REFLECTIONS ON TWENTY YEARS OF LAW TEACHING

*
Stephen M. Bainbridge

On April 16, 2008, the author received the UCLA School of Law’s Rutter
Award for Excellence in Teaching. This Essay consists of a revised and extended
version of the remarks he gave on that occasion. In it, he addresses both his progression
from frustrated Socratic teacher to happy lecturer and his aspirations for incorporating
new technologies into his teaching. He also reflects on the subject of his teaching—the
American corporation—and argues that being a business lawyer is a very real form of
public interest lawyering.

INTRODUCTION......................................................................................................................13
I. KINGSFIELD I AM NOT ...................................................................................................14
II. WHERE NEXT?................................................................................................................18
III. THE CORPORATION .......................................................................................................21

INTRODUCTION

As I stand before you today, I have very nearly finished my twentieth

year in legal education. With any luck, I am roughly at the midpoint of my
career, or maybe the five-eighths mark. So I would like to take advantage of
your good nature to look back over those twenty years and then to look
forward to what I hope will be another twenty. Specifically I would like to
chat with you both about the pedagogical choices I have made—and will
have to make in the future—and also the subject matter to which I have devoted
my professional life.

* William D. Warren Professor, UCLA School of Law. I thank Dean Schill for his support
and his generous introduction at the award ceremony. I also thank the Rutter family, not only for
this award, but also for their years of dedicated support of legal education. When I looked at the
roster of my colleagues who have received this award in the past, I was deeply honored to have been
inducted into their number. So I thank the selection committee and my students—both current
and past—whose very generous evaluations presumably helped me win this award. Finally, I thank
my wife Helen, who has been my staunchest supporter throughout all these years.

13
14 56 UCLA LAW REVIEW DISCOURSE 13 (2008)

I. KINGSFIELD I AM NOT

When I joined the Illinois University College of Law faculty twenty

years ago, I began a long struggle with the problem of pedagogy. Like many
newly minted law professors of a certain age, I thought Professor Charles
Kingsfield1 was the standard to which I had to aspire. But Kingsfield never
had to teach securities regulation at three o’clock on a Friday afternoon to a
class consisting of third-year students in their last semester of law school.
Suffice it to say that it was not a success. Perhaps I lacked a certain gravitas
or was just too cherubic for my own good. That I am a fairly laid-back guy,
informed with laissez-faire sensibilities, probably did not help.
I began reflecting upon my own law school experience. As I pondered the
various teachers I had in law school, it occurred to me that there were only two
whose style had been truly Kingsfield-like. One was my contracts professor, Bob
Scott,2 whose command of the classroom was amazing. He could hide the ball
and then, like a great magician, pull it out of your ear. Interestingly, however, in
the courses I took from Professor Scott in my second and third years of law
school, he did much more talking than he had in first-year contracts.
The other Kingsfield-like teacher I had at the University of Virginia School
of Law was my torts professor, who should probably remain nameless. His idea of
snappy Socratic dialogue was to respond to every student’s statement with “so
what?” or “who cares?” Imagine Socrates with Tourette syndrome. The only

1. I suppose it is inevitable that, as time passes, the iconic figures of a teacher’s youth fade
until they become for later generations of students but vaguely remembered shadows. Hence, at my
editors’ request, I drop this footnote to recall to your memory Professor Charles W. Kingsfield, once
the most famous law professor in fiction. Kingsfield is a central figure of John Jay Osborn, Jr.’s novel,
THE PAPER C HASE (1971). Kingsfield was brilliantly portrayed by John Houseman in the film
version of the story. See generally Wikipedia, Professor Charles Kingsfield, http://en.wikipedia.org/wiki/
Professor_Charles_Kingsfield (last visited Aug. 24, 2008).
My generation of law students lived in terror that some professor would say to us, as Kingsfield
said to point-of-view character James Hart, “Mister Hart, here is a dime. Take it, call your mother,
and tell her there is serious doubt about you ever becoming a lawyer.” IMDb, Memorable Quotes for
The Paper Chase, http://www.imdb.com/title/tt0070509/quotes (last visited Aug. 24, 2008).
If I could embed a YouTube video at this point, I would offer up the (once) famous scene of
Hart’s first day in Kingsfield’s contracts class. YouTube, The Paper Chase, http://www.youtube.com/
watch?v=-qHEBABE6PU (last visited Aug. 24, 2008).
2. Professor Robert E. Scott is
a nationally renowned and oft-cited teacher and scholar in the fields of contracts,
commercial law, and bankruptcy. . . . In 1974, Dr. Scott joined the Virginia School of Law
faculty, where he served from 1974 to 2006. . . . Professor Scott became a full-time professor
at Columbia Law School in July 2006, leaving his job as Dean of the University of Virginia
Law School, after accepting appointment as the Alfred McCormack Professor of Law and
Director of the Center on Contract and Economic Organization.
Wikipedia, Robert E. Scott, http://en.wikipedia.org/wiki/Robert_E._Scott (last visited Aug. 24, 2008).
Reflections 15

thing I learned in that class was that the Coase Theorem answers any
question, which admittedly has served me well.
In contrast, most of my professors used what I have come to call the soft
Socratic style. Instead of cold calling students, these professors used panels of
students who were on call for a few days per semester. Instead of grilling a
specific student at length, they would toss each student a few questions and
then move on to the next. Students were never told that they had given a
wrong answer, let alone told to go and call their mothers as they would never
become lawyers. At most, the professor would gently guide a student toward the
proper conclusion.
In my early years at Illinois, I frequently sat in on classes taught by
colleagues who were said to be great Socratic teachers. Oddly, however, in most
of those classes, Socrates did almost all of the talking. Just as at Virginia, the
dominant pedagogic style was soft Socratic. In preparing this Essay, I went back
and dug out an evaluation I wrote of one of my Illinois colleagues:
His style is very soft Socratic. He tosses an occasional question
out there and waits for answers. If nobody responds, he answers the
question himself.
He started today’s session by picking up the thread of a discussion
from yesterday. After reviewing the material by lecture, he started the new
material. As before, he relied on volunteers. He got some participation,
but it wasn’t particularly interactive. Students made a comment, he made
a comment, and went on.
In fairness, in those days one could have said much the same thing about
my classroom style.
You see, I knew I was not then and never would be Kingsfield-like, but I
was still trapped in the mindset that no self-respecting law professor could
depart from the Socratic Method. So I too became a soft Socratic teacher.
But doubts kept intruding. Were the students who were not on call prepared?
What did they get out of listening to a classmate answer a question without
having to struggle with it, since I typically moved on to another student or
lectured if the student struggled?
It is [said] that [the Socratic method] teaches students how to “think
like lawyers.” This claim would, of course, require some evidence. For
example, in most countries, including other common law countries, law is
not taught via anything like the Socratic method. Yet presumptively their
lawyers think like, well, lawyers. So somehow they learned. “Thinking
like a lawyer” is a matter of learning how to reason and argue, in some
ways that lawyers share with everyone else, and in other ways that are
peculiar to lawyers (e.g., arguments from authority are not fallacious in
16 56 UCLA LAW REVIEW DISCOURSE 13 (2008)

the law). But why think that one learns how to do this by being grilled
Socratically as opposed to reading examples of lawyerly thinking and
3
hearing lectures explaining lawyerly arguments?
I eventually came to two conclusions. First, if students could not think like
lawyers by the time they got to me in their second or third year of law school,
there was very little I could do to help them except suggest another line of work.
Second, the Socratic Method does not really teach one to think like a
lawyer. At best, it teaches one to think like a litigator.
Consider a typical law student who accepts a [transactional] job at a
large firm. She has spent perhaps ninety-five percent of her time in law
school reading and discussing cases and law review articles. Once in
practice, she will go days or weeks at a time without picking up a case
or a law review article. Instead, her days will be filled with drafting,
reviewing, and marking up transactional documents, negotiating language
with opposing counsel, participating in conference calls, and composing
4
memos, emails, and letters to colleagues and clients.
Thinking like a lawyer, as Kingsfield and his ilk would have our graduate do, is
not very conducive to success in that environment.
In his book, The Terrible Truth About Lawyers, Mark McCormack,
founder of the International Management Group (IMG), a major sports and
entertainment agency, wrote that “it’s the lawyers who: (1) gum up the works;
(2) get people mad at each other; (3) make business procedures more expensive
than they need to be; and (4) now and then deep-six what had seemed like a
perfectly workable arrangement.”5 McCormack further observed that, “when
lawyers try to horn in on the business aspects of a deal, the practical result is
usually confusion and wasted time.”6 He concluded: “[T]he best way to deal with
7
lawyers is not to deal with them at all.”
All of which is why in the classroom I emphasize not only doctrine but also
economics and business. Transactional lawyers must understand the business,
financial, and economic aspects of deals so as to draft workable contracts and
disclosure documents, conduct due diligence, or counsel clients on issues that
require business savvy as well as knowing the law.

3. Posting of Brian Leiter to Leiter Reports, The “Socratic Method”: The Scandal of
American Legal Education, http://leiterreports.typepad.com/blog/2003/10/the_socratic_me.html
(Oct. 20, 2003, 12:15 EST).
4. Victor Fleischer, Deals: Bringing Corporate Transactions Into the Law School Classroom,
2002 COLUM. BUS. L. REV. 475, 480.
5. MARK H. MCCORMACK, THE TERRIBLE TRUTH ABOUT LAWYERS 15 (1987).
6. Id. at 87.
7. Id. at 15.
Reflections 17

I want my students to understand that successful transactional lawyers

build their practice by adding value to their clients’ transactions. Instead of
thinking like Kingsfield, I want them to learn where the value in a given
transaction comes from and how they might add even more value to the deal.
I had always lectured some. I defy even Professor Scott to teach the Capital
Asset Pricing Model Socratically. As my teaching became more oriented toward
transactions, business and economics became more important, and identifying
sources of value in the deals underlying cases became the key task, while grilling
law students seemed less and less effective.
Gradually, bit by bit, I freed myself from the trappings of the soft Socratic
Method. Away with panels! Away with volunteers! Away with questions!
Up with PowerPoint!
Once I went through the twelve-step program and became what Brian
Leiter calls a “recovering Socratic teacher,”8 I noticed that I had some interesting
company. Leiter, for example, has written that: “[T]here is no evidence—as in
‘none’—that the Socratic Method is an effective teaching tool. And there is
much evidence that it’s a recipe for total confusion.”9
In her 1997 book, Becoming Gentlemen: Women, Law School, and
Institutional Change, Harvard professor Lani Guinier blasted the Socratic
Method for forcing female students to adopt a style that many found
alien to them. Former Secretary of Labor Robert Reich . . . wrote in a
1998 essay that the method had “morphed beyond recognition” into an
exercise in intellectual arrogance in which the professor always had the
10
right answer.
Even so, at first, lecturing was my dirty little secret. I felt like a deacon
sneaking out of town to get a snootful. What if my colleagues found out?
Gradually, however, word leaked out . . . and nothing bad happened.
My classes were full to the seams. Deans patted me on the back for getting good
evaluations. Promotions and raises kept coming.
And now the Rutter Award. I would like to think that this award in some
way validates the evolutionary path my teaching has followed. I would also
like to think that it might encourage some of my younger colleagues who
are dissatisfied with the Socratic Method to consider alternatives.

8. Posting of Brian Leiter, supra note 3.

9. Id.
10. Stephanie B. Goldberg, Beyond the Socratic Method, STUDENT LAW., Oct. 2007, available
at http://www.abanet.org/lsd/studentlawyer/oct07/goldberg.shtml; see also LANI GUINIER ET AL., BECOMING
G ENTLEMEN : WOMEN, LAW S CHOOL , AND I NSTITUTIONAL C HANGE 28 (1997); Robert Reich,
Confusion About the Socratic Method: Socratic Paradoxes and Contemporary Invocations of Socrates, 1998 PHIL.
EDUC. SOC’Y Y.B., available at http://www.ed.uiuc.edu/eps/pes-yearbook/1998/reich.html.
18 56 UCLA LAW REVIEW DISCOURSE 13 (2008)

II. WHERE NEXT?

So much for where I have come from as a law teacher. Where next?
As my long-suffering wife knows, I am a bit of a techno geek. I spend an
enormous amount of time on the computer, some of which is work, but there
is also blogging, shopping, and all-around surfing. I dote on my iPhone, which
I regularly use to text the younger members of our family. I am addicted to my
iPod. The question that intrigues me thus is how to incorporate all of this into
my teaching.
My latest musings on this issue were prompted by a story in The Chicago
Daily Law Bulletin, which reported that University of Chicago Law School Dean
Saul Levmore has “removed Internet access in most of [Chicago’s] classrooms.”11
The story continued:
When Levmore proposed to the faculty in early March that the
school might cut off Internet access in most classrooms, some faculty
responded that computers should be banned, he said.
Some professors believe that students who take notes on laptops
during lectures interfere with their own learning.
“Back in the day when we took notes by hand,” Levmore recalled,
“some people took fewer notes and learned more.”
....
The heart of his decision to prevent Web surfing in class, he said,
is that the students “are going to go out to law firms and other settings
where they’re going to miss these years where they had opportunities
for human interaction and contemplating ideas.
“And that’s partly what the classroom is for. They don’t realize
the value of what they’re being distracted from. That’s really what I
12
believe in most.”
I hate to break it to Dean Levmore (and my colleagues here at UCLA
School of Law who have adopted a similar policy), but texting, Web surfing,
or what have you is just the up-to-date version of an age-old issue. Back “in the
day” when I was one of Levmore’s students at Virginia, there were times when we
did not pay much attention in class. And while we did not have laptop
computers, we had lots of other ways to distract and amuse ourselves. Solving
crosswords. Playing turkey bingo. Daydreaming. Passing notes. Doodling.
Writing letters. Editing law review articles. Reading for another class.
Hiding a comic book inside our case books.

11. Jerry Crimmins, U of C Law School Takes Classrooms Out of the Internet Age, CHIC. DAILY L.
BULL., Apr. 10, 2008, available at http://www.law.uchicago.edu/news/cdlb-reclaim-classrooms/index.html.
12. Id.
Reflections 19

So I very much doubt that my students pay any less attention or are
any more distracted than I was back “in the day.”
Having said that, however, the current generation of students is different
than mine in one important respect. I have taught Gen X and Gen Y, and now I
am starting to teach Millennials. For them, multitasking is a way of life. Staying
connected 24/7 via text messaging, instant messaging, and email is perceived as
an inherent right.
In response to the Chicago story, my friend and fellow blogger Gordon
Smith observed that:
Yesterday my son brought home his high school’s newspaper,
and the front page featured tips for [cell phone] texting during class.
Under the table. Behind the textbook. Exactly what you would expect.
Apparently, the only teachers in the universe who would be surprised at
this subterfuge all happened to end up at the University of Chicago Law
School! What will they do when they discover law students engaged in
precisely this behavior? (Ban mobile phones!) Or, worse yet, when they
discover that students have equipped their laptops with mobile broadband?
13
(That’s it, we are banning all electronic devices!)
Smith concludes, I think correctly, that “the problems accompanying laptops
in the classroom are behavioral, not technological.”14 (Candid admission: I
use my iPhone in precisely these ways during faculty meetings.)
Chicago is apparently trying to force legal education back into the Kingsfield
model. A smarter solution would be trying to figure out how to leverage these
behaviors. After all, our students are not going to stop multitasking when they get
out in the workforce. Indeed, the Economist has a special report on the increasing
extent to which Millennials are becoming nomads:
Urban nomads have started appearing only in the past few years.
Like their antecedents in the desert, they are defined not by what they
carry but by what they leave behind, knowing that the environment
will provide it. Thus, Bedouins do not carry their own water, because
they know where the oases are. Modern nomads carry almost no paper
because they access their documents on their laptop computers, mobile
phones or online. Increasingly, they don’t even bring laptops. Many
engineers at Google, the leading internet company and a magnet for
nomads, travel with only a BlackBerry, iPhone or other “smart phone”.
If ever the need arises for a large keyboard and some earnest typing,

13. Posting of Gordon Smith to The Conglomerate, http://www.theconglomerate.org/2008/04/

internet-in-the.html (Apr. 12, 2008) (emphasis omitted).
14. Id.
20 56 UCLA LAW REVIEW DISCOURSE 13 (2008)

they sit down in front of the nearest available computer anywhere in

15
the world, open its web browser and access all their documents online.
Elsewhere in the report we learn that:
James Ware, a co-founder of the Work Design Collaborative, a small
think-tank, says that nomadic work styles are fast becoming the norm for
“knowledge workers”. His research shows that in America such people
spend less than a third of their working time in traditional corporate
offices, about a third in their home offices and the remaining third working
from “third places” such as cafés, public libraries or parks. And it is not
only the young and digitally savvy. At 64, Mr. Ware considers himself a
nomad, and accesses the files on his home computer from wherever he
16
happens to be.
Law firms doubtless will resist these trends, as they are incredibly slow in
adopting both new technologies and new approaches to human resources. Just
as Chicago is trying to perpetuate the Kingsfieldian style of legal education, my
impression is that big law firms likewise are trying to perpetuate the 1980s
Wall Street model of lawyering. Just as Canute was unable to keep the sea from
rolling in, however, these institutions will find that the tides keep coming: They
will need to adapt or die.
I do not know yet how to leverage the technologies that facilitate urban
nomadism to improve law school teaching. But it is an issue about which I have
been thinking a great deal. In small classes, I have experimented with using
group blogs instead of traditional research papers. I am thinking about having
students build wikis. I make PowerPoint slides and audio recordings from every
class available on a course website that my students can access from anywhere. I
am looking at using personal response hardware to make PowerPoint-based
lectures more interactive. Indeed, since many of my classes consist of 100–130
students, I think the latter offers a way to involve more students simultaneously
than is possible with the traditional oral Socratic Method.
My hope is that I can find ways to use technology to become an even better
teacher. At the very least, however, I have a built-in rationale the next time I
have to persuade my wife Helen that I need Steve Jobs’ latest-and-greatest
techno toy.

15. Nomads at Last, E CONOMIST , Apr. 10, 2008, available at http://www.economist.com/

specialreports/displayStory.cfm?STORY_ID=10950394.
16. Labour Movement, ECONOMIST, Apr. 10, 2008, available at http://www.economist.com/
specialreports/displaystory.cfm?STORY_ID=10950378.
Reflections 21

III. THE CORPORATION

I now would like to turn from how I teach to what I teach.

Legal education pervasively sends law students the message that corporate
lawyering is a less moral and a less socially desirable career path than so-called
“public interest” lawyering.17 The corporate world is viewed as essentially
corrupting and alienating, while true self-actualization is possible only in a Legal
Aid office.
Our students get these messages not only in law school, of course, but also
from the media. Films like A Civil Action18 or Erin Brockovich19 illustrate the
general ill repute in which corporations—and corporate lawyers—are held,
at least in Hollywood.
In my teaching, I have chosen to unabashedly embrace a competing view. I
tell my students about Nicholas Murray Butler, president of Columbia University
and winner of the Nobel Peace Prize, who said: “[T]he limited liability
corporation is the greatest single discovery of modern times . . . . Even steam and
electricity are far less important than the limited liability corporation . . . .”20
I tell them about journalists John Micklethwait and Adrian Wooldridge,
whose magnificent history, The Company, contends that the corporation is “the
basis of the prosperity of the West and the best hope for the future of the rest of
the world.”21
There is no doubt that the corporation is now the key economic institution
in developed nations. In the United States, for example, the corporation is the
predominant form of business organization by every measure except sheer
22
number of firms. According to recent census data, although corporations
account for only about one-fifth of all business organizations, they bring in almost
90 percent of all business receipts.23
The corporation also has proven to be a powerful engine for focusing the
efforts of individuals to maintain economic liberty. Because tyranny is far more

17. See Posting of Dave Hoffman to Concurring Opinions, http://www.concurringopinions.com/

archives/2008/04/bainbridge_on_c.html (Apr. 9, 2008, 12:03 EST).
18. A CIVIL ACTION (Touchstone Pictures 1999).
19. ERIN BROCKOVICH (Jersey Films 2000).
20. William Meade Fletcher, 1 CYCLOPEDIA OF THE LAW OF PRIVATE CORPORATIONS 43 (1917)
(quoting Nicholas Murray Butler, President, Columbia Univ., Address at the 143rd Annual Banquet of the
Chamber of Commerce of the State of New York (Nov. 16, 1911)).
21. JOHN M ICKLETHWAIT & ADRIAN WOOLDRIDGE, THE COMPANY: A SHORT HISTORY
OF A REVOLUTIONARY IDEA (2003).
22. STEPHEN M. BAINBRIDGE, CORPORATION LAW AND ECONOMICS 1–2 (2002).
23. Id.
22 56 UCLA LAW REVIEW DISCOURSE 13 (2008)

likely to come from the public sector than the private,24 those who for selfish
reasons strive to maintain both a democratic capitalist society and, of particular
relevance to the present argument, a substantial sphere of economic liberty
therein, serve the public interest. Put another way, private property and freedom
of contract were “indispensable if private business corporations were to come into
existence.”25 In turn, by providing centers of power separate from government,
26
corporations give “liberty economic substance over and against the state.”
Yet, two centuries ago, leading business and economic thinkers—including
the great Adam Smith—derided the joint stock company.27 Few businesses were
organized as chartered companies. Each company’s charter required a special
legislative act.28 In many places, legislatures granted charters only to quasi-public
entities, such as railroads and canals. In most, legislatures rarely resisted the
temptation to revise or even repeal existing charters arbitrarily. Even in
the United States, where the Supreme Court’s famous Dartmouth College29
decision gave corporations substantial constitutional protections at a relatively
early date, such legislative meddling remained commonplace.30
And so I ask my students: What explains the relatively rapid development
in the mid-nineteenth century of a recognizably modern corporation and, in
turn, that entity’s emergence as the dominant form of economic organization?
The answer has to do with new technologies—especially the railroad—
requiring vast amounts of capital, the advantages such large firms derived
from economies of scale, the emergence of limited liability that made it
practicable to raise large sums from numerous passive investors, and the rise of
professional management.31
For the most part, these advantages are the same today. The corporation
remains the engine of economic growth, both at the level of giants like Microsoft
and garage-based start-ups.

24. See Stephen M. Bainbridge, The Bishops and the Corporate Stakeholder Debate, 4 VILL. J. L.
& INVESTMENT MGMT. 3, 25 (2002).
25. MICHAEL NOVAK, TOWARD A THEOLOGY OF THE CORPORATION 45 (rev. ed. 1990).
26. Id.
27. See, e.g., 5 A DAM S MITH, A N I NQUIRY INTO THE N ATURE AND C AUSES OF THE
WEALTH OF NATIONS 800 (Edwin Cannan ed., Modern Library 1994) (1776) (“The directors of
[joint stock] companies, . . . being the managers rather of other people’s money than of their own,
it cannot well be expected, that they should watch over it with the same anxious vigilance with
which the partners in a private copartnery frequently watch over their own.”).
28. See BAINBRIDGE, supra note 22, at 39.
29. Trustees of Dartmouth College v. Woodward., 17 U.S. (4 Wheat.) 518 (1819).
30. See generally LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 136–37 (3d ed.
2005) (discussing the status of corporations in the ante-bellum period).
31. See BAINBRIDGE, supra note 22, at 2 (discussing attributes of the corporation that made
it the preeminent organizational form in the U.S. economy).
Reflections 23

The rise of the corporate form thus has “improved the living standards
of millions of ordinary people, putting the luxuries of the rich within the reach of
the man in the street.”32 The rising prosperity made possible by the tremendous
new wealth created by industrial corporations was a major factor in destroying
arbitrary class distinctions and in enhancing personal and social mobility.33
And so I put it to my students this way: You want to help make society a
better place? You want to eliminate poverty? Become a corporate lawyer. Help
businesses grow, so that they can create jobs and provide goods and services
that make people’s lives better.
The goal is not just to make my students feel better about themselves. I
firmly believe that too many of our students, when they get out in practice, may
be more willing to act in ways that are ethically gray—to act as facilitators rather
than gatekeepers—if they have been told repeatedly that they have already “sold
out.”34 If more legal academics were to celebrate the positive social aspects of
corporate practice, perhaps our students would be better gatekeepers once they
get out in practice.
I hope that this award has in some small way validated that message.

32. MICKLETHWAIT & WOOLDRIDGE, supra note 21, at 77.

33. See NOVAK, supra note 25, at 42.
34. Posting of Dave Hoffman to Concurring Opinions, supra note 17.