finance, as a multidisciplinary adventure is all about). But I plan on adding more engagements that enable "unraveling," especially in Business Associations and Securities Regulation, after reading this post.
Posted by: Joan Heminway | Jul 8, 2014 12:54:23 AM
Thanks, Joan. I should add that like you, I practiced for a long time, and it became second nature to diagram corporate and deal structures if for no other reason than to be able to explain to clients and business colleagues what was going on.
Posted by: Jeff Lipshaw | Jul 8, 2014 7:48:36 AM