Friday, August 10, 2012
UPDATE: There are so many comments that the blog hasn't been displaying all of them. To comment on this post or its comments, click here to the Comment Glitch post.
It is extremely rare that we engage in navel gazing on this blog, although we do talk about university and law school employment issues on occasion. Each one of us also rarely promotes our own institution or own work, instead leaving it to our co-editors or to others entirely, but I'd like to make an exception to those cultural norms given some of the extraordinary things going on connected with people at my own institution, Saint Louis University School of Law, or SLU. And before I begin, please note that the contents of this post reflect only my own views, not those of my co-editors, my school, my colleagues (all of whom are fabulous teachers, scholars, mentors, administrators, and people), or our wonderful students and alums (who are smart, hard working, and will make or already are great lawyers).
I'm sure many of you have read about how our Dean, Annette Clark, resigned and you may also have read the letters she wrote to President of the University and to us, and his response to us and appointment of our new Interim Dean -- or at least read about them. You may also have read, like I have, some of the reactions to these letters and actions. This controversy is not the only one that touches people connected to SLU. Jeff just posted about the recent Sixth Circuit case concerning my colleague Lynn Branham, holding that tenure provided no job protection unless it was defined in the annual contract between the faculty member and the school. Both of these developments show us that even those with tenure in powerful positions don't necessarily have any job security or protection.
I'm not going to talk about the details of these events or the letters related to Dean Clark's resignation (I have strong feelings, but this is not the place to discuss those), but I do want to have a conversation (or contribute to an ongoing one) about how it all fits into bigger changes and what they might mean.
One of the most compelling pieces of this for every law professor, student, or person thinking about going to law school is the way these events are seen as having some relationship to the problems law schools and universities face right now: the high cost of higher ed. and especially law school, declining enrollments, declining financial support from sources outside of tuition, and the "worth" of earning a law degree. Above the Law (I'm sorry, I can't link to it because the comments give me Auto-Admit flashbacks) saw the resignation as resistance to university efforts to use the law school as a cash cow, and much of the debate in the comments there (shudder) and at least some to Paul Caron's initial post have focused on whether, to the extent the fight is over money, the money is for the benefit of students or faculty.
Implicitly, and sometimes explicitly, the message on one side is that if the money was to be spent on research stipends for faculty, that expenditure is not legitimate and should not be made by the law school (or the university) in the first place. Sometimes that's expressed as skepticism that any research actually is done, hostility that it should be separate from and in addition to the "regular" salary a professor earns, or hostility to the value of research period. In the events at SLU it has at least partially been suggested that those who engage in scholarship or encourage students to do so are not teaching students what the students need to learn. On the other side, there seems an unspoken assumption that research is not only a legitimate part of what a law school should do, but that it's imperative to engage in a lot of it. These themes resonate with the larger scamlaw narrative so popular at the moment -- and no links here either because I don't want to promote that narrative -- which has us "stealing" from students for our own selfish desires, or the more measured critiques by people who call our attention to the problems with the current "business model" of the law school.
Absent from all of this debate, at least what I have seen of it, is much real progress with the pressing issues that we individually and institutionally are all struggling with. In particular, what it is a law school should be doing for students, what they need to know or have mastered by the time they leave, who else is served who wouldn't be if we didn't exist, and how to structure it all to serve those constituencies. And of course I'm thinking of many of these things in employment terms (like job security and status) as well, considering that it's the kind of workplace I am in and because that's just how I see lots of things (hence the whole Workplace blogging). Increasingly, I'm frustrated by what looks like the same old dualistic tropes --teaching v. research, skills v. doctrine, doctrine v. theory, academic v. professional school, liberal arts v. technical education, tenured v. contract, at-will v. job security -- without digging into these labels or categories in the first place. And the rhetoric that puts what we do in business terms -- business model, deliverables, outcomes, opportunity costs, returns on investment -- troubles me too because it seems to already presume that some things may not have value unless they are easily commodified.
Anyone who has talked to me recently is already tired of hearing me say it, but I think each of us and each of our institutions needs to be able say what students and the public gain from what we provide and how. Fundamentally, if we can't articulate that, then why are we doing it? The next challenge will be to make our explanation explicit enough -- devoid of jargon and assumptions as insiders -- so that someone outside of our environment will understand, but we can't hope to get there if we don't start internally.
Here's my take. I think there is great value in legal scholarship. The public benefits by getting legal and government structures that make real people's lives better. Students benefit from the scholar's ability to turn chaos into order and communicate both the chaos and the order to someone who hasn't done the same work. The students have to start with order and see how it is constructed from chaos and how to explain that before they can learn to do the same thing, which really, is what lawyers do for their clients.
Teaching, of course, is vital, but teaching requires learning, and learning is not something that occurs within the teacher. Learning occurs inside the head of the student, and students have to learn, not just information, but more importantly to perform a process that is fluid and adaptable, and to master a number of difficult skills, internal and external. We can't just open the top of a student's head and pour in the learning. Most of the law professors I know and have worked with take this very seriously and constantly work at ways to accomplish this for their students who have different needs and abilities, but we don't talk much publicly on how we do that.
Finally, there are many ways in which different members of the law school community contribute to teaching and mentoring students, serving the public, and contributing to the growth of their professions. Those need to be identified, explained, and valued too.
I'll end here because I've rambled quite enough, but I see this debate also fitting into other debates right now, some of which only seem to have one side:
- the view that elementary and high school teachers are the enemies of students, obstacles to their education and lacking any expertise on how to help kids learn or what they should master;
- the debate over public employee pay and benefits;
- the debate over unions in both the private and public sectors;
- the debate over the worth of higher education;
- the push to marketize everything.
I'm sure I'm missing some, but in all of these debates, there are assumptions about value (to whom), cost, and support that are unspoken and unexamined.
Kendall Issac (Appalachian) posts on the recent Sixth Circuit Branham case on his Workplace Dignity blog (it includes a link to the decision). The basics are that a tenured Cooley law professor was fired, allegedly without just cause. Kendall provides a good description of the case, as well the procedural and remedial issues at stake (e.g., Cooley didn't hold a required faculty vote on the firing until 3 years after it occurred). But I wanted to address the first part of the decision, in which the Sixth Circuit holds that "tenure" doesn't necessarily mean continuous employment with just cause protection.
The basis of the holding is the usual language that the employment contract rules the day. That contract incorporates the ABA's tenure policies and language stating that "[n]o tenured faculty member shall be dismissed . . . prior to the expiration of the term of his appointment, except for good cause shown and in accordance with the following procedure." Others know more about the ABA's policies, although I have doubts whether the ABA would agree with the court's interpretation that the policies only make continuous employment optional for tenured faculty (if I remember correctly, some deans even tried to push language to this effect a few years ago, without success). As for the quoted language, the court seems to rely on the fact that Cooley officially had faculty on one-year terms--hence no continuous employment.
As most readers are well aware, courts bend over backwards to avoid continuous just cause employment contracts all the time. But the court's disregard for the normal meaning of "tenure" still strikes me as troublesome. Before this case, did anyone at Cooley--administration or faculty--really think that tenured faculty could be fired at will at the end of any given academic year? I doubt it, or else what's the purpose of tenure? I know that at-will is king, but I think there's a good argument to be made that any reasonable interpretation of "tenure" means some form of continuous employment.
This brings me to another point: why did Cooley push this argument? In addition to possibly having problems during their next ABA re-accreditation, the school basically just spent a lot of time and money to "detenure" its faculty. I've got to imagine that Cooley will either change the language of its policies to make its tenure sound more like real tenure, or they will be facing a far more disgruntled group faculty.
Perhaps a good reminder to check your school's tenure policies . . . .
Thursday, August 9, 2012
Our own Paul Secunda has just posted on SSRN his article, "The Wagner Model of Labor Law is Dead, Long Live Labor Law!" The abstract:
The Wagner Model of labor law in the United States is dead for all intents and purposes. To invoke the metaphor of Tommy Douglas’ Mouseland, the worker mice in America lose ground in labor relations as they continue to elect corporate cats from both major political parties to represent their interests. We should not be surprised that these cats are interpreting labor laws in a manner that favor cats and not mice.
Putting the Mouseland metaphor to one side, the death of the Wagner Model has long been heralded in this age of the far-flung global economy and increased out-sourcing of American jobs by the increasing lack of meaningful voice for American employees in both the private and public sector workplaces. This difficulty of workers having themselves heard through the traditional means of collective action stems from their inability under the Wagner Model to engage in effective organizing, collective bargaining, or concerted activities for mutual aid and protection. This state of affairs, in turns, stems from the anachronistic and ossified nature of the National Labor Relations Act, due to the political stalemate that has left the law basically unchanged in its current form for nearly fifty-five years and unresponsive to dramatic changes in the labor, capital, and products markets.
Rather than embracing either the Employee Free Choice Act or the new governance approach to labor law, and after dismissing the likelihood of the creation of an American labor political party in the short-term, this paper advances three proposals for increasing collective action and worker voice in the American workplace: (1) use of pre-recognition framework agreements between employers and unions; (2) adoption of the Simple Union open-source web platform to encourage more small-scale organizing and bargaining; and (3) consideration of Ghent System approaches to labor relations with its focus on mutual aid and voluntarism. Alone or together, these three alternatives to the Wagner Model would go a long way to start the process of providing workers in the United States again with meaningful voice within the workplace.
In all, this paper has taken the position that the Wagner Model of labor relations law is irretrievably broken and should be abandoned. Yet, it is not time to give up on the promise of collective action as a way to promote worker voice and participation in the workplace. Rather, it is time to consider alternative and heterodox approaches that provide meaningful opportunities for other forms of collective action and worker voice in the American workplace. Such voice is needed now more than ever to push back against the rising tide of income inequality and excessive corporate influence over government in the United States.
A very timely piece that's well worth the read.
Susan Grover, Sandra Sperino, and Jared Gonzalez have just posted a free statutory supplement for employment discrimation law courses. They, of course, have their own textbook at that site, but free is free. As noted by the authors:
In an effort to diminish the costs of law school for students, we are making available a free statutory supplement for Employment Discrimination courses. The statutory supplement provided below contains relevant portions of Title VII, the ADEA, the ADEA, section 1981, section 1981(a), the Civil Rights Act of 1991, the Congressional Accountability Act, the Equal Pay Act and Fair Labor Standards Act (provisions related to employment discrimination), the FMLA, the Federal Arbitration Act, GINA, IRCA and the Portal-to-Portal Act.
Eric Voigt (Faulkner), has just published his article, "A Company's Voluntary Refund Program for Consumers Can Be a Fair and Efficient Alternative to a Class Action" in the Texas Review of Litigation. Although the article is targeted to consumer issues, Voigt notes that it's also applicable to the employment relationship. The abstract:
Consumer product companies are establishing internal programs where they are voluntarily compensating consumers for damages caused by their products. When a company implements a refund program in response to a threatened or pending class action, may federal courts rely solely on the voluntary refunds in denying class certification? The short answer is yes.
This Article analyzes Rule 23(b)(3) of the Federal Rules of Civil Procedure and the requirement that a class action be "superior to other available methods for fairly and efficiently adjudicating the controversy." The Article argues that courts must compare the superiority of a class action not only to judicial procedures but also to a company's voluntary refund program. This Article also contends that a court must deny class certification when a reimbursement policy is fair and efficient. These arguments are strongly supported by the Advisory Committee Notes to the 1966 amendment to Rule 23, commentary by two former members of the Committee, the original purpose of the superiority requirement, and courts' and commentators' initial interpretations of the 1966 amendment. Last, the Article discusses what features a refund program must have to be a fair and efficient alternative to a class action.
Surprisingly, no federal court or scholar has analyzed the history or purpose of Rule 23(b)(3) as it applies to voluntary refund programs. Further, the relevancy of a refund program to the denial of class certification has been addressed in only one article (which took an opposing view) and by only a few courts.
Check it out.
Thanks to Laura Cooper (Minnesota) for bringing to my attention the recent decision by the National Labor Relations Board in Latino Express, Inc., 359 NLRB No. 94 (July 31, 2012) (scroll down to decision).
The Board decided not to decide two issues raised by the Acting General Counsel and instead invited "all interested parties" to file briefs on two issues regarding awarding backpay to discriminatees:
Should the Board routinely require a respondent to:
(1) submit the appropriate documentation to the Social Security Administration so that when backpay is paid, it will be allocated to the appropriate calendar quarters; and/or
(2) reimburse a discriminatee for any excess Federal and State income taxes the discriminatee may owe in receiving a lump-sum backpay award covering more than 1 year.
Briefs are due by October 1, 2012.
Tuesday, August 7, 2012
It looks like I got back to the US just in time to catch up on some of my favorite things: football and gender segregation in the labor market. My usual source for all things NFL was with me out of the country, and so I missed news about the lockout of NFL officials and the decision of the league to go with replacement refs. One of those replacements is a woman, Shannon Eastin, who will serve as a line judge in the upcoming Packers-Chargers exhibition game this Thursday. This will be the first time a woman has officiated a professional football game. Way to break the turf ceiling! For a good source on the lockout, replacements, and Eastin, see the SBNation blog on the subject, here.