Charles K. Whitehead is the Myron C. Taylor Alumni Professor of Business Law and Director of the Law, Technology and Entrepreneurship Program at Cornell Law School. Before entering academia, he represented clients and held senior legal and business positions in the financial services industry in New York, London, and Tokyo, including as a managing director of Nomura Securities International, Salomon Brothers, and Citigroup.
What projects or ideas have you been focusing on recently?
Cornell is launching a new, one-year Master of Laws (LLM) in Law, Technology and Entrepreneurship, housed at the Cornell Tech campus in New York City. The Law Tech program is an integral part of the new Cornell Tech academic model, where education and research are closely tied to creating and expanding companies and industries. The Tech LLM has been developed in the same way, designed to give students the skills necessary to become successful attorneys in the technology and entrepreneurial ecosystem. It’s the next step in legal education—experiential learning that embeds students in client teams so that they can better understand the issues their clients face and how to craft legal solutions to address them—in addition to offering cross-disciplinary courses that particularly focus on technology and entrepreneurship. We’ve got a great inaugural class with a deep and broad array of experience and interests. Prospective students and employers can find out more about the program here.
What could lawyers look at in a new way that would benefit their clients?
Technology is ubiquitous, and it can be disruptive. We can expect business models to continue to evolve as technology evolves. What this means is that lawyers who work with tech clients—and, in this age, what client doesn’t have some relationship with technology—need to think prospectively, not simply whether changing business models fit within existing laws, but how laws and lawyering should evolve to reflect new business forms shaped by a greater reliance on technology.
Lawrence Lessig, a Harvard law professor, famously wrote that “code is law.” What he meant was that cyberspace and its freedoms are defined by the software and hardware that permit most users to access the Internet. Coders, in effect, are the new regulators. How they choose to write code, and the values reflected in what they write (or choose not to write), define access to and the freedoms of those who rely on the Internet—essentially, they regulate all of us. This has become even more apparent in light of the ongoing controversy between Apple and the FBI. Lawyers need to understand technology in order to promote innovation, and also to address whether and how innovation can (or should) be regulated.
What one thing about the practice of law would you change if you could?
Cornell’s new Tech LLM is changing how law is taught. Normally when I lecture, I teach using the traditional Socratic method. There is a real value in engaging students through the give-and-take of the classroom. But there is also a value in learning through hands-on experience. Law school clinics have existed for decades, and they are an important part of that process. They let law students better understand how to represent clients. In some sectors, however, perhaps more important is the ability to put law students in their clients’ shoes. Doing so is particuarly valuable in areas that don’t fit a single mold, that are continuously changing, such as technology and entrepreneurship. Understanding the thought process behind technological change, and being able to work with technologists and entrepreneurs, is an important part of an effective law practice in this area.
It became clear during the admissions process that women, among other groups, are under-represented in the tech space. We’ve been able to recruit a number of women into the Tech LLM, but more needs to be done. This is also a gap in practice that, over time, I hope the new Law Tech program will assist in spanning.
What is the most exciting development you have seen recently in the practice of law?
Young capital markets lawyers will tell you how tedious it can be to draft a standard bond indenture. Many of the provisions are mechanical—the issuer’s obligations, what the trustee can and cannot do, and the rights of bondholders. Imagine, instead, having the indenture coded into a program that covers the same set of mechanics but, through code, sets out and implements the rights and responsibilities of the issuer, the trustee and the bondholders. We’re moving in that direction, perhaps more rapidly than many people anticipate. Lawyers may not be the ones who end up writing the code—although that is also changing—but, at the very least, they will need to understand the process by which code is written and, more importantly, the legal effect of a coded indenture. I have no doubt this will become a reality during the careers of those lawyers who are just graduating from law school. It’s an exciting development, but it also requires a new set of skills.
What’s the best new law practice idea you have heard recently?
Law firms and practitioners are becoming more directly engaged in the law teaching process. At Cornell, we have introduced a series of capstone “deal seminars” that permit students to work closely with a senior practitioner in a particular area of practice. The seminars have ranged from financial derivatives, to cross-border trade, to real estate, to private equity, to the law around investment banking, among others. They are not a substitute for the core courses that law students should take. Rather, they build on those courses as a bridge between law school and law practice. There is a real value to this trend. First, it permits students to work directly with seasoned practitioners to a degree not possible when billable hours are involved. Second, training students before they enter practice means they’ll be more prepared when billable hours begin to matter. And, more importantly, it will give them the broad perspective on practice that only a seasoned lawyer can convey. Third, for law firms and lawyers, it is a way for them to meet and perhaps attract aspiring lawyers to their area of practice.
About the Author
Nicholas Gaffney is a member of the Law Practice Today Editorial Board and is a veteran public relations practitioner in San Francisco.