Ethics in Hindsight: The Nation Reflects on Aaron Swartz Case, Prosecutorial Discretion

New Product: Prosecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case (B)

Aaron_Swartz

Aaron Swartz

The B case, now available, is an epilogue to Part A, the main discussion stimulus. Part Aasks participants to consider the prosecutorial decisions and ethics of Aaron Swartz’s case. Swartz was a 24-year-old Internet prodigy, charged with computer fraud for downloading much of the JSTOR online journal database while on the campus of MIT. The prosecution offered multiple plea bargains, but Swartz refused to plead guilty to any felony counts. Two years went by, with pre-trial negotiations escalating and then reaching a stalemate. Just before Swartz’s trial was slated to begin, Swartz committed suicide.

B cases can provide resolution, or chronicle the lack thereof. In Part B, participants read about how the public and the government reacted to Swartz’s death: Twitter uproar, White House petitions, Congressional hearings, legislation proposals, death threats. The B case also discusses the results of MIT’s internal ethics review.

The B case is two and a half pages, short enough to distribute and read in class. Educators can ask: How should the government respond to the citizen petitions to dismiss the prosecutors? How does MIT’s review compare to the class’s assessment of the case? What role should named victims play in the process of prosecution? Is legislation the best way to shape the ethics of prosecution?

Educators may also consider assigning Part B as optional reading after the case is taught in class.

The Aaron Swartz case is available free of charge on the HLS Case Studies website.

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4 Questions with Professor Holger Spamann

New Product: The Battle for Unocal

Professor Holger Spamann

Professor Holger Spamann

Professor Holger Spamann recently published his first case study, The Battle for Unocal, after piloting it in his Corporations course at Harvard Law School. This case focuses on the plight of Unocal Corporation, which faced a tender offer from Mesa Petroleum in the 1980s. In an economic climate of merger mania, the Unocal board was intent on blocking a hostile takeover. Case participants adopt the decision-making role of the Unocal board to navigate fiduciary responsibilities and resolve the hostile takeover crisis. In groups, participants are asked to brainstorm the Unocal board’s options to defy Mesa and its colorful chairman, T. Boone Pickens. Afterwards, the class reconvenes to discuss proposed strategies and address misguided options.

Professor Spamann shared with us his reflections on developing and teaching the Unocal case:

EM: What inspired the case study?

HS: The practice of corporate law is overwhelmingly transactional. Corporate lawyers have to anticipate problems and transact around them. It is difficult to convey that from an appellate case such as Unocal v. Mesa. It certainly does not provide any training of transactional thinking. That prompted the idea of transforming this seminal Delaware decision into a case study by stepping back in time a couple months, before the parties had made the decisions that were ultimately adjudicated by the Delaware court. Giving more background also makes it easier for students to understand what is really at stake. And the personal stories may make it more interesting and memorable.

EM: What challenges and opportunities did the case writing process present?

HS: I had never done it. Fortunately, I could collaborate with an expert case writer, Lisa Brem, and a very fast-learning student, Amanda Ravich.

Another issue was that Unocal v. Mesa was decided thirty years ago. There are much fewer documents available online from that time than there would be today. Moreover, most key figures of the deal are dead, so interviews were out of the question. I think having an important case is worth it though.

EM: How did the students react to the case study? Did anything surprise you in the classroom?

HS: I think the students liked it a lot. Participation was great. Nobody came up with Unocal’s coercive self-tender, but there were plenty of good (and aggressive) ideas.

EM: What, if anything, would you do differently next time?

HS: I am considering spending more than 80 minutes on the case, or at least more time on talking through the students’ ideas. Last time, I gave a lot of time for brainstorming, perhaps too much time. There is only so much you can come up with if you don’t have the complete background.

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5 Questions with Professor Adriaan Lanni

Product: Prosecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case

Lanni

Professor Adriaan Lanni

HLS Professor Adriaan Lanni came to us with a vision for her criminal adjudication class: teach students the ethics and discretion of prosecution. Rather than explain landmark examples of prosecutorial discretion herself, Professor Lanni wanted students to find their own guiding principles, experience the tradeoffs and pressures of decision-making, and form opinions about the prosecutorial system. It was a great opportunity to use a case study.

She chose the case of Aaron Swartz, for which the prosecution faced significant criticism. Aaron Swartz was an Internet prodigy, known for his work as an adolescent on the RSS 1.0 web feed and his early co-ownership of the social new website Reddit. At age 24, Swartz was charged with various counts of computer fraud and abuse after systematically downloading the JSTOR online journal database from the MIT campus. His pre-trial process took years, with multiple plea bargain offers, a superseding indictment, and mounting attorney fees. Swartz declined the plea bargains, preferring to defend himself in court; however, weeks before the trial was slated to begin, Swartz committed suicide.

Professor Lanni shared with us her experiences writing and teaching a case study, particularly such a polemical one, for the first time:

What inspired the case study?

AL: I was teaching criminal adjudication for the first time and wanted to experiment with new teaching methods, including a case study. Studying Supreme Court doctrine does not really get at the policy, practical, and ethical issues that arise in the charging and plea bargaining process. Many textbooks offer a series of very brief fictional problems to cover this material; I thought an in-depth case study might be a good entry-point for a discussion of prosecutorial discretion.

What challenges and opportunities did the case writing process present?

AL: Having a detailed case study made it possible for a much more detailed and nuanced class discussion, and put everyone in the class on an equal footing. If I hadn’t had a dedicated case writer I probably would have assigned a short magazine article, which wouldn’t have provided enough information to really dig into the prosecutor’s options at various points in the case timeline.

One challenge was that many members of the class had strong views on the Swartz case, which made it more difficult to elicit a balanced discussion.

What advice do you have for case writers and teachers in the legal classroom?

AL: A case study involves a significant commitment of class time, and a fair bit of reading for students about a single case. It is important to make sure that the learning goals are well-suited to a case study and that the individual case is rich enough to sustain a 50- to 90-minute class. The Swartz case worked well, but I don’t think I would want to do more than 1 to 2 case studies in any course, like criminal adjudication, that is primarily devoted to studying an area of doctrine.

How did the students react to the case study?

AL: The student feedback was very positive. The students liked the change of pace, and appreciated the opportunity to discuss in detail a case that they had read about in the newspapers.

What, if anything, would you do differently next time?

AL: I would work harder ahead of time to ensure a more balanced discussion. The first time I taught the case, I moved back and forth between inviting student discussion based on their pre-assigned roles (prosecutor or defense attorney) and inviting student comments in propria persona on policy issues. Given how politically charged the Swartz case is, in the future I will probably have the students remain in roles for the entire discussion.

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New Lessons from Bingham McCutchen Case Study

HLS case study “Bingham McCutchen: Combinatorial Mathematics” made the news recently, as law firm Bingham McCutchen faces challenges following a series of partner departures. Citing the case study for its depiction of Bingham’s growth trajectory, the Am Law Daily reports that Bingham posted its worst financial performance in 2013, which some at the firm attribute to contracts guaranteed to attorneys in connection with a 2009 merger with McKee Nelson. According to the Am Law article, guaranteed contracts had succeeded in previous mergers that Bingham pursued, but met opposition when Bingham honored McKee’s closed compensation system for the duration of the guarantees. As financial performance dipped, legacy Bingham attorneys reportedly wanted more transparency about compensation guaranteed to attorneys brought in from McKee. A wave of departures ensued.

The Bingham case study, authored by former HLS Professor Ashish Nanda, chronicles the firm’s series of “combinations,” or mergers, that transformed Bingham from a “middle-of-the-downtown-pack” Boston law firm in the early 1990s to a preeminent international law firm by 2010. While these mergers led to phenomenal growth for Bingham, they also had downsides: there was some attrition, gripes about cultural change, and a nagging difficulty attracting lateral hires. The case ends with the McKee Nelson deal, the tenth merger that managing partner Jay Zimmerman pursued since his election in 1994.

Now, looking back five years, the case is an opportunity to reflect critically on the past and consider strategies for damage control at present. What about the 2013 guarantees was problematic? What risks from its growth strategy surfaced recently and how might Bingham have better addressed these concerns?

Moreover, on June 1, 2014, Zimmerman relinquished day-to-day management of Bingham, ending what one Bingham employee called a “benevolent dictatorship.” How might the firm manage the leadership transition and its institutional culture? Was Bingham’s success a one-man operation, or might this be the change that Bingham needs to survive?

“Bingham McCutchen: Combinatorial Mathematics” is available from the HLS Case Studies website. Free educator copies are available for faculty and staff at non-profit institutions. For more information, or to discuss how to adapt the case study for your academic or professional education needs, contact Lisa Brem, Case Studies Program Manager, at lbrem@law.harvard.edu

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Summer Reading: Crash Course on Flipped Classrooms

Biologists at the University of Washington recently released the findings of a meta-analysis on active learning in STEM (science, technology, engineering, and mathematics) classes: students in lecture classes, across every discipline, are 1.5 times more likely to fail than students in active learning classes, involving discussion and in-class activities.

Similar results, albeit on a smaller scale, have been documented for legal education (see, for example, St. Thomas University). Law schools are experimenting with flipped classrooms: creating online video lectures for students to watch at home and filling class time with interactive, experiential activities. Last week we shared Aaron Dewald’s top five tips for creating online videos. For those considering or planning to flip a course, we rounded up the web’s best lessons about flipped classrooms. While most are not specific legal education, we feel that the lessons learned can be transferred:

Believe It

If you’re not sold on the concept, math professor Robert Talbert counters miscellaneous “flipped learning skepticism”: can flipped classrooms work if students lack access to technology or educators lack technological skill?; is flipped learning just self-teaching?; can students really learn on their own?; and do students want lectures? Likewise, TeachThought’s “10 Common Misconceptions about the Flipped Classroom” shatters the stereotype of STEM teachers creating their own “talking-head” videos because it’s trendy.

Eric Mazur

Eric Mazur

In “Confessions of a Converted Lecturer,” Harvard physics professor Eric Mazur gives a humorous and insightful presentation on his own misconceptions about lecturing and his classroom experience that changed his mind about the value of interactive activities. Mazur developed an early form of active learning known as peer instruction (see page 8) when he realized the shortcomings of the lecture format.

Study It

Recommended by Aaron Dewald, the flipped-classroom guru featured in last week’s post, Richard Meyer’s Multimedia Learning presents 12 principles of learning, abridged here, that can guide educators to craft effective videos. For instance, did you know that “people learn better [from multimedia presentations] when cues… highlight the organization of the essential material”?  To create online videos that meet a foundational level of learning, such as remembering and understanding, Dewald also consults “Bloom’s taxonomy,” which classifies learning into different cognitive processes.

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Bloom’s taxonomy

Rethink It

It seems that nearly every professor who has flipped a classroom has shared a cautionary tale on the web; thanks to them, nascent flippers can avoid the oversights that cause flipped classrooms to fail. Reflecting on their own first flips, Robert Talbert has a better appreciation of time management, communication, “marketing” the teaching method to students, while French teacher April Lynn Burton learned to establish buy-in, emphasize active listening, and keep herself present in the virtual classroom.

Design It

Kelly Walsh of EmergingEdTech.com has published Flipped Classroom Workshop-in-a-Book, a teacher’s guide, complete with exercises, that walks educators through the flipping process (see the Table of Contents here). On his blog, Walsh explains how to repurpose for flipped classrooms some tech tools you use in other settings, find a screencasting tool that fits, and borrow existing educational content for your own class.

Similarly, the University of Central Florida has a soup-to-nuts Blended Learning Toolkit, a website full of information on process and effective practices, model courses, evaluation resources, and more.

Lest we forget, flipped classrooms aren’t just about the online videos. Classroom time needs to be designed thoughtfully to dovetail with online videos and develop the faculties higher up in Bloom’s taxonomy, such as applying, analyzing, evaluating, and creating. Ann Herrmann-Nehdi, a trainer and consultant in Whole Brain Thinking and Learning, explains how to cater to different types of learners, designing a course with a variety of interactive exercises.

Case studies and role plays make a great in-class addition to any flipped course. Want your students to debate the merits of online education? We have a FREE case study for that: MOOCs and Consequences for the Future of Education. Looking for negotiation videos that students can watch outside of class? Consider putting Critical Decisions in Negotiation 3-DVD Set on reserve at your institution.

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Aaron Dewald’s Top Five Tips for Flipping Classrooms

Lessons from CALIcon14 @ HLS

Aaron Dewald has online modules for law school down to a science—literally. Dewald is the Associate Director of the Center for Innovation and Legal Education at the University of Utah’s S.J. Quinney College of Law. He works on TheFirstYear Project, an effort to develop online videos for the 1L curriculum. He’s also a Ph.D. candidate in learning science, and knows the potential and the pitfalls of blended learning. Dewald says, “Knowing a few simple things about what blended learning can and cannot do, as well as how to properly design the online portion, can lead to a very successful blended course.”

Many educators tell us that there’s never enough time in their courses to use case studies – too many cases to review, too much information to deliver. Using Dewald’s blended learning approach, you can be more efficient with how you transfer information to students, providing them with well-thought-out, replayable lectures that help ensure that your students get a well-structured baseline of knowledge.  This may free up classroom time for more participant-centered learning, like case studies and problem solving workshops.

imagesLast month, I sat in on Dewald’s presentation at CALIcon, the Center for Computer-Assisted Legal Instruction’s annual meeting of the minds. Here are Dewald’s tips for creating online modules that work:

  1. Combine the verbal with visual. With more retrieval cues, students are more likely to remember the information due to a more robust “encoding.”
  2. Less is more. Text and talking use the same “verbal” channel of processing information, straining the students’ cognitive load. With voiceovers, it’s better to minimize the words on-screen. Likewise, superfluous content or attention-grabbing animations can distract from the key information.
  3. 10 minutes, max. Short videos encourage brevity, minimize distractions, and hold students’ attention; often they’re easier to produce as well. Break complex lessons into multiple short videos.
  4. Write a script. Many educators lecture off the cuff, but multimedia presentations need scripts to be coordinated, concrete, thoughtful, and concise. According to Dewald, novices need these features to build a strong, stable knowledge base.
  5. Talk like Toy Story. Online lectures need animated narrators, so use more inflection. Don’t worry, says Dewald, the finished product sounds less ridiculous than one might think. Learners can tell when you’re bored, reading, or both.

A version of Dewald’s CALI presentation, an example of online learning in its own right, is available on YouTube. Dewald also explains the learning science behind effective presentations and the project timeline for creating online modules.

TheFirstYear.org is looking for law school professors who want online modules for their first-year courses. You write the script, and TheFirstYear Project will create the video. Email aaron.dewald [at] law.utah.edu for more information.

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The Problem Solving Workshop: A Video Introduction

by Lisa Brem, Case Studies Program Manager

The Problem Solving Workshop (PSW)—a mandatory first-year course at Harvard Law School—has been successfully integrated into the curriculum for five years. The course is a major departure from the rest of the first-year doctrinal courses, focusing instead on hands-on participation from students and community practitioner volunteers, team projects producing legal work product, and playing various legal roles.  The course expands students’ ideas of what it means to be a lawyer. Students consistently report that they appreciate the opportunity for hands-on work and meeting with active practitioners.

The Case Studies Program has produced a short video featuring Professors Todd Rakoff and Joe Singer, authors of several PSW case studies and creators of the course in its current iteration. Professors Rakoff and Singer discuss how PSW came to be, how it addresses shortcomings in legal education, their experience teaching the course, and insights about their favorite case studies, such as Landlord’s Dilemma and Medical Stent. The video also includes interviews with students about their experience in the course and footage from PSW classrooms.

The PSW format has inspired other HLS professors, including Jonathan Zittrain, John Palfrey, Charles Nesson, and Susan Crawford, to expand into “advanced” problem solving courses in Internet and Society, Intellectual Property, and Cyberlaw.

PSW case studies are very low cost or free and available to the public on our website: Harvard Law School | The Case Studies. Look for them under “Workshop-Based Case Studies.”

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3 New Teaching Notes Available, In Time for Fall Classes

Looking to teach decision making, leadership, copyright, or problem solving this fall? We just released three new teaching notes, free for educators, for-profit trainers, and staff at non-profit or educational institutions:

Richard Goldstone

Richard Goldstone

Reputation, Credibility, and the Goldstone Report (A) and (B), a discussion-based case study from Professor Philip Heymann, teaches students how to lead and discern truth during controversy. The protagonist, Jewish South African jurist Richard Goldstone, was tasked with investigating human rights violations of the Palestinian-Israeli conflict, to the scrutiny of the international community. The teaching note outlines four “discussion pastures”: the boundaries between law and politics in international conflict, the intentions behind intervention, Goldstone’s fact-finding process and judgment, and the ways a leader navigates stakeholder groups and competing objectives. Ultimately, participants consider: can fact-finding ever be objective?

Goldstone Teacher’s Manual:

For Educators/Non-Profits

For For-Profit Trainers

DSK

Dominique Strauss-Kahn

Cyrus Vance and Dominique Strauss-Kahn: Dilemmas in a High-Profile Prosecution (A), (B), and (C), a discussion-based case study also by Professor Heymann, chronicles the prosecutor’s challenges during the sexual assault allegations against Strauss-Kahn, Managing Director of the International Monetary Fund. The teaching note explores discretion and the politics of prosecution, the repercussions of prosecutorial decisions, and the method of gathering evidence and hypotheses. Can prosecutions be unbiased? Should they be? And how should prosecutors judge themselves ethically? The discussion questions posed in the teacher’s manual not only allow participants to consider and articulate their own ethical standards, but also walk through procedural strategies for building a strong case.

DSK Teacher’s Manual:

For Educators/Non-Profits

For For-Profit Trainers

JoelM_copyrightChing Pow: Far East Yardies!! is an advanced problem solving workshop case study from Professor Charles Nesson. The case itself is about a filmmaker’s international quest to legally use an orphan work, but the teaching note outlines activities for a two-day or four-day workshop exploring the possibilities around a public realm registry of orphan digital works, with the Creative Commons framework as a potential model. The teaching note provides discussion questions about derivative works, the protagonist’s options, stakeholders in the copyright regime, and the relationship between U.S. and international copyright law; research assignments about Creative Commons and international orphan works statutes; policy assignments proposing new models for copyright law; and an in-class activity to build consensus around the class’ different policy recommendations.

Ching Pow Teacher’s Manual:

For Educators/Non-Profits

For For-Profit Trainers

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Crossing the Line: The Dos and Don’ts of a Cross-Deputization Agreement

New Product: The Case of Cross-Deputization

Professor Joseph Singer’s new problem solving workshop case, “The Case of Cross-Deputization” teaches first-year law students the basics of planning transactions and resolving controversy. In the simulated case, the conflict between the legal authority of the Spokane Tribe and of neighboring Lincoln County has made law enforcement difficult on the reservation’s borders, particularly when it comes to stopping drunk drivers. Tribal officers cannot pursue drunk drivers once they leave the reservation, and thus would like the authority to engage in “hot pursuit.”

Participants adopt the positions of either the Lincoln County Sheriff’s Counsel or Tribal Counsel to negotiate a cross-deputization agreement. The parties must reach a compromise regarding hot pursuit off of the reservation, ancillary areas of shared law enforcement, and the related costs and waivers that such a partnership entails. There is significant pressure to reach an agreement: a Washington state statute mandates an arbitrated cross-deputization if the parties cannot agree. However, the tribe has sovereign immunity, and cannot be forced into an arbitrated agreement without its consent.

Professor Singer wrote the case to fill a need in the HLS Problem Solving Workshop curriculum. “The case involves a contract negotiation between sovereigns, something that is in some ways similar and in other ways very different from business or family contracts,” said Singer. “It also involved settlement, not of a lawsuit, but of a problem created by applicable law setting baselines in a manner that interfered with law enforcement goals of both sovereigns. It also shows how negotiation can be an exercise, rather than alimitation, on sovereignty.

Like all Problem Solving Workshop cases, The Case of Cross-Deputization involves client interactions. “The case gives students the opportunity to present the agreement to the client and explain how it meets the client’s goals, what was worth giving up to achieve those goals, and what goals could not be attained. It put the students in a role as government lawyers advising clients, who have obligations to promote the public welfare, rather than lawyers who serve private clients, whose goals are somewhat different.”

The case teaches participants the fundamental best practices for a negotiation:

  • DO consider substance, process, and relationship. Skilled negotiators take as much care with the logistics of the negotiation as they do with the outcomes–especially when negotiating a partnership. By establishing fair norms and a problem-solving, cooperative dynamic with the other side, the negotiating parties foster impartiality, legitimacy, and buy-in.
  • DON’T just focus on the best agreement for your party. DO focus on the best alternative to a negotiated agreement (BATNA). Novice negotiators may not appreciate the power of failing to compromise. There is no need for a party to settle for less, if it could walk away to a more attractive outcome.
  • DO respect authority. Autonomy and status are among the core concerns that negotiating parties seek to protect; conflict arises when this basic humanity is disregarded. In The Case of Cross-Deputization, participants learn the importance of respecting tribal sovereignty. “The case study makes students aware of a ‘third sovereign’ or set of sovereigns that coexist with the state and federal governments but about which many students are unaware,” said Professor Singer. “The case ensures that the students do not emerge from law school ignorant of the government-to-government relationship that exists under federal law between federally-recognized Indian nations and the United States as well as the complicated jurisdictional relationships between Indian nations and state governments.”
  • DON’T judge the other side by its cover. Focusing on first impressions can ruin a negotiation. The positions each party brings to the table reflect a set of interests—usually the most obvious demands that would meet a set of underlying interests. The interests are the underlying needs, wants, goals, and worries. When parties focus on their different positions, it can seem like there is little common ground to work with; however, when parties understand their different interests, they can craft creative solutions that dovetail differences.

Through this role play exercise, students integrate these lessons and apply them to future negotiations. “The Case of Cross-Deputization” and related teaching materials are available on the Case Studies website.

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Negotiating Value: What is Art Worth?

New Product: Set Sale!

by Amanda Reilly

The new role play Set Sale! debuted this spring in the HLS Negotiation Workshop, receiving an enthusiastic response.  Chad Carr, author and lecturer on law at HLS, reported, “Students really seemed to enjoy negotiating the case.  There was a lot of energy in the room and students were very animated in their assessments of the climbing or plummeting value of the artwork, depending upon the side they represented.”

Carr wrote Set Sale!  to be the inaugural exercise in the Spring Negotiation Workshop. It exposes students to core concepts in negotiation theory and negotiation role-playing techniques and provides a foundation for the rest of the essential skills taught during the Workshop.

In determining the current context for the case, Carr explained, “In both law school and executive education settings, I wanted the case to have a relatable context. That was part of the reason for writing about art.  The sale of art looks largely the same around the globe.”  Set Sale! involves a law firm that is downsizing its physical space and as a result selling some of its art works. One piece in particular has recently received media attention because it was widely adopted as an emblem of solidarity and hope following a terrorist attack off the shore of Massachusetts.

Zone of Possible Agreement

Zone of Possible Agreement

One of the main learning goals is to understand the difference between value creation and value distribution.  The ambiguity of the value of the art creates “a large zone of possible agreement (ZOPA) between the parties making distribution a key challenge,” said Carr. “However, there are also opportunities for both parties to create value in the deal, rather than just distribute value.  Those opportunities include the allocation of transportation and art storage fees, as well as finding ways for the museum to help promote the law firm’s new brand.”

Carr also added, “We want student-negotiator pairs to come to agreement on a variety of outcomes.  Seeing that there is a range of potential outcomes does two things.  It primes students to think about what constitutes a good outcome.  It also forces them to challenge their assumptions—for example, ‘Was I really in a weak position?’ or ‘What were the factors limiting my counterpart?’”

Set Sale! also allows students to experience firsthand the principal-agent problem. During the negotiations, students must disentangle their client’s best interests from their own goals and needs.   Carr reflected, “Students on both sides of the case take on the role of attorneys representing a client.  Since this is a law school, we want students to start engaging with some of the principal-agent tensions that arise in any representation.”

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