Legal Commentary

Fiddling with my fall syllabi for my Securities Regulation and Agency, Partnership & LLC  classes this morning, and here's the current draft of the text on these subjects:

The use of laptop computers in class for things other than taking notes or looking at the statutes has consumed many electrons in the law school academic blogosphere and elsewhere.  (The University of Chicago Law School cut off its wireless access to classrooms.)  Consistent with my pedagogical philosophy generally, I think it is futile to stand in the way of the technology tsunami.  It?s also anachronistic and, honestly, beneath me to do anything so draconian as to force students to write instead of type (I work almost exclusively on a keyboard). I am going to work very, very hard to teach this complex material in a way that makes sense and highlights the theory and practice in a digestible way. I hope you use your electronic window to the world responsibly while in class. 

The only point about misuse of the Internet in class that has had much traction with me is its ability to distract others in the class who see what you are doing over your shoulder.  I would consider it well within the range of acceptable behavior to say politely ?would you mind not surfing where I can see it?  It?s really distracting.?  The nature of the response may tell you something about your classmate's future as an effective lawyer (at least in my view).

That brings me to a more general point about deportment. As far as I?m concerned, you are lawyers now. That means you are fully accountable to your classmates, yourselves, and me as adult members of the legal community. As you may have heard, I like to have a lot of fun in class (yes, I wore a costume to class on Halloween last year and sang a song about one of the cases to the tune of the Theme from the Beverly Hillbillies). But that doesn?t subtract from the overall seriousness (not solemnity) of the enterprise. I spent many years supervising lawyers as a partner in a law firm and as the general counsel of a large company. I don?t have much patience for the bureaucracy of enforcing compliance even with my own rules, like on-call and Internet-surfing; in my prior life, that behavior always struck me as infantilizing my colleagues. This is not the place for me to expound on my view that an internalized sense of duty and obligation is as much a civilizing influence as laws and regulation. If you need a more immediate incentive, however, I can tell you that what we say and do in class is a central part of what I test on, and you miss it at the peril of your own potential grade.

Talk about futility!  This is an example of "pragmatic idealism" (cf. Posner's pragmatic skepticism) which means that sometimes (but not always) you refuse to abandon reasoned moral conclusions even though you can justify, from others' misbehavior, your own conduct contrary to those conclusions.  A corollary is the "sucker conundrum."  Back in the late 1980s, when my law partners were claiming 90% of their cars for business use tax deductions even though they didn't have the required mileage records, I had to choose between compliance with the rule and being a sucker if I didn't do the same thing.  The consequence of being a sucker here is the possibility that there will be students who say, in effect, "stick your morality and your norms and your guilt trip someplace where the sun never shines; I'm paying for the education and I'll do what I want."   Yeah,  I know.  Been there, done that.