My essay, “Mr Toad’s Wild Ride: Business Deregulation in the Trump Era,” was recently published by the Mercer Law Review as part of a volume featuring works from a recent symposium on “Corporate Law in the Trump Era.”  The symposium was held back in October and resulted from ideas shared at a discussion group on “Corporate and Financial Reform in the Trump Administration” convened for the 2017 Southeastern Association of Law Schools conference.  A portion of the introduction explaining the overall nature of the essay follows (footnote reference omitted).

This Essay identifies and takes stock of the Trump Administration’s deregulatory efforts as they impact business interests, with the thought that even incomplete or biased information may be useful to transactional business lawyering. What of significance has been done to date? With what articulated policy goals, if any? How may—or how should—the success of the administration’s business deregulatory plans and programs be judged? What observations can be made about those successes? For example, who may win and lose in the revised regulatory framework that may emerge? The Essay approaches these questions from a transactional business law perspective and offers related observations. Spoiler Alert: to date, the deregulatory journey is characterized by haphazardness not unlike the motorcar experience that is the subject of the beloved Disneyland attraction, Mr. Toad’s Wild Ride—a joyride that includes surprises and may sometimes feel like it is taking us “merrily, merrily, merrily, merrily, merrily on our way to nowhere in particular!”

This is the second essay in a pair that I wrote over the past year on deregulation and the presidency.  I posted on the first essay here, with a bit of information about the project as a whole (which had its genesis in BLPB posts by Anne Tucker and me).*  I also posted on this project back in September, here.  Thanks to those of you who responded with ideas in the comments and in private messages in response to these earlier posts.  

Although not all of those comments made it into my work implicitly or explicitly, they were nevertheless helpful as I researched and thought through my theses on these two short reflective pieces.  I do have many more ideas relating to this topic.  No doubt those ideas–and some of yours–will find their way into other work as time moves on.

_____

* In reviewing my prior posts for this post, I noted that the text of  this post has the year of the Southeastern Association of Law Schools discussion group wrong.  It did, in fact, occur in 2017, and it therefore preceded the Association of American Law Schools conference discussion group referenced in the post.  I left a postscript on that page, but I wanted to clarify the matter here also.

Rivers

On Sunday morning, Rivers Lynch, a beloved member of my wife’s side of our family, died suddenly of natural causes. Rivers spent his professional life as an educator – over four decades as a teacher, an administrator, a driving instructor, and a coach of various sports. In 2007, he was inducted into the South Carolina Athletics Coaches Association Hall of Fame for his many successful seasons as a tennis coach, including 11 state championships. Even this year, at the age of 72, he continued to coach the Myrtle Beach High School tennis team.  

The outpouring of support on social media has been incredible to witness. Rivers, quite literally, positively affected the lives of thousands of students, colleagues, neighbors, and family members. A few of the countless posts include words like: “I’ve yet to meet anyone so kind and caring.” “Every single person was special to him.” “Truly humble…always greeting me with a smile and making me feel welcome.” “The truest most genuine person I’ve ever had the honor to know.” “A father like figure to all of us.” “A beautiful soul…that smile always brightened my day.” “Touched so many lives.” “Always championed students who were ‘underdogs.’” “My favorite teacher.” “The hero most of us didn’t deserve.”

How did Rivers make such a positive difference in the lives of so many people?

Three interrelated things spring to mind. A Genuine Smile. The headline for Myrtle Beach Online noted what so many people remember about Rivers – that he was “always smiling.” I can’t remember Rivers without his ear to ear smile that absolutely lit up every room he entered. Focused on Others. Rivers won numerous awards as an educator, but he always turned the attention to the success of others. He had well over 3000 Facebook friends (and many more in-real-life-friends), and he constantly celebrated the achievements of his students, colleagues, and family members. He was truly interested in the details of your life, had a remarkable memory for past conversations, and was always fully present. Relentlessly Positive. Rivers was an optimist. While I heard that he could be tough as a coach when the time called for it, he preferred to uplift. Sadly, at least one study shows that pessimism pays in the study of law, but Rivers’ approach to life always reminded me of the deeper benefits of focusing on the positive.

On June 22, 2010, I met Rivers for the first time. On that day, I drove from Charleston to North Myrtle Beach to meet my girlfriend’s extended family. I already knew Katie was the woman I wanted to marry, but I was a bit intimidated at the thought of walking into their family reunion at Rivers’ home. I convinced my youngest brother Sam to join me for support, and we stopped at an outlet mall where we bought him a respectable, collared shirt for the occasion. As I approached Rivers’ front door, I started to sweat even more than typical in the South Carolina summer heat. But, as soon as Rivers opened the door–beaming and offering some spectacular lemonade–I instantly felt welcomed. I remarked to my now mother-in-law that in just a few hours Rivers made me feel like his best friend. Reading over the Facebook comments again, it seems like Rivers made a lot of people feel that way, and he somehow managed to uplift thousands of people in a completely authentic manner.

I cannot fully explain how Rivers positively affected so many people during his time as an educator, but his life reminds me of the power of a genuine smile, the strength of selflessness, and the benefits of an optimist outlook. 

I’ve begun expanding my interest in the dispute resolution area to include research (I’ve been a practitioner and teacher). Along with my OU legal studies colleague, Professor Dan Ostas, I’m currently working on an arbitration article (readers, however, should take this post as expressing my views, and not necessarily his).  So, when the U.S. Supreme Court decided Lamps Plus, Inc., et al. v Frank Varela this past Wednesday, I immediately had some careful reading to do.           

Frank Varela was one of many Lamps Plus employees who upon beginning their employment with the company had signed an arbitration agreement and, as a result of a data breach, had had his tax information stolen.  After Varela’s information was used to file a false tax return, he filed a class action suit against Lamps Plus in a Federal District Court in California.  Lamps Plus motioned to compel bilateral arbitration, and to dismiss the suit.  The District Court dismissed Varela’s claims, ordered arbitration, and authorized it to proceed on a classwide basis.  Lamps Plus appealed.  The Ninth Circuit Court of Appeals affirmed (with one judge dissenting).  No language in the arbitration agreement explicitly addressed classwide procedures.  Nevertheless, the Ninth Circuit viewed the agreement as ambiguous because it argued that various phrases in the agreement could support both perspectives.  California, like most states, construes ambiguous contractual language against the drafter (Lamps Plus), especially in the case of adhesion contracts.  Therefore, the Ninth Circuit held that Varela’s interpretation prevailed, meaning that the arbitration could proceed on a classwide basis.  In a 5-4 decision, the U.S. Supreme Court (Court) reversed.            

The Court considered “whether the FAA …bars an order requiring class arbitration when an agreement is not silent, but rather ‘ambiguous’ about the availability of such arbitration.”  The Opinion of the Court (written by Roberts, C.J. and joined by Thomas, Alito, Gorsuch, and Kavanaugh, J.J.) held that just as Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp held that a court cannot compel classwide arbitration when an arbitration agreement is silent on the issue, it also may not do so when an arbitration agreement is ambiguous on the issue.  The Court’s opinion did not state whether it found the agreement to be ambiguous, but rather deferred to and accepted the Ninth Circuit’s determination (note: the Court’s opinion initially addressed jurisdiction.)  The Court reiterated that classwide arbitration is importantly distinct from traditional, individual arbitration and “undermines the most important benefits of that familiar form of arbitration” such as informality, speed, economy; “introduce[s] new risks and costs for both sides,” (quoting Epic Systems Corp. v. Lewis) particularly for the defendant; and creates significant due process issues.  Therefore, “[t]he… [FAA] requires more than ambiguity to ensure that the parties actually agreed to arbitrate on a classwide basis.”  Citing Stolt-Nielsen, the Court emphasized that the FAA made arbitration “a matter of consent, not coercion,” and that arbitrators only have the authority that the parties have agreed to give them.  Hence, to the extent that a state law contract interpretation rule – such as construing ambiguous contract language against the drafter – thwarts implementation of the purposes and objectives of the FAA, it is preempted. 

Justice Thomas also filed a concurring opinion.  Dissenting opinions were filed by Justices Sotomayor, Ginsburg, Kagan, and Breyer (the authors also joined other dissents).  

I’m new to this area of research and my views are developing.  Thus far, I agree that classwide arbitration is materially distinct from individual arbitration.  As a practical matter, I would think that unless parties had explicitly agreed to such procedures, widespread authorization of classwide arbitration would dramatically decrease the use of arbitration.  I don’t think this would necessarily always be helpful for employees or consumers, though in certain cases it likely would be.  I also agree with the Court’s judgment itself because the arbitration provision did not seem ambiguous to me, but rather silent regarding classwide arbitration (a point in the concurrence).  At the same time, I also agree with several points made in three of the dissents. 

However, for now, if you’re interested in a more comprehensive explanation of and argument for my views on arbitration, you’ll have to wait for (and then read) my future scholarship in this area.  In the meantime, I’d love for readers who disagree with the perspective that classwide arbitration is importantly different from individual arbitration to share why and/or recommend helpful reading materials.        

 

Last year, I had the privilege of participating in ILEP’s 24th Annual Symposium, Deconstructing the Regulatory State, where I served as a discussant on papers presented by Jill Fisch and Hillary Sale regarding the role of disclosure in the securities regulatory landscape.  Those papers, Making Sustainability Disclosure Sustainable and Disclosure’s Purpose have now been published by the Georgetown Law Journal. 

Georgetown has also published my remarks on the two papers as part of their online series.  The title for my commentary is Mixed Company: The Audience for Sustainability Disclosure, and there’s no formal abstract, but this is the introduction:

In their symposium articles, Professors Sale and Fisch offer mirror-image visions of the role of mandated disclosure. Professor Sale addresses information that is typically relevant to an investing audience and recognizes its importance to the wider public. Professor Fisch, by contrast, addresses information that is most relevant to a noninvestor audience but only contemplates its importance to corporate financial performance. The gulf between their approaches highlights one of the significant tensions in our system of securities regulation: the distance between its intended purpose and its current function.

Close readers of this blog will recognize that my comments follow a theme that I’ve frequently visited in this space, namely, the need for a corporate disclosure system that is not centered on investors.  I’m actually working on a much longer article on this topic where I explore these ideas in depth, but for those who are interested, the elevator-pitch version is now available at Georgetown Law Journal Online.

After soliciting initial comments, New Jersey has issued its draft fiduciary regulation.  The draft proposal makes clear that financial advisers will have duties of care and loyalty to clients and that mere disclosure may not be sufficient to satisfy the duty of loyalty.  This matters because many registered investment advisers now attempt to satisfy their fiduciary duties simply by disclosing conflicts and instances where they will act against client interests.

Consider the SEC’s recent share class disclosure settlement.  Firms had been steering client assets into more expensive share classes because those classes paid the firms more money than less expensive share classes.  The SEC deemed these practices “fair” so long as they were disclosed to clients:

“An adviser’s failure to disclose these types of financial conflicts of interest harms retail investors by unfairly exposing them to fees that chip away at the value of their investments,” said Stephanie Avakian, co-director of the SEC’s enforcement division.

The words “unfairly exposed” strain under their burden there.  It’s an odd notion of fairness which allows a fiduciary to fleece clients so long as some document contains the disclosure.  

New Jersey now looks to take a different approach.  Although disclosure makes sense for many securities law issues, it fails to meaningfully protect investors in their relationships with financial advisers.  Vast swaths of the public are financially illiterate.  They need help because they don’t understand markets, portfolio allocation strategies, how fees impact portfolios over time, and a host of other issues.  People hire advisers because they want someone else to think about and handle these issues.  

Prof. Justin Pace, Haworth College of Business,  Western Michigan University recently sent me his paper, Rogue Corporations: Unlawful Corporate Conduct and Fiduciary Duty. In it, he discusses Delaware’s “per se doctrine where the board directs the corporation to violate the law. A knowing violation of positive law is bad faith, which falls under the duty of loyalty. The business judgment rule will not apply and exculpation will not be available under Section 102(b)(7). The shareholders may not even need to show harm.” 

In the paper, he considers this concept from a moral and ethical perspective, which are interesting in their own right, though I remain more interested in the doctrine itself.  The paper is worth a look.  A few comments of my own, after the abstract:

Abstract

On February 28, 2018, Dick’s Sporting Goods announced that it would no longer sell long guns to 18- to 20-year-olds. On March 8, 2018, Dick’s was sued for violating the Michigan Elliott-Larsen Civil Rights Act, which prohibits discrimination on the basis of age in public accommodations. Dick’s and Walmart were also sued for violating Oregon’s ban on age discrimination. In addition to corporate liability under various state civil rights acts, directors of Dick’s and Walmart face the threat of suit for breaching their fiduciary duties—suits that may be much harder to defend than the more usual breach of fiduciary duty suit.

Delaware corporation law appears to have an underappreciated per se doctrine where the board directs the corporation to violate the law. A knowing violation of positive law is bad faith, which falls under the duty of loyalty. The business judgment rule will not apply and exculpation will not be available under Section 102(b)(7). The shareholders may not even need to show harm.

This paper examines the relevant legal doctrine but also takes a step back to consider what the rule should be from an ethical and a moral standpoint. To do so, rather than apply traditional corporate governance arguments, this paper considers broader moral theories. In addition to the utilitarian calculus that is so ubiquitous in corporate governance scholarship via the law and economics movement, this paper considers the liberalism of both John Rawls and Robert Nozick. But liberalism may seem less persuasive given the rise of illiberalism politically on both the American right and left. Given that, this paper also considers two non-liberal models: one a populist modification of Charles Taylor’s democratic communitarianism and the other Catholic Social Thought.

Unsurprisingly, the proper rule depends on which moral theory is applied. If that theory is liberalism (of either form covered), then a per se approach is troubling. Harm to the corporation must be shown, and either the Delaware legislature or the corporate players, depending on the form of liberalism, must acquiesce to a per se rule. Counterintuitively, it is the per se rule that runs counter to basic democratic norms. It gives the power to litigate in response to harm not to the party harmed but to a third party. Given the divergent results from applying different moral theories, and given the democratic difficulty, the Delaware legislature should clarify the standard. It will likely find that a harsh, per se standard is unjustified.

First, I have always thought that some people read DGCL § 102(b)(7) too literally (or at least broadly).  The statute reads:

(b) In addition to the matters required to be set forth in the certificate of incorporation by subsection (a) of this section, the certificate of incorporation may also contain any or all of the following matters: 

. . . .

(7) A provision eliminating or limiting the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, provided that such provision shall not eliminate or limit the liability of a director:  (i) For any breach of the director’s duty of loyalty to the corporation or its stockholders;  (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law;  (iii) under § 174 of this title;  or (iv) for any transaction from which the director derived an improper personal benefit.  No such provision shall eliminate or limit the liability of a director for any act or omission occurring prior to the date when such provision becomes effective.  All references in this paragraph to a director shall also be deemed to refer to such other person or persons, if any, who, pursuant to a provision of the certificate of incorporation in accordance with § 141(a)of this title, exercise or perform any of the powers or duties otherwise conferred or imposed upon the board of directors by this title.

I have never been one to believe that directors face potential liability for any type of “knowing violation of law.”  Anyone who has seen a UPS or FedEx truck in New York City knows that the drivers knowingly park illegally and risk tickets (which they often get) for doing the job. It is a cost of doing business, and I find it hard to believe any court would hold directors liable for such a thing, though directors certainly know (or should) of the practice. That would make for one of the most absurd Caremark-like cases ever, in my view.

Prof. Pace argues in his paper:

A per se standard might prove lucrative. It opens up liability for losses normally insulated by business judgment rule. If Nike loses market share because it made Colin Kaepernick the face of a large marketing campaign, shareholders cannot successfully sue because that decision is protected by the business judgment rule. But if Dick’s Sporting Goods loses market share because it stops selling long guns to 18- to 20-year-olds, shareholders presumably can sue and recover based on that market share, even though civil liability for violating state bars on age discrimination may be negligible.

Perhaps, but I would still think that most courts would likely work around this. First, I think a court could easily calculate damages as the modest civil liability incurred, not the lost market share.  Second, in Dick’s Sporting Goods situation, as I observed elsewhere, “it is worth noting that Dick’s sales dropped, but profits rose after the decision because the company cut costs by replacing some guns with higher-margin items.” If there is no harm, is there a foul? Or maybe better said, it is possible that there is no director liability unless one can show actual harm. 

I will concede that DGCL § 102(b)(7) likely eliminates business judgment rule protection for directors where one can show a knowing violation of the law. However, getting past the business judgment rule does not automatically lead to liability.  It simply allows the court to review the board’s decision, but the plaintiff still must show harm. And I am not at all sure one can show harm in the Dick’s gun sales circumstance. It is, in my view, entirely fair. I also gather that I am may be in the minority on this one.  But a good conversation, either way.  

Co-blogger Ann Lipton has posted a number of times on Elon Musk’s Twitter disclosures and their potential legal significance.  I chimed in once.  Unless I am mistaken, her most recent post (citing to our prior posts) on this subject is here.  Based on these posts, we both seem to understand that the Twitter Era has spawned some interesting disclosure-related legal questions.

I had these posts in the back of my mind when I got an email invitation yesterday from IPO Docs, a firm that sells “Regulation D Private Placement Memorandum Templates” to check into the firm’s services.  I have never been a fan of online templates or form documents as drafting precedent, especially for investment disclosure documents.  In general, one-size-fits-all disclosure lawyering is just too far from my practice background (which involved reverse-engineering the work of my Skadden colleagues and others).  But I do tell students they should be familiar with these kinds of form/exemplar resources and that, after determining the quality and suitability of a resource for their purposes, they may want to use form documents as a cross-check for contents or phrasing.

These two examples of Internet-related disclosures (online commentary and disclosure forms) are two pieces of a larger disclosure regulation puzzle.  The puzzle?  How best to address challenges to disclosure regulation posed by our increased use of and reliance on the Internet.  Believe me; I am a fan of the Internet.  But having been engaged with disclosure regulation pre-Internet and post-Internet, I do see challenges.

Social media and blog posts or commentary, for example, raise issues about the nature of the speech and the identity of the speaker.  Are tweets made by firm managers disclosures of firm information or are they private statements?  Who is the person behind a social media or weblog account commenting on business affairs?  (I note that Ann’s September 29, 2018 post on the Musk affair reports, based on information in the SEC’s complaint, that analysts “privately contacted Tesla’s head of investor relations for more information and were assured that the tweet was legit.”  And many may remember the dust-up–almost twelve years ago–around John Mackey’s “anonymous” online posts.)

To the extent that we come to accept, from a disclosure compliance standpoint, business disclosures that are made through fractured online posts and commentary, we lose the benefits of standardization–including easy comparability–that comes from the traditional periodic and transaction-based disclosure regimes built into the Securities Act of 1933 and Securities Exchange Act of 1934.  While I understand the virtues of allowing for more customized business disclosures in certain circumstances (e.g., for Form S-8 registration statements, where a summary plan description geared to benefit-holders fulfills key prospectus disclosure requirements), should we be encouraging or mandating that investors of all kinds comb the Internet to find scraps of information to enable them to get comparable data?  (Of course, many investors do perform Internet searches, regardless.  But mandatory disclosure documents are the core elements of compliance, and they allow for relatively direct comparisons.)

What about disclosure challenges relating to Internet-available offering documents?  I admit that I have less concern here if these documents are purchased and used by a competent lawyer.  But I fear that will not be the dominant scenario.

In my view, a significant peril with disclosure templates is that people using them as drafting models may not be competent or skilled in their use.  Specifically, form end-users may not understand (or even consult) the legal rules relating to disclosures required to be made by a firm seeking capital under applicable federal and state securities law registration exemption(s).  The interpretation and interaction of some of these rules–and the preservation of arguments and remedies if an exemption is later found to be unavailable–can be complex.  It is too easy to use template text without questioning it.

Moreover, Internet forms may lull businesses into thinking they have met all attendant legal requirements relating to a financing transaction for which a form document has been purchased.  In a private placement, the existence of an accurate and complete disclosure document is but one of many legal compliance issues.  Private placements exempt under Regulation D have a number of moving parts, disclosure being only one.

I feel very “old school” in writing this post.  What are your views on these and other issues relevant to business disclosures made on or facilitated by the Internet?  As a person who has been known to describe herself as a “disclosure lawyer,” I would appreciate any ideas you may have.  And tell me where I am wrong in the observations I make here.

It’s no secret to anyone paying attention to Delaware law that the Aruba decisions – both at the Chancery and Supreme Court levels – involved some apparently personal clashes, which have already been the subject of speculation from several quarters, and I can only assume there is more analysis to come.

I was going to weigh in on that as well but upon further reflection, I decided that it’s … boring.  And I’d rather talk about the substance of the law, because what we’re seeing here is the inevitable breakdown in appraisal actions given that no one knows why we even have them.

As a warning, I’ll say that reading over what I wrote on this, I realize it’s probably pretty impenetrable unless you already are versed in Delaware appraisal jurisprudence.  I’ve previously posted about recent developments in Delaware appraisal litigation here, here, here, and here, so that might provide some background, but otherwise – you know, read at your own risk:

[More below the jump]

Continue Reading Aruba: So There’s a Lot To Talk About Here

It’s that time of year again. Many states have released February 2019  bar passage rates. Thankfully, the rates have risen in some places, but they are still at suboptimal levels. Indeed, the July 2018 MBE results sunk to a 34- year low. A recent article on law.com lists some well-known statistics and theories, explaining, in part:

Kellye Testy, president of the Law School Admission Council . . .  suspects the falling pass rates are the results of a combination of factors, the most obvious being the lower credentials of incoming students. The declining quality of public education—meaning an erosion of the reading and writing foundations children develop in elementary and high schools—may also be a contributor, she said. Moreover, the evolving way that law is taught may explain why today’s law graduates are struggling more on the bar exam, said Testy, whose organization develops the LSAT. Professors now put less emphasis on memorizing rules, and have backed off on some of the high-pressure tactics—like the Socratic method—that historically dominated the classroom. “The way we used to teach wasn’t as good for caring for the student, but it made sure you could take a closed-book exam,” she said. “You knew the doctrine. It was much more like a bar exam, in some ways. Today, when you go into a classroom, it’s all PowerPoint. The teachers give them an outline, the students are on computers. There’s a different student approach and a different faculty approach.” The fact that so many law graduates now take bar preparation courses online rather than in person is another avenue worth examining for a potential correlation to falling pass rates, said Judith Gundersen, president of the National Conference of Bar Examiners. “You used to have to go to a lecture and show up every day,” she said. “Now so much of it is online. People are wondering whether that’s changing how people prepare, because there just isn’t that communal aspect where, ‘I have to prepare in case I get called on.’”

I’m not sure how I feel about these assertions. I agree that many students lack some of the key critical thinking and writing skills needed to analyze legal problems. I also see far fewer professors using the strict Socratic method and more allowing computers in class. I allow computers for specific activities but not throughout the class. I also employ more of a modified Socratic method, use powerpoint, and often post it in advance with questions for students to answer prior to class so that we can spend time in class applying what the students have learned. Am I doing a disservice to my students with a flipped classroom? Do we need to go back to rote memorization and cold calling students for the bar passage rates to rise? And if so, will that make our students better lawyers?

I remember how difficult it was to take the Florida bar after three years of law practice in New York. The rote memorization helped me pass the bar exam while working a full time job and caring for an infant as a single mother. But it didn’t make me a better lawyer. Having worked for three years, I remember slogging through bar study thinking that what I was learning in bar prep had little to do with what I actually did in practice. When I prepared for the New York and New Jersey bars, I went to classes live but some were in a classroom via video. I’m not even sure that purely online courses were an option back in 1992. When I moved to Florida and studied for that bar, I used tapes in my car (yes, it was 1996). I had tried the live courses for a few days and realized that my time was better spent reciting the rules of evidence to my son in lieu of nursery rhymes. I passed three bars using two different methods but I wonder how well I would have done with an online version, the way most students study for the bar now. 

I no longer teach courses tested on the bar, but when I did, I had the perpetual conflict– how do I make sure that the students pass the bar while instilling them with the knowledge and skills they will actually need in the real world? I see now how some of my transactional lawyering students dread going to the bar prep classes offered during the semester. But they also consider these classes a necessity to pass the bar even through they will engage in full time bar prep upon graduation. Does the proliferation of these law school bar prep classes mean that the doctrinal professors aren’t teaching the students the way we learned? Or does it mean that that the students are no longer learning the way we did? I don’t have the answers. 

But these articles do have an effect on how and what I teach. Under ABA Standard 306,  law schools can offer up to one-third of their credits online, including up to ten credits for first-year coursework. As I prepare to teach my contract drafting and negotiation class asynchronously online for the first time this summer, I’m learning about presenting information in short, digestible chunks for the students- no more than 15-20 minutes per video, and preferably even shorter, I’m told. I’m also reviewing the conflicting evidence about whether online courses are a help or a hindrance.

Some of my students have taken many courses online as undergraduates. As a compliance officer, I required employees to take courses online and did live training. Personally, I like taking online courses. But I don’t know enough about how well students retain the information and how well they learn to use key skills to serve clients. I’m fortunate, though, to have excellent instructional designers working with me who understand adult learning much better than I do. I’m convinced that more students will seek online courses and more schools will adopt them as a way of earning more revenue through developing programs for working professionals and JD students who need more flexible schedules. This means many more of us may need to prepare for this new way of teaching and learning.