Storming the Castle Posted: May 24, 2007 By KATRINA DEWEY For 200 years, the pursuit of an education in the law has caused otherwise intelligent people to behave badly. Very, very badly. It is virtually impossible to say when this illness took hold in our society.*
There is no light, there is no dark, there is only the law. Scott Turow wrote “One L,” the definitive work on this malady. When he entered Harvard* in 1975, Turow had spent several years teaching writing at Stanford University, had a good marriage and, other than a tendency to compulsion, seemed normal. After a brief three months in the otherwise-lovely burg of Cambridge, Mass., his world had turned upside down. “11/17/75 … It is Monday morning, and when I walk into the central building, I can feel my stomach clench. … By Friday my nerves will be so brittle from sleeplessness and pressure and intellectual fatigue that I will not be certain I can make it through the day. After years off, I have begun to smoke cigarettes again; lately, I seem to be drinking a little every night. I do not have the time to read a novel or a magazine, and I am so far removed from the news of world events that I often feel as if I’ve fallen off the dark side of the planet. I am distracted at most times and have difficulty keeping up a conversation, even with my wife. At random instants, I am likely to be stricken with acute feelings of panic, depression, indefinite need, and the pep talks and irony I practice on myself only seem to make it worse. “I am a law student in my first year at the law, and there are many moments when I am simply a mess.” Turow’s illness was not properly diagnosed at the time. In the grip of flu-like symptoms including a dementia that caused him to wish ill upon his study mates, he found his way below ground to the Harvard* psychiatrist’s office, where the heavy demand for services resulted in the scheduling of an appointment for mental health therapy four weeks hence. Turow made a startling semi-recovery and, although succumbing to partnership at Sonnenschein, Nath & Rosenthal in Chicago after a distinguished career in the local U.S. attorney’s office, he found the time to write a cache of bestsellers that have brought readers the most well written and crafted stories about the U.S. legal profession. Since “Presumed Innocent” in 1987, he has reached more than 25 million readers worldwide.
Lawdragon spent the past six months studying the state of legal education in the United States and discovered that a revolution has occurred. Not surprisingly, dollars played a major role, specifically the salaries commanded by fledgling attorneys with no clue how to practice law. “Forget the Harvard and Yale head in the clouds types, give me six good, nonpampered graduates of Loyola or Miami,” had become an all-too-familiar refrain. Dollars also mattered in the form of donations from alumni, many of whom still bore the marks of the lash. It’s one thing to love the church, another to support the catechism. And thus came reformation, fueled as well by common sense, competition from other disciplines, the oversaturation of ivory tower professors rewarded for arcania rather than teaching and a world of unlimited information that reduces to present time the value of precedent.** Today, every case and deal is famous for at least 15 hours.
Thirty years ago, Turow and his classmates at Harvard* staged a mini-rebellion at the browbeating administered by Professor Rudolph Perini (a pseudonym, reputed to be Arthur Miller) upon Mr. Mooney, who was unprepared when called upon. The insurrection faltered, but the die was cast for the notion that legal education should primarily focus on those being educated, rather than the professors and the school. “I asked the question at its core of what it meant to be a lawyer,” Turow said. “To the extent that ‘One L’ was the first voice really raised that this can be better for students,” that’s gratifying. The revolution did not just crystallize schools’ primary focus as educating future practicing lawyers, it also changed how the law is taught — and perhaps even the law itself. The revolution found its foothold at schools that needed something instead of a top tier ranking to attract students. Schools established clinics offering real experience with real clients, founded interdisciplinary courses and brought in a range of practitioners who taught under the title adjunct. Then dawned Sept. 11, 2006, the day on which the heathens stormed the castle — led by, of all people, the former dean of Harvard Law School, who joined with a star of the corporate judiciary to create a course from which legal education can never return. Harvard Law School Course No. 43900 — “Mergers, Acquisitions and Split-Ups” — is taught by Vice Chancellor Leo Strine Jr. and Harvard* dean emeritus, Professor Robert Clark. Think of them as a more compatible Mac and PC. Class 43900 offers materials drawn from treatises and case law, the Wall Street Journal and deal memos from elite New York law firms Wachtell, Lipton, Rosen & Katz and Skadden, Arps, Slate, Meagher & Flom. The traditional classroom work is handled by Clark and Strine, who alternate as instructors approaching the law as a tool of the present, rather than a pocket watch that still happens to keep time. Its greatest departure, however, comes in the introduction of contextual law in the form of real-life stories of legends who travel to Cambridge to discuss current corporate battles. Carl Icahn’s putative attempted takeover of Time Warner, for example, was discussed by Richard Parsons of Time Warner, Gene Sykes of Goldman Sachs and Bruce Wasserstein of Lazard, who batted about the notion of shareholder activism and whether Icahn was a stalking horse for existing management.***
In “Double Indemnity: A Friendly Tale of Hot Dogs and Trainwrecks,” we’ll also cover the art and gamesmanship of negotiating an acquisition, as taught by Cooley Godward’s Rick Climan paired with Skadden’s Eileen Nugent and Lou Kling. (And, though the law is more vibrant than ever, we have still resorted to a bit of literary license. So, to clarify, Professor Bebchuk did not literally don clown pantaloons; Dick Parsons and Bruce Wasserstein did not duel with sabers; and Rick Climan did not actually speak like a private investigator from the 1940s.) The radicalism is not just in who’s teaching, but also in what that exemplifies. Richard Parsons is not in Class 43900 to teach Cadell v. Palmer, 1 Cl. & Fin. 372, 6 Eng. Rep. 936 (H.L. 1832, 1833). He’s discussing today’s events and the strategy behind them — law as an interactive series of moves and countermoves that plays out in the courtroom, yes, but also in the boardrooms and the media. In the era of contextual law, no ideas or precedents are bigger than those who apply them. Every deal is a new dance, every case a new paradigm. Today’s law is alive, being turned to the calibration of high-speed microprocessors driven by those whose every public utterance and strategic move reinterprets what previously was written then ground finely from stone tablets. The law is radically new and relevant again. And that’s how it’s being taught at schools throughout the nation after a quiet revolution fought with checkbooks and common sense. And nowhere is the shift more radical than at Harvard*.
Sept. 11, 2006: Robert Clark heads to his first day of teaching Harvard Law School Course No. 43900 — “Mergers, Acquisitions and Split-Ups”… It is Monday morning, and when I walk into the central building I can feel my stomach clench. For the next three months I will fear that I have become somewhat less intelligent than many of those around me. Dear God. At some moments I’ll suspect that the privilege I enjoy was conferred as some kind of peculiar hoax. I will be certain that no matter what I do, I will not do it well enough; and if Leo Strine says something outlandish, I will burn with shame. He’s a brilliant judge, but is this really a fitting punctuation on my otherwise brilliant career? I know, I know, it is the students who suffer from sleeplessness and pressure and intellectual fatigue, who take to cigarettes and alcohol and forget the world. But nowadays, we give them hot chocolate, there will be an ice rink; they will have to stumble very, very badly to not be millionaires before they turn 35. The market on panic, desperation, indefinite need? These days it’s us academics who need to visit the shrink in the basement. I am the former dean of Harvard Law School, about to teach my first course with a “practitioner,” and there are many moments when I am almost a mess. Not really a mess, but almost.
After years engaged as a master of corporate finance and tax law followed by a lengthy stint as dean of Harvard Law School, Robert Clark wanted to return to the classroom. Old habits are hard to break. Raised a Jesuit of few means in New Orleans, he envisioned a career as a missionary priest in the Philippines, China or South America. His higher calling instead came in academia after studying too much philosophy and discovering a gift for symbolic logic. He holds three degrees, including a Ph.D., the pursuit of which included a stint working for Alvin Toffler and tutoring George Soros. No one’s idea of a rebel, Clark would become the insider who lowered the drawbridge. Perched in the dean’s office from 1989-2003, he could not avoid two unpopular facts. One, Harvard had been supplanted by Yale Law School in some popular surveys as the nation’s leading law school; worse, it had fallen behind Stanford in the much-maligned, but popularly relied upon U.S. News & World Report survey. Two, and more importantly to him, powerful and thoughtful people of influence, some from wealth, others from position, were unhappy with the scholarship coming out of the legal academy, believing it to be outdated and tangential, the product of an intelligentsia culture far out of step with the mainstream. When he stepped down from the dean’s post, his decision to return to the classroom was an obvious one that supplemented his positions on several prestigious boards, including those of Time Warner, TIAA-CREF and, for a moment, investment bank Lazard. His choice of what to teach was slightly more problematic. A firebrand from the hinterlands had begun teaching Delaware corporate law as a two-credit course at Harvard, encompassing a healthy body of the M&A curriculum. But in a stroke of genius and street cred, Clark realized the two of them together could create something special. What Leo Strine Jr. lacked in pedigree, he abundantly compensated for in passion and performance. After graduating from Penn Law School, he had rubbed his nose in the sweat trough of Skadden Arps' Wilmington outpost, before becoming counsel to Delaware Governor Thomas R. Carper. He was appointed to the Court of Chancery in 1998 and rapidly became the most important corporate jurist in America. He may be most noted for his high resolution and very graphic presentation – and is equally likely to cite the Beverly Hillbillies as Section 251 of the Delaware corporate law, or suggest that Time Warner CEO Richard Parsons shower the company’s publishing division with cash because the nation needs a weekly pub on Paris Hilton. To some extent, though, that’s just a sideshow for the nation’s leading dealmakers and their hired guns, who recognize that his quick mind and incisive scholarship is creating a body of law that will define American business for at least this generation. So, too, is the four-credit course he’s now teaching with Clark. The alchemy of Clark and Strine preserves intellectualism while yielding gold in the deference it also gives to the stars of the street – Lazard CEO Bruce Wasserstein, Gene Sykes from Goldman Sachs and a host of prestigious law firm partners, including Skadden Arps’ Peter Atkins, Wachtell Lipton’s Marty Lipton, Sullivan & Cromwell’s Jim Morphy and Cooley Godward’s Rick Climan. And that was exactly the point. Gone is the era of the pure academic theoretician, who constructed causes of action out of conjecture, to be floated to appellate benches in hopes of finding a closeted non-pragmatist. With them disappeared a healthy dose of legal education’s fetishistic slavishness to common law to the exclusion of practice and profit. “I had a strong sense as dean, we had to interact more with the professions,” Clark explains. This resulted in more serious published scholarship. “But the obsessions/focuses/themes that academics would latch onto weren’t connected to the real world,” Clark explains, deploying his habitual tip of the chin and sideways glance that appears to seek approval but actually is looking for acknowledgment that you understand his understatement. In the late 1990s, for example, scholarship emerged obsessed with the anti-takeover defenses of the mid-1980s. “And I said, ‘wait a minute, there are mostly negotiated acquisitions now.’” For the first session of class 43900, students were confronted with the expected 44 pages from academic pieces on corporate finance and industrial market structure, but also an article by Lipton, Mergers: Past Present and Future, hyper-detailing the factors that drive American markets. The future princes of the realm – who are paying $37,000 a year for this education – were also asked to read a Wall Street Journal piece by Jason Singer and Dennis Berman, the favored reporter of the corporate law gurus. They forecast that 2006 will produce more than $3.5 trillion in deals thanks to abundant credit, globalization, lax antitrust enforcement and, mostly, private equity. “This course is several orders of magnitude more than I’ve seen before,” Clark says. Now if he can just live through Leo, who will awaken tomorrow in Delaware at 5:30, take a run, fly to Boston and let it rip. After years playing the ultimate insider, Clark is working the edge. And loving it. Page: 1 of 5 pages for this article 1 2 3 > Last »
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