Academic journal article American University Business Law Review

Deal Deconstructions, Case Studies, and Case Simulations: Toward Practice Readiness with New Pedagogies in Teaching Business and Transactional Law

Academic journal article American University Business Law Review

Deal Deconstructions, Case Studies, and Case Simulations: Toward Practice Readiness with New Pedagogies in Teaching Business and Transactional Law

Article excerpt

Introduction

Striking an appropriate pedagogical balance in business law is challenging. The discipline is rich in doctrine and theory, and at the same time has incredibly significant practical application. In a traditional business associations, mergers and acquisitions, or securities law course, the professor barely has sufficient time to cover the basics. With such limited time, how do we help students better connect theory and practice to facilitate their development into practice-aware new lawyers?

In this short commentary, we explore the use of two interrelated pedagogical methods for teaching transactional and business law. The first method is deal deconstruction, which analyzes the set of final deal documents and outcomes. This method is backward-looking, conducting a post-mortem on business transactions and analyzing the parties' choices memorialized in the agreement against the legal and financial alternatives. The second method involves case studies and simulations, which are commonly seen in business schools. This method is forward-looking, exposing students to the uncertainties and situational contexts of doing deals and deal-related litigation. Together, these complementary methods help students understand the tradeoffs and dynamics of transactions and deal negotiations. They provide pedagogical alternatives to the traditional Langdellian method, which relies heavily on the study of edited appellate opinions. By presenting problems in different packages and from different temporal perspectives, these methods hone analytical, deal structuring, problem-solving, and decision-making skills.

I. The Need for New Pedagogy

Law schools today face enormous challenges. These challenges are well-known: fewer jobs for new graduates due to overcapacity in the legal market, high student debt levels due to high tuition costs, client demands for rationalization of professional services, high cost structure of law schools, and increased demand by the profession for "practice ready" graduates. These factors have prompted criticism of law schools, including criticisms of their curriculum.1

In response to these challenges, most law schools are considering, at least, programs and curricula that better bridge the training gap. We do not believe that better training in school is a silver bullet to the crisis as a whole, but we do believe that producing more "practice ready" graduates is helpful. Anecdotal evidence suggests that corporate clients are no longer willing to pay the fees for junior attorneys, which has historically been the way law firms trained their young lawyers.2 Law firms would have to bear this cost unless training can be further pushed down to law schools. As a result there is a heightened sense of responsibility on the part of most law schools to answer the call for greater "practice ready" graduates.

In the history of modem law schools, the bedrock pedagogical method- indeed the predominant method-in law schools has been the Langdellian case method.3 For many generations, law students learned the law (and presumably how to practice law) by reading edited appellate cases and engaging in an intellectual discussion through the Socratic method. This process trains students to "think like a lawyer" within the scale of large classrooms typically comprising 1L courses. Students read appellate cases in the common law tradition and other sources of law, such as statutes and regulations, decipher and distill the rule of law, and conceive the legal framework to analyze a particular legal issue.

The Langdellian method is a limited means of teaching problem-solving and transactional skills.4 To be clear, we are not suggesting that it ought to be displaced. It has and will have a prominent role in the training of law students, particularly in the 1L curriculum. The first step in becoming a lawyer is thinking like a lawyer, and this means that students must be able to analyze case law and statutes. …

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