November 15, 2015

MEMBER SPOTLIGHT: An Interview with Professor Lawrence A. Hamermesh

For most people, the title “law professor” conjures up memories of theoretical and abstract discussions about the law. Professor Lawrence Hamermesh embodies the opposite of that. “There are those who view the study of law as, to some extent, independent and perhaps even a theoretical exercise or discipline,” he says. “There’s room for people like that, but I’m not one of them.” In part, his approach is grounded in his 18 years of corporate law practice at Morris, Nichols, Arsht & Tunnell in Wilmington, Delaware. He joined the faculty at Widener University Delaware Law School in 1994 and teaches and writes in the areas of corporate finance, mergers and acquisitions, and other business-related areas. Two recent developments in corporate law are finding their way in the classroom, he says – the concept of a flexible contract among the corporation and its stockholders and, because of the recent U.S. Supreme Court cases – the extent corporations can exercise rights and powers protected by the Constitution.

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Why were you interested in studying law?

First of all, I’m flattered that you’re asking me this question because it implies that I can remember that far back. But the best I can remember when I was in college, I saw people who I thought were engaged in policy making, legislating, and political activity. A lot of them seemed to be lawyers. So it seemed like law was a natural way to make a contribution to public service. I’m not sure what I’ve done to that end, but I do believe increasingly that the desire to make a difference and to contribute to public service is really the best reason to study and to practice law.

Before you became a professor you practiced for many years. You were a partner in at a law firm in Delaware. I’m wondering what you most enjoyed about the practice of law.

It must have been something, because I think I hold the world’s record for U.S. law professors’ length of practice of law. I was there for 18 years. I was a litigator and that put me into contact with a lot of really excellent lawyers and people. That was rewarding. That kind of intensive collaboration is something I enjoyed a lot and I miss as a professor.

Let’s say someone is interviewing for a job at a law firm. How do you get a sense of the culture there and if there’s collaboration?

I don’t have a very good answer except keep your eyes and ears open and your antennas up. I know when I interviewed with the firm I went to work for, I was very comfortable from the start.

What did you least enjoy over those 18 years?

With the passage of time, you forget the stuff you didn’t like. But I do remember this, that moving from practice to teaching was a huge improvement in terms of control of my schedule. A practicing lawyer has to respond to client needs. That often means the plans you make can’t necessarily be counted on. That creates problems. It creates problems with family. It creates problems with other clients. So control of the schedule is probably the most difficult part of practicing law.

In 1994, you joined the faculty at Widener School of Law in Delaware. What led to that?

I had been invited to teach as an adjunct at Penn Law School for a couple of years when I was still in practice. I enjoyed that. I happened to live right next door to a professor who taught at Widener Law School. We had kids about the same age. We would meet at the bus stop and I would tell him about my teaching. One day he said there’s an opening for a corporate law professor on the faculty. If I ever had any interest in full-time teaching this would be a good time to apply.

My guess is that you had to take a pay cut.

Oh, yes.

A lot of people would find that difficult. How did you come to terms with that?

I could continue to do what I’d been doing for another 20, 25 years and end up with a net worth that would be several million dollars greater than if I went into teaching. But I was fortunate in that the resources that I’d already accumulated plus the compensation as a law professor were not going to leave me destitute. It was a question of thinking about what my needs were and what we – my wife and I – valued. Yes, it was a big pay cut. The dean at the time said: You’ve got to decide whether or not you’re prepared to accept that kind of pay cut. I haven’t looked back.

What would you change about law school to make the bridge from law school to law firm and the practice of law smoother?

I do think law schools are already doing a great deal. They increasingly recognize that law teaching cannot be purely abstract and theoretical, that students increasingly need what we all call here at the academy “experiential learning,” clinical experience, semi-classroom simulations. Experiences that encourage students to visualize and act as if they are, in fact, already practicing law because that’s what they’re going to do.

There are things about law school that I think fight in the other direction. One of them is a tendency, particularly at what might be viewed as the more prestigious law schools, on the part of the faculty to engage in scholarship that is, to some extent, divorced from institutional legal realities. Favoring techniques of other disciplines like economics and econometrics to the disregard of legal institutions and legal policy. That’s a countertrend that is unhelpful, particularly if the students internalize that and follow it.

The U.S. News and World Report ranks law schools. What value is that to law schools and the profession of law?

It’s a pet peeve of mine. The inputs in the calculation of rankings are heavily subjective and rely on, to a large extent, survey data that are self-perpetuating. In other words, if you ask someone which is a better law school, Cornell or Widener, they’re almost certainly going to say Cornell because they don’t know that much about either law school except they know who’s already showed up in the upper rankings and who’s showed up in the lower rankings.

Rankings actually pervert the competition among law schools by leading to, in a lot of instances, game-playing where one tries to tweak the statistics in your favor in a way that has no real substantive impact on the education that students are getting.

How is a consumer or prospective student supposed to find out about the law schools and what’s actually going on there?

There’s no really great or perfect or all-encompassing answer. But I would encourage students – and they do this to some extent – to visit schools which they might be interested in.

There is another inexorable fact, though, that if I get to go to Harvard or Penn or Yale or Columbia, or some school like that, there is reputational value in that. And when it comes to looking for a job afterwards, for better or worse, justified or not by the education that you get there, that’s a benefit that has to be taken into account. I can’t say that these reputational games are worthless. But I can certainly say with great confidence that they’re overrated.

You are Director of Delaware Law School’s Institute of Delaware Corporate and Business Law. I wanted you to talk about the institute and your role.

There’s no bricks and mortar associated with it. It’s a way of creating an umbrella for the business law-related activities that we engage in here at Delaware Law. We have a long-standing publication, the Delaware Journal of Corporate Law. It’s a leading outlet for publishing scholarship on business law issues. We have the only interschool corporate moot court competition in the country. Schools from all over the nation – California, Wisconsin, Georgia, Florida, etc. – come here to argue current issues of corporate law in a moot court context. That’s always a lot of fun.

We try to develop programming in the form of symposia and lectures on business law issues. We have what’s probably a disproportionate number of faculty members who work in business law-related fields. We’ve established something we call the Transactional Law Competition Honor Society. This was a good year for us. They won their regional competition and went to the national finals.

You were named the Ruby R. Vale Professor of Corporate and Business Law, the first endowed professorship created at Widener. When you received this honor, you talked about how you would like to continue Mr. Vale’s legal scholarship. I wanted to have you talk about how you’ve done that.

A lot of practitioners in Pennsylvania knew Mr. Vale because there’s something called Vale’s Pennsylvania Digest, which is an encyclopedia of Pennsylvania law, an ambitious work. That approach to contributing to legal discourse is one that I admire. An important role of law professors is to advance the knowledge and enhance the practice of law by lawyers and judges.

There are those who view the study of law as, to some extent, independent and perhaps even a theoretical exercise or discipline. There’s room in the world for people like that, but I’m not one of them. I’m much more in favor of the kind of scholarship that is at least aimed at enhancing the usefulness of knowledge and thinking for those who actually practice or administer the law. Our institute’s motto is “corporate and business law scholarship in service of practice,” which I think embodies the kind of approach that I try to take and that I think is faithful to Mr. Vale’s legacy.

When you look at the landscape of corporate law issues today, what are you talking about in your class that you weren’t talking about five or 10 years ago?

A good bit, actually. In the last couple of years there have been two developments that fairly demand to be aired in class and in scholarship. The first is a subject that I recently wrote and published an essay on that came out in the Business Lawyer. It’s about the concept of the corporation’s charter and bylaws as a flexible contract among the corporation and its stockholders.

This is a concept that continues to draw a lot of attention after the Delaware Supreme Court delivered its opinion in the ATP case last year. The core issue is the extent to which corporate organic documents, the charter and the bylaws, can impose obligations on individual stockholders without their specific individual consent. For example, to pay attorneys fees if they are the losing side in shareholder litigation. Or to litigate shareholder claims exclusively in a single designated forum.

This concept of the flexible contract has potentially enormous scope that is only beginning to be explored. Courts and practitioners are increasingly going to have to be forced into thinking carefully about what we mean when we describe the corporation as a nexus of contracts. How seriously do we take that nomenclature and how much of contract law do we import into corporate law?

The second issue comes from the U.S. Supreme Court. In the last several years the Court has had occasion twice to expound on the nature of the corporation as a person, in Citizens United case and more recently in the Hobby Lobby case. The Court has raised questions and to some extent answered them about the corporation’s ability to exercise rights and powers that are protected by the Constitution or by statutes like the Religious Freedom Restoration Act.

In 2014, you were one of four names that the Judicial Nominating Commission gave to the governor of Delaware as a possible new justice for the Delaware Supreme Court. Do you aspirations to be a judge?

I’ve aspired to judicial service for a long time. But at this point, I think it’s likely that future appointments will go to younger lawyers, and deservedly so. It takes energy and long-term commitment. Those who are younger than I am probably have a better claim to being able to deliver on that.

Since 1995, you’ve been a member of the Corporation Law Council of the Corporation Law Section of the state bar. I wanted you to talk about the council and what you’ve been working on.

It’s been an extremely rewarding exercise and sometimes frustrating. To quote the Rolling Stones, “You can’t always get what you want.” And that’s the case in proposed legislation and most anything else. But the process by which the council develops legislative recommendations is really interesting. It’s a great group of people to work with. What’s most noticeable, especially in the last three or four years, is an increasing tendency of corporate law issues and legislative issues to take on political content. It used to be that the field of corporate statutory drafting was a technocratic exercise. But like a lot of other issues in our society, sometimes political controversies creep in.

Nonetheless, I still believe in the long run, the proposals that we develop will best serve the interests of the state of Delaware if they best serve the interest of the nation and the world. They do so best by acknowledging that investors and managers are both indispensable players in the world of corporate law and both of their interests have to be acknowledged and balanced. You can’t just unduly favor one over the other.

You’ve also been a member of the Corporate Laws Committee of the ABA and worked on drafting and revising the Model Business Corporation Act. Can you talk about this experience?

It’s been a real privilege to work with people on that committee. That committee includes many of the finest corporate lawyers in the country, people of great intelligence, broad relevant experience. Just being able to be in the same room and learn about what they encounter and what they think is a real privilege.

The goal is to create a statutory model of corporation law for use by states that choose to enact it. Delaware is not one of them. That’s not because the Model Act is bad; it’s simply because the Model Act is, I think, designed to serve jurisdictions where one is able to depend less on the court system to administer and maintain corporate law.

From 1985 until this year, you were also on the board of directors of the ACLU of Delaware. What does this organization mean to you?

There seems to be a common perception that, gee, if you’re interested in corporate business law, then what on earth are you doing worrying about civil liberties. I very firmly believe that it’s not a conflict. I admit, you don’t usually talk about civil liberties issues in relation to corporate law, except most recently in cases like Hobby Lobby. But civil liberties and the protection of civil liberties are critical elements of what makes our society a civilized society. Having a body of rights that mediates between individual autonomy and collective good is something that has to be carefully nurtured and protected. And sometimes protected at the cost of taking unpopular positions, at least temporarily unpopular. I’ve long felt the ACLU has done that service for our state and the country very effectively and courageously. I’ve contributed a little bit and feel bad I haven’t done more. But it’s been an important part of my life.

You’ve been very active in the ABA. And I wanted you to tell our listeners and readers what’s the value of your involvement with the ABA?

My involvement with the ABA is purely self-serving because I just think it’s irreplaceable. There’s nothing really like it. In terms of keeping up to date with what happens in practice – and as I said before, I consider that a very important part of my role as a law professor – it’s the ABA. For me, the Business Law Section in particular provides that forum for learning and discussion of key legal policy issues.

As an organization, it’s really a critical glue to keep the profession together and to provide the opportunity to communicate with and meet people with similar interests.

You’re also a violinist and play with the Wilmington Community Orchestra of the Music School of Delaware and the Ardensingers Orchestra. How long have you been playing? What’s your favorite piece of music to play?

I’ve been playing since I was seven years old. I’ve played in orchestras throughout high school and college and even law school. I continued to play without too much of a break once I started practicing law and as a professor. It’s part of my mental health regimen. In terms of what my favorite piece of music is to play it’s whatever I’m playing at the moment. Right now it’s Tchaikovsky’s Fourth Symphony.

Is there anything else you’d like to add?

At the risk of sounding chauvinistic, I’ll take that risk and go ahead. I was fortunate to end up practicing in Delaware. I wish I could say that it was deliberate, but it wasn’t. In terms of a bar that is conducive to thoughtful reflection about the practice, public responsibility, civility, and public service, I don’t think you can do any better than the Delaware bar. I’m humble enough to know that it’s not just because we’re all such great people here. The circumstances contribute a lot to it. It’s a small bar. You can’t wantonly go around offending people, especially when you practice repeatedly with them. Especially in corporate law, success in Delaware is often something that comes from contributing to the profession through scholarship or participation in the work of the ABA.

I come from a family of teachers. For me, that kind of atmosphere or environment was particularly inviting and supportive in terms of my becoming a legal professional. Maybe I could have done that in some other jurisdiction. But if so, I haven’t figured out where that would have been.

Thank you so much for your time.