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Value Creation by Business Lawyers 30 Years Later: Revisiting Ronald Gilson's Foundational Article Through the Lens of Transactional Legal Clinics

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Debbie Lovinsky

on 5 January 2014

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Transcript of Value Creation by Business Lawyers 30 Years Later: Revisiting Ronald Gilson's Foundational Article Through the Lens of Transactional Legal Clinics

Value Creation by Business Lawyers 30 Years Later:
Revisiting Ronald Gilson’s Foundational Article Through the Lens of Transactional Legal Clinics

"If business lawyers systematically fail to understand fully their real function, and if the application of theory can, as I argue, improve things, the search for an explanation for this failure quickly points to the law school."
Skills Training Over Three Decades
Since the mid-1980’s the number of transactional clinical programs in
U.S. law schools has ballooned from
a handful to 155 and counting

Do Business Lawyers Add Value?
In 1984 Prof. Ronald Gilson wrote
Value Creation by Business Lawyers: Legal Skills and Asset Pricing
, a foundational article in the study of transactional law.



Gilson's Reflection on Value of Business Lawyers
"The central problem with clinical teaching....center[s] on the enormous expense of doing it well. The point is not simply to allow students to act like lawyers, however much they may enjoy the change from the classroom, but to teach them to
function
like lawyers. The difficulty, however, is that this task requires very careful supervision of the student and review of the student's work."
Law Schools' Role in Developing Transactional Skills Through Clinical Pedagogy

Gilson: By teaching practice skills (
i.e.
drafting, negotiating), law schools can facilitate private ordering versus the public ordering traditionally highlighted through the casebook
method










Supporting Gilson's goal "to facilitate practice, [through] a partnership between academics and practitioners..."
Conclusion:

30 years after Gilson's seminal article and in response to inadequate business law training within law schools, transactional clinical program pedagogy is increasingly developing scalable practice skills;

Combined with a restructuring of the third year curriculum, addresses many of Gilson's critiques and is producing more "practice ready" lawyers.
"The potential I have described for law schools to make important contributions in training business lawyers ... combine to present a fairly optimistic picture of the future ...of the legal academy and profession." Prof. Gilson

Faculty with sufficient business law practice
Clinical supervision demands high faculty-student ratios
Generally high cost of clinical teaching
Proposal to restructure 3L year (option to start practice a year earlier, reintroduce apprenticeship model)
The Role of Legal Clinics?
Gilson highlighted innovations at the
time within the business law curriculum, citing casebook developments addressing fact that client problems
exist outside of neat doctrinal boxes.
"Solving real world problems inevitably requires integrating the conflicting demands of a variety of concerns growing out of tax law, corporate law, securities law and accounting."
Prof. Gilson's analysis employed capital asset pricing theory and a corporate acquisition agreement to provide empirical verification of the value lawyers bring to deals as "transaction cost engineers."

Three foundational themes in Prof. Gilson's article:
Linking Theory
& Practice: Educational reforms to address gap in business law education

Value of lawyers as transaction cost engineers in a clinical setting

Role of Transactional Clinics: Developments in three decades and
future insights
Prof. Gilson's theoretical perspectives fueled the "transactional clinical movement."
Live Client Clinics
Substantive Areas of Law
Corporate, Contracts,
Tax, Intellectual Property,
Employment &
Entrepreneurship
Advise and counsel for-profits, nonprofits and social enterprises
re: business goals, formation, entity choice and structure, drafting contracts, bylaws, partnership and operating
agreements
Professional values, professional responsibility and ethics
Real Case Context:
Value
of Legal CIinics
Functioning as a Lawyer in a
Live-Client Clinical Context
Case Examples
Legal Skills




Jones Lainez,
Enriching the Law School Curriculum: The Rise of Transactional Legal Clinics in U.S. Law Schools
,
(43 Wash. U. J.L. & Pol'y _ (2013)
"I learned how to ask the
right questions, and
anticipate the types
of questions client's ask...
My clinic experience provided
a natural bridge between legal coursework and practice, it
provided me the chance to
think like a lawyer,
instead of just as a law
student."
Christopher Healy,
K&L Gates (DC)

Interviewing and Counseling Clients

Learning How to Develop Lawyer-Client
Relationships
Legal Analysis and Exercising Legal Judgment

Developing Key Facts and Theory of Case
Anticipating Legal Problems

Counseling Clients and Negotiating on
Behalf of Clients

Minimizing
Ex-Post Litigation
Reducing Transactional
Costs
Reducing Regulatory
Costs
Acting As
Reputational
Intermediary
Client
Privilege
and
Confidentiality
Creating Economies
of Scope
Full transcript