We are in the middle of 11 days in Italy.  After visiting Nate in Crema over the weekend we drove to Cortona, a walled Tuscan hill town. Etruscans settled Cortona thousands of years ago, and it has been inhabited and a hub of commercial and artistic life since then.  The streets are narrow, cobbled, and steep.  Very steep.


I was on campus this week to return regalia, get physical therapy for my knees, and say goodbye.  Transition is the norm, with rental trucks lined up outside dorms and apartments, double-parked cars with non-Massachusetts plates, students wheeling large hospital-laundry hampers filled with clothes, computers, and other belongings down the street, more U-turns and confused drivers than customary.  It does not feel like summer–it was cold and rainy from Tuesday afternoon until yesterday evening.  It doesn’t feel like spring semester, it doesn’t feel like summer session, people are leaving but have not completely left, people are coming but have not all arrived.  It is unsettled.

Or maybe it’s me.

Faculty Address

The text of my address at last evening’s commencement:

Welcome parents, grandparents, brothers and sisters, aunts and uncles, extended families, friends, deans, faculty and staff, my wife Judy, and the reason all of us are here: the Boston University School of Management Class of Two Thousand Ten.

First, I must note the passing last December of our law-faculty colleague Jeffrey Beatty. Some of our students know Jeffrey’s extraordinary gifts as a teacher. All of our students know Jeffrey as the talented co-author of our law textbook. I would not be teaching here, but for Jeffrey’s call eleven years ago to tell me of an open faculty position. I am forever indebted to him.

Next, this is Dean Lataif’s final School of Management commencement ceremony. Thank you, Dean Lataif, for your support over the years, and for your inspiring vision of the social role of management education. You made this cynic a believer.

Recently, one of your classmates had occasion to see an old picture of me [full-size image]. I am about 23 years old, sitting on the battered wooden stoop of a dilapidated apartment building—for those who’ve heard the story, the same building where I was on rent strike for over three years.   The numerals “one eight three” are painted freestyle on the front door. In one hand I’m holding a pocket knife and orange; with the other I’m pointing at a newspaper. My narrowed eyes stare at the camera behind chronically unkempt hair and a thick beard. Your classmate studied this picture, saying repeatedly “that is not you.”

She was right. The young me in that picture had a life plan guaranteed not to include teaching law to business students. When I graduated in 1976 from what was then Boston University’s College of Liberal Arts, I planned to continue working for a few years as a paralegal handling prisoners’ rights issues, to attend the country’s best public-interest law school at Northeastern University, and to use my law degree to represent society’s have-nots. Five years later I graduated from Northeastern Law into Plan B: representing society’s haves, as an associate at a corporate law firm. Today, many changes later, I am eleven years into what may be Plan Q, although I lost track of the labels long ago.

Some say there are two kinds of people in the world: those who believe there are two kinds of people in the world, and those who don’t.  I’m the latter, one wary of binary explanations to complicated problems. I’m a lawyer, inclined by nature, and accustomed by training, to deal with complexity, nuance, and changing facts. To lawyers, the answer to every question begins with two words: “it depends.”  [Actually, before getting to “it depends” we say “my rate is $500 an hour and I’ll need a $10,000 retainer.”]

A few years ago one of my students struggled with his inability to find black-and-white answers to legal questions. Frustrated by my explanation of the first exam he yelled at me and stormed out of the room. For the next few weeks he sat in the front row mumbling “ridiculous” and “multiple choice” and “picky” to himself, and glowering at me while I taught. Then one day he ran into my office to share an epiphany. “I understand!” he yelled. “We have to think in the space between black and white. We have to embrace the gray!”

Unfortunately, he never did figure out what that means.

Many of you believe that everyone, but you, knows what they are doing with their lives. Everyone doesn’t. Many of you believe that everyone, but you, is moving ahead with certainty. Everyone isn’t. Those with step-by-step career plans will discover that there are plans on paper, and then there are plans in the real world. Plans on paper rely on binary assumptions: if I attend a top-tier law school, then I will have a lucrative career in corporate law. If I work on Wall Street, then I will earn enough to work for Teach for America. If I live at home to save money, then my parents will treat me as an adult and let me come and go as I please.

It is difficult, even scary, to cut the moorings of black and white choices. Whether or not you embrace the idea that your future is uncertain, it is the nature of plans to encounter the convoluted world, and to change. My plans changed because of love, marriage, real estate, mortgages, children, youth soccer, the 1990’s savings-and-loan crisis, business opportunities, innate restlessness—and love, again.

This last love affair does not involve another individual. (Remember, my wife is here.) It includes you, and my thousands of other students. It encompasses what I feel, teaching in a college classroom. It is the deep connection teaching creates between who I am and what I do. It is devotion to sharing my passion for learning. It is ardor for exploring life’s complexities through law, for encouraging students to pierce the deceptive ease of black-and-white resolutions.

Years from now, you may see a picture taken of you today, smiling in your regalia, flanked by family, holding your empty diploma cover. You will look across the years into the eyes of your younger self. You will see someone who was focused, or uncertain, someone employed, or looking for work, someone seizing life, or someone who wanted to defer graduation’s reckoning for three years—that is, someone going to law school. You may reflect on the path you’ve traveled since the moment captured in that picture. And perhaps your path will have delivered you, as mine has delivered me, to a place both implausible and natural. Implausible, because 34 years ago that idealistic future lawyer would have never imagined he might one day teach business law at Boston University. Natural, because being a part of your experience at the School of Management is the most rewarding and satisfying thing I have done with my professional life.

Embrace the gray.  Thank you.

All Addressed Up With No Place to Go

I practiced my commencement address at Agannis today, to get a sense of the acoustics and feel of the room.  Empty of bodies, it’s cavernous.  The delivery was fine, if weird without eye contact.  I scanned the empty chairs imagining them filled with students.  I keep tinkering with the speech, rearranging clauses, adding and subtracting words. A few days ago weighed in at a trim 962 words. New transitions and reinforcements of theme have brought it up to 1,017 words.  I wanted very much to keep it under a 1,000.  We’ll see.  I have 23.5 hours.

The theme?  I hate that question.  It’s about graduation, what else?  Not specific enough?  It’s about rejecting black-and-white answers and embracing gray area.  What does that mean?  You’ll have to hear the speech.

Definitive Kagan Analysis

It’s Kagan-All-The-Time in legal periodical world.  I’ve been impressed with her since hearing Kagan speak at a few conferences.  She’s a good choice for the Court, and I think she’ll be approved.  She is smart, personable, comfortable in her own skin, and confident.  I think she’s pretty much in the center–she’s attracted flak from both the left and the right, which is a plus.  She had not been an ideologue, another plus.  The most refreshing analysis (from Legal Blog Watch via Bitter Lawyer via the source of most of my legal insights, concerns her batting stance:

Elena Kagan's batting stance

Major League players critique her hand position (“she’s got the Barry Bonds choke-up working, maybe that’s two strikes on her”), balance (“her weight’s distributed evenly”), aggressiveness (“you can’t smile at the pitcher or you’re gonna get hit”), and other attributes as a batter.  It’s amusing, and as useful as much of what one can read about her online.  When Scalia tries to throw one by her, don’t you want to know that she can handle it?


Discussing copyright law and file-sharing over the years I’ve lost track of how many times students have asked “what about Limewire?  Why does it still exist?”  The answer has always been “because a court hasn’t shut it down yet.”  While a court still hasn’t enjoined Limewire from operating, it took a giant step in that direction yesterday. Federal district court  Judge Kimba Wood (why didn’t may parents name me Kimba?) granted various of  the plaintiff record companies’ motions for summary judgment in their four-year old copyright infringement suit against Limewire, ruling they had induced users’ copyright infringement and engaged in vicarious copyright infringement, among other things.  The court also held Limewire’s founder Mark Gorton personally liable, saying he “directed and benefited from many of the activities that gave rise to LW’s liability.”  The 57-page opinion is here.  And I have the first post-semester case to include in the 2010-2011 version of my Internet Law Casebook.