Can Governments Follow Their Own Rules?

Posted on March 4, 2014 by Elizabeth Moroney

New Product: Consumer Financial Protection Bureau

It is no easy task to create a new government agency, and the Consumer Financial Protection Bureau was no exception. After the recent financial crisis, the CFPB was conceived in 2011 as a way to regulate financial products, in the way that the Consumer Product Safety Commission regulates tangible products. However, some legislators took issue with its proposed clout, cost, and goals. The appointment of a director was wracked with controversy—President Obama instated Richard Cordray as a recess appointment while Congress was technically in session. Then, the CFPB endured a two-year purgatory, as Congress struggled to confirm Cordray as leader. The CFPB’s authority finally vested in 2013 when Cordray was approved; facing critical attention from the media and political opponents, the agency could not afford a misstep.

Its statutory mandate was simple, but vague: to “consider the potential benefits and costs” when making rules. How could an agency consider the benefits and costs when nothing like it had ever existed?

The 2011 Business Roundtable v. SEC decision raised the stakes of the mandate, suggesting that independent agencies might need to quantify costs and benefits. Between the agency’s controversial beginnings and the scrutiny of financial agencies post Business Roundtable, the CFPB needed a clear policy fast, one that could withstand litigation challenges or congressional review.

The General Counsel’s office of the CFPB had to legally navigate the agency’s semi-autonomy. It became an exercise in interpretation and discretion. Did Business Roundtable apply to the CFPB? Was quantitative cost-benefit analysis necessary, and how might it be done? How could CFPB policy best reflect these opinions? After arriving at hard-won consensus, would the courts agree with them?

Professor Howell Jackson

Professor Howell Jackson’s case study, Consumer Financial Protection Bureau, delves extensively into the statutory mandates, precedents, and best practices for agencies setting rulemaking standards.  Designed for the Problem Solving Workshop, a required 1L course at Harvard Law School, the case progresses through discussion, legal analysis, and memoranda writing before bringing participants to the heart of the problem: finding a unifying policy for rulemaking that stays true to mission of the agency. Participants play the role of new attorneys at the General Counsel’s office of the CFPB tasked with making this policy, and ultimately present their conclusions to a volunteer practitioner acting as the Director of the CFPB. Participants learn how to interpret law in context, review materials purposively, and anticipate a client’s questions and concerns when acting on their behalf.

The case includes five parts: an introduction of the problem, the agency, and the relevant court decisions; a continuation of the problem that supplies extensive appendices to consider how the agency has incorporated statutory mandates, court decisions, and recommended practices; a memorandum assignment focusing students on one of two policy objectives; final instructions to synthesize those objectives for the presentation to the CFPB Director; and a glossary of acronyms used. Consumer Financial Protection Bureau is available free of charge on the Case Studies website, and educators have free access to a detailed teaching plan as well as analysis of relevant rules and decisions.

The Problem Solving Workshop allows students to confront client problems in the way practicing lawyers do, from the very beginning. Jackson, who teaches financial regulation and federal budget policy at Harvard Law School, taught in the Problem Solving Workshop from 2010 to 2013.

For more information, or to discuss how to adapt the case study and problem solving pedagogy for your academic or professional education needs, contact the Case Studies Program at  hlscasestudies at law.harvard.edu.

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Case Studies Conversations: Exec Ed Director Scott Westfahl ’88

Posted on February 12, 2014 by Elizabeth Moroney

Professor Scott Westfahl ’88, the new faculty director of HLS Executive Education, has been using case studies to train better lawyers for years. Not only did Westfahl serve as Director of Professional Development for Goodwin Procter LLP and Chair of the Professional Development Consortium, but he has also co-taught a section of the HLS Problem Solving Workshop yearly since its inception in 2010. I sat down with Westfahl to hear how case studies and experiential learning inform his mission for educating both seasoned professionals and aspiring lawyers:

Why are case studies important for professional development?

People learn best through the power of story and discussion, and professional development requires context.  Law firms and legal educators are now realizing that the typical talking-head panel discussions or partner-delivered PowerPoint presentations on legal topics are mostly ineffective for helping lawyers put theory into practice.  Lawyers are all smart enough and enough online resources exist for them to come up to speed on basic legal concepts and frameworks.  Rather than waste valuable, in-person instruction time regurgitating such content, instructors using the case study method can assume a base level of subject matter competency and move forward to actively helping participants to work with the relevant material and understand how it really matters.

Other benefits include trust- and respect-building among colleagues who participate together in case-based learning.  For a lawyer in one of these professional development programs, there may be an intense discussion going on that applies to your world. If a colleague makes a terrific contribution, respect increases, and your trust in them as a lawyer increases. Lawyers hesitate to collaborate with people they don’t know; if you haven’t seen someone’s thought process, you’re unlikely to make that referral.  Trust and collaboration are essential to realizing the business synergy of scale within a law firm.  So our teaching method not only sharpens lawyers’ substantive and professional judgment, it also helps build trust, foster collaboration and enhance a firm’s culture.   Am I going to call the new guy? If I know he’s smart because we’ve solved a problem together in a case-based class, I am a lot more likely to do so.

Which case studies work well in a lawyer professional development setting?

The classic producer-manager case studies are tremendously effective for law firm partners.  They’re normally so focused on their work that it’s hard to gain perspective on where they are in their careers, to see all of the competing demands on their time. Advising clients, managing the business, taking on pro bono work or mentoring roles, being a leader in the community, attending bar events, having a family—the list goes on. So when a partner reads one of the producer-manager case studies, they often have a strong emotional reaction and think “someone else is describing my life.” It’s cathartic, even more so to be in a room of similarly situated peers. Then, they work together in class to identify coping strategies.

How are you bringing experiential learning to HLS Executive Education?

The core of all of our programs – for law firm leaders, emerging leaders, associates and corporate counsel – is experiential learning through the heavy use of case studies and discussion-based learning.  As we grow our program to include more legal substantive content, we are going to be developing new case studies and “caselets” with faculty members in order to leverage the full power of this learning method.  I’m confident that this is the way to go and is what practicing lawyers want from us and need.  Just look at the success HBS has had in doing this with their Executive Education Program (which just opened its third building, with 75 hotel-style rooms and three classrooms!).   There is great hunger for programs taught by leading experts in an interactive format that allows participants to learn from each other as well.  The distinguishing factor for HLS Executive Education needs to continue to be the way we teach.  We don’t convene conferences or compete with external CLE providers and don’t want to.  We’re thinking: where’s the discussion-based case learning that makes this different?  If the only thing special about executive education is the invite list, we haven’t achieved anything new or helpful.

The beauty of case studies and “caselets,” again, is that participants also learn from each other. They’re seasoned professionals, and case studies facilitate learning by getting them to talk about challenging scenarios.  There’s no right answer to these challenges.  The case studies allow educators to introduce frameworks, research, and concepts.  Because the case studies are stories rooted in real situations, participants remember them and are able to apply what they heard as soon as they encounter analogous situations.  In my previous role leading professional development at a major law firm, it was INCREDIBLY helpful to me when partners had experienced cases on leadership and motivating others; they could draw lessons from those cases and work with me to implement more effective processes and programs to develop junior lawyers.  We were talking the same language and they were conversant with leadership and motivation concepts and frameworks because they had worked through cases that cemented the importance of those concepts and frameworks.  Priceless.

How do Problem Solving Workshop case studies compare to case studies you use in professional development programs?

I am a huge fan of Harvard Law School’s PSW case studies.  I practiced law for ten years, but very little of what I learned in law school directly applied to my work as a practicing lawyer. My dad was a submarine officer and I grew up on Navy bases all around the country—I didn’t know what lawyers did. I didn’t even know any lawyers.  I would have benefitted SO much from PSW because its cases place students in the middle of real situations that lawyers face, and ask students to work in teams to figure out what they should do as the lawyers in those situations.  PSW case studies directly involve lawyering skills, whereas other case studies focus on specific dilemmas a leader or an organization is facing. In PSW, students get to see what it’s like to be a particular kind of lawyer, which is especially helpful if students are unfamiliar with the legal profession like I was as a law student.

At their core, PSW case studies are about teaching judgment in addition to substantive law.  If practicing law were only about knowing substantive law, we wouldn’t need PSW.  But it’s not.  When I was running professional development at a large firm, I once conducted an internal study to identify the factors that correlated most highly with strong associate performance ratings in their annual reviews.  By a factor of seven times, judgment was the most important factor.   So a case study method that develops judgment and perspective for law students is a critical complement to the traditional case method through which students learn legal doctrine.  For the good of our profession and to fulfill our mission as a professional school as well as an academic institution, I hope we continue to develop the PSW case study approach so that it becomes as big a part of the way we teach as Langdell’s own method.

Finally, through my professional development background I have seen firsthand the very disappointing levels of dysfunction within legal organizations that arise because lawyers are not trained to work in and/or lead teams.  That’s why I’m most excited about the team element of PSW—it’s the only core curriculum course at Harvard Law School where students work in teams.  In my view, our graduates will be MUCH more effective, whatever they decide to do, if we help prepare them to be good team members and leaders.  We should help them to learn skills like how to give feedback, have challenging conversations, overcome team obstacles, leverage and appreciate other peoples’ strengths—skills that are critical in nearly every environment where our graduates will find themselves.

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5 Questions with Dr. Lisa Rohrer

Posted on December 17, 2013 by Elizabeth Moroney

Lisa Rohrer will tell you that she’s “drunk the case studies Kool-Aid.” She has been writing and teaching case studies for years, and as the newly appointed executive director of the Case Development Initiative, she’ll be overseeing the biggest source of case studies at Harvard Law School. We sat down with Lisa to hear more about her experiences in the classroom:

How do you prepare for teaching a case study?

LR: It’s so helpful to talk to others who have taught case studies. If I don’t know a case or have no other experience with it, I  often reach out to colleagues or read teaching notes, both to get ideas as well as a sense of how students typically react to the various issues presented in the case. This is a big reason why we’d like to write more teaching notes for CDI cases—they can help instructors get up to speed quickly on how to maximize the teaching value of the case. The exciting thing about cases is that you never know how it’s going to go, so it’s really helpful to have the benefit of those who have come before.

Teaching with case studies is very different from giving a lecture or leading a discussion. You need to simultaneously engage students in the story and strategically manage the classroom time so that certain teaching goals emerge from the session. I always think about what people walk away with, so they don’t leave saying, “That was interesting but I have no idea what to do with that information. What did I actually learn?”

What other concerns do you have about teaching with case studies?

LR: One of the things you run into danger with, particularly if you don’t have MBA students immersed in the culture of case study learning, is student preparation. If students aren’t prepared for class, the case study is going to fall flat. You might say: “Why is Catherine feeling so troubled in this case?” And there’s just silence, and everyone is looking at each other, looking at their laptops. It’s a really basic question, but that happened to me last week. You always have to be ready for that to be an issue.

In my JD course, I make participation 25% of the student’s grade to give students an extra nudge to engage in the process. As much as I can, I also get them to work in small groups and then report out. It helps in several ways. First, if they have not spent a lot of time with the case, it gives them a chance to get up to speed. Second, if they are nervous about contributing to the discussion, it gives them a chance to test drive their reactions to the case in a safe environment. I find it facilitates discussion.

How do you save a case study when no one has read it?

LR: I posed this question to a professor once. He said, “That’s only ever happened to me once. I told them, ‘I’m going to leave the room. You have twenty minutes to read this case.’” And he said it never happened again.

Sometimes, particularly again, if students are not 100% comfortable with the case discussion format, it’s a question of getting them warmed up. I’ve often found that if I just wait long enough, students start to jump in. When I was met with blank stares at the beginning of the case discussion last week, as the students started to speak after a long silence, I realized that they did have a better grasp on it than I first thought. Sometimes you have to let everyone get nice and uncomfortable with the silence in the room. Once some people start to talk, others will too.

You can also cold call early in the semester, early in the class. The first session is where you set the expectations. If you cold call that first question, it really gets people’s attention. I haven’t needed to do that, but I know people that do, and it works.

Tell us more about your participation policy.

LR: To some professors, the quantity of participation is all that matters; to others, quality—a student only needs a few amazing comments to ace the participation grade. When you’re working with students who are not accustomed to the case method, I think you need to tread carefully here. I don’t particularly care if the students have brilliant insights, I just want them speaking and engaged. I want them to take risks and state their opinion, but I don’t want them to be worried about what’s right or wrong. I am not out there to fail somebody because they don’t understand a case we’re discussing in class. I want to create a safe environment to play with these ideas. This goes to written assignments, too. I ask them to take the concepts and apply them to another situation in real life. I’m looking for an honest attempt more than brilliant organizational analysis.

Do you have any advice for teaching with case studies?

LR: Using cases is a somewhat riskier way of teaching. When I put together a course, I try and frontload with some case studies I know well and am reasonably confident will be successful. If the first few classes go really well, students will give you more latitude when trying new cases later on. The first few times you teach a case, it’s sometimes hard to keep the discussion going for a really long time. A big part of case teaching is knowing where you are in your time schedule. If you’re teaching it for the first time, you’re not as good at following lines of argument down to the end. You have questions you want to ask the class, and you can get through them kind of quickly. For these reasons, it’s a good idea to have some backup ideas for how to emphasize the concepts you are covering and make it real to the students.

Energy level is also really important. Because you rely so much on discussion, you can’t really teach a case by sitting in a chair in front of the class. The best case teachers are moving around, keeping the students’ eyes, ears, and brains busy while facilitating discussion. That means pushing back on students, getting them to clarify their thinking, provoking, getting people to point and counterpoint, pointing out when people have different views and asking them to engage with each other.

I also bring in video clips to mix things up and make the case come alive. Another tactic is to try and connect the case to the student’s experience. “Have you ever seen anybody like this? Have you been in an organization like this?” Suddenly people see that it isn’t just something they’re reading on paper. Getting them to start sharing and talking about real-world implications raises the energy level.

…before we go, can I talk about why I use case studies?

Sure!

LR: I’ve thought about this a lot. I did my training in the business school where case teaching is the norm, but it’s much more unusual in law schools so being in law schools has forced me to really think about the value of this approach. In academia, we have a tendency to break everything out into disciplines, and the learning experience can become siloed. You go from one to the next—corporations, torts, estates. But the world is multidisciplinary. Cases enable you to get into the nuance and force students to grapple with all of these other issues in real situations. You can pull out what you want to for teaching purposes, but cases also enable instructors to demonstrate how various areas of expertise can interact with each other. In life, there’s very little that happens in one discipline. Cases reflect the messiness of the real world by telling stories about real people making judgment calls in real organizations. This makes them both uniquely instructive—and a lot of fun.

 

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Blog Trailer: Critical Decisions in Negotiation

Posted on December 10, 2013 by Elizabeth Moroney

For years, HLS Professor Bob Bordone lamented that there was not an easily accessible, high quality teaching resource for negotiation instructors to demonstrate a range of critical negotiation behaviors to their students in practice.  Bordone explains, “Helping students develop new behavioral moves in the heat of the moment and deepen their capacity for self-diagnosis and reflection is hard work.” Bordone and his staff at the Harvard Negotiation and Mediation Clinical Program use the teaching technique of “fishbowls” in the HLS classroom to great effect—in which the professor moderates a live negotiation, with teaching assistants role playing the negotiation and students stopping the action frequently to discuss the proceedings as they unfold. But when teaching executive education classes where time and teaching staff might be more limited or when teaching to very large groups, it is often difficult to use these live “fishbowls.” Hoping to bring the fishbowl technique to more classrooms, Bordone and colleagues Toby Berkman and Chad Carr spearheaded the Critical Decisions in Negotiation project, now available as a 3-DVD set on the Case Studies portal.

The video blends negotiation footage, reflections from the negotiation participants, and guiding explanations and suggestions from Bordone. Eight pairs of negotiators—real attorneys and contracting professionals from the Boston area—were filmed negotiating “Iqbal’s Big Venture,” an HNMCP simulation about a biotech licensing agreement. To encourage candid proceedings, the participants received factual information and encouragement to treat the simulation genuinely and act in the best interests of their client. The fishbowl-style reflections were filmed after the negotiations ended, so as not to influence the outcomes. The final cuts feature four pairs of negotiators, whose interactions offered the most salient opportunities for analysis and interpretation. Packaged with a detailed teaching note, the video may be used on its own or in conjunction with the simulation.

The DVD focuses on three areas of instruction: openings and process, dealing with difficult tactics, and active listening and effective assertion. Like the fishbowl technique, the video draws out an oft-missed perspective crucial to consider while negotiating: that of the negotiator sitting across the table. Bordone explains: “Students almost always question whether a problem-solving negotiation strategy will work outside of the classroom context when their counterparts may not have been trained in the same methods. They are unsure how to respond to negotiators who appear to be using hard bargaining or other challenging behaviors. They fear that persisting with a problem-solving strategy will leave themselves open to exploitation.” These challenges do arise in the footage, and Bordone directs viewers to responses that successfully counter these obstacles.

The negotiations are unscripted, and Bordone says that watching the negotiators struggle is just as valuable as watching model behavior. For instance, none of the negotiators discussed process in much depth. “We often compare being an outstanding negotiator to being an outstanding batter in baseball,” Bordone explains. “As those familiar with baseball know, some of the best hitters have a batting average of .350 or .400, meaning that they are getting on base by hitting the ball only 35 to 40 percent of the time.” This teaching tool, Bordone says, fosters self-confidence in aspiring or fledgling lawyers: “Seeing law firm partners and well-seasoned negotiating professionals struggle to negotiate effectively makes students realize how much they have learned and how many skills they have already developed.”

For a further look into the making of Critical Decisions, check out Bordone and Carr’s piece in Negotiation Journal.

Have you used Critical Decisions in Negotiation in your classroom? We’d love to hear about your experience! Email us at  

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