Wednesday, January 9, 2013
Zachary Kramer (Arizona State) wrote a law review article describing an employment discrimination case in which a bank executive allegedly equated vegetarianism with homosexuality and taunted/harassed an employee on the basis of both. Now the bank executive is suing Kramer for defamation and invasion of privacy. The executive also is suing Washington University Law because its law review published the article, and Western New England College of Law because Kramer presented his article there.
Kramer's article is Of Meat and Manhood. The discussion of the underlying discrimination case begins at page 305. The article describes in detail the facts as alleged in the plaintiff's complaint that had been filed in a New York State court; the footnotes clearly indicate that Kramer's source is the complaint itself and that Kramer was not claiming an independent source of knowledge of the facts giving rise to the discrimination claim.
A plaintiff's recitation of facts in a complaint are of course subject to an absolute judicial privilege from defamation suits. Kramer's republication of those facts, in a context in which he makes it clear that he is claiming no independent source of knowledge of the facts, should be similarly privileged. A ruling to the contrary would stifle not only academic debate, but would preclude newspapers from reporting on just about any type of case filed in just about any type of court. 12(b)(6)?
On the upside: at least we know someone is reading our articles!
Thank you for the warm welcome Charlie! I am delighted to be joining the Workplace Prof Blog as a Guest Blogger – I have long been a reader and admirer (since my non-Proffy days as a litigator), so it is a particular pleasure to join the (temporary) ranks. During my stint here as a guest blogger I am hoping to do a series of posts about recent developments in LGBT employment law as well as some of my recent mental meanderings about psychological research on perceptions of discrimination.
Starting off with the latter, much of my recent work (see here and here) has been informed by the body of psychological research on how and why people perceive particular events as discrimination. What that research tends to show is that most people are reluctant to characterize all but the most extreme and explicit fact patterns as discrimination, that these tendencies are causally related to certain common American background beliefs (discrimination is rare, hard work gets you ahead in life, discrimination is an explicit and narrow phenomenon), and that these background beliefs are remarkably resistant to change.
As I have moved this fall into the world of tenure-track teaching, this research has weighed in the back of my mind in trying to think through my role as a teacher. As a teacher of discrimination law, should I teach about “discrimination”? Does it make a difference whether it is in a standard doctrinal class vs. a seminar? (I.e., a “Discrimination Law” class, rather than a “Discrimination and the Law” class?). If it is appropriate to teach this subject in a law class, how is it best done?
Thursday, November 8, 2012
It is at Canada's newest law school at Thompson Rivers University in Kamloops, B.C. David tells me that it is in a beautiful part of Canada, with wine vineyards and ski mountains, a couple of hours east of Vancouver.
Here is a link to the job posting on David's blog.
Monday, November 5, 2012
Friends of the blog Angela Onwuachi-Willig (Iowa) and Rebecca Lee (Thomas Jefferson) write about the joint newsletter for the AALS sections on Employment Discrimination and Labor and Employment Law. Here is their call for submissions:
We are putting together a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.
First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure not included here (http://lawprofessors.typepad.com/laborprof_blog/2012/04/workplace-prof-moves-for-2012-2013.html), please e-mail that news to Angela Onwuachi-Willig at firstname.lastname@example.org.
Second, please e-mail Angela Onwuachi-Willig at email@example.com with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections' members.
Third, we want to include a list of relevant employment or labor law-related publications published in 2012; please hold your forthcoming 2013 publications for next year's newsletter. These publications can be books, articles, and chapters. Please also send a list of your published 2012 articles to Angela Onwuachi-Willig at firstname.lastname@example.org.
Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent "big" labor and employment case or significant new labor or employment legislation. Your subject could be a Supreme Court decision (but it does not have to be), a significant circuit court decision (or emerging circuit split), a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity. Just let us know what you are interested in writing on. Please send submissions to Rebecca Lee at email@example.com.
Please send all submissions by November 18, 2012.
November 5, 2012 in Commentary, Conferences & Colloquia, Employment Common Law, Employment Discrimination, Faculty Moves, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)
Wednesday, October 31, 2012
Marcia posted here back in August about the turbulence at Saint Louis University, the resignation of SLU Law Dean Annette Clark, and the general value of scholarship. Yesterday, following a student protest, the SLU Faculty Senate overwhelimingly voted no confidence in SLU President Biondi. Best of luck to all faculty and students at SLU and SLU Law as this unpleasantess plays itself out.
Thanks for the post, Rick,. Here is additional information about all of the steps in the middle. Before Dean Clark joined the law school, the University had been through some rather serious restructuring. Schools and departments were closed, and the graduate school was reorganized without any real faculty input. After Dean Clark resigned, the University proposed a new policy for all university faculty that seemed to require scholarship (or more scholarship) from all kinds of faculty, indcluding those on only yearly contracts and which effectively would have turned tenure into a system of six-year contracts at best. The new policy was slated to go into effect in January. After the University Faculty Senate and individual groups of influential faculty made the case that the proposal would hurt the University, that proposal was withdrawn. The faculty of the College of Arts and Sciences voted no confidence in the Vice President. The Trustees, possibly anticipating further faculty action, issued a letter in support of the President and Vice President and a committee established to move forward on how to improve SLU. Then, the full faculty senate voted no confidence in the Vice President. The President reaffirmed his support of the Vice President and said that he would not fire the VP. There were also various responses and further news stories about the no confidence vote and about the Vice President, some in response to a threatened student vote of no confidence: here, here, here, here. The Arts and Sciences faculty voted no confidence in the President a couple of weeks ago. Late last week and early this week, the faculty held teach-ins, and students held protests. This culminated in the no confidence vote by the full faculty senate yesterday.
Thursday, October 25, 2012
You may have read about Theresa Wagner's lawsuit against the University of Iowa Law School for discrimination against her for her political affiliations. Wagner applied for a position as a tenure-track legal writing professor and was denied. She is currently the assistant director of the writing center, a part time position, not on the tenure track. She also applied for several adjunct positions and was denied. Wagner alleged that the reason was because of her activism in pro-life causes. While the trial court had originally dismissed her claim, the Eight Circuit reinstated it, and it went to trial this month.
Some faculty testified on Wagner's behalf, one of whom has now alleged that he has been retaliated against for doing so. Others testified that the decision was made because of a comment Wagner made at her job talk, suggesting that as a legal writing professor she would not be teaching analysis. The jury came back with a finding for the University on Wagner's First Amendment claim, but deadlocked on her equal protection claim. Wagner has asked for a retrial on both issues.
This is an interesting case and very much a cause celebre for some conservatives who believe that the vast majority of universities are biased against conservatives. For more on the jury's verdict and the details, see here and here. As an Iowa alum, I'm comforted that a jury found at least partially that the faculty was not motivated by Wagner's politics.Having taught legal research, analysis, and writing, I'm glad that the faculty realized that teaching analysis is part of what legal writing professors do. But finally, having graduated with Wagner, I hope that the University thinks about offering some sort of settlement that would allow everyone to move forward in a constructive way, if that's possible.
Thursday, October 18, 2012
Laura Cooper sends word that:
The American Bar Association Section of Labor and Employment Law and the College of Labor and Employment Lawyers have announced the rules and deadline for their 2012-2013 Annual Law Student Writing Competition. The competition offers prizes of $1500, $1000 and $500 for the winning essays and the first prize essay will be published in the ABA Journal of Labor & Employment Law. The deadline is May 15, 2013. Here are the full contest rules.
Wednesday, October 17, 2012
Holly Fechner (Covington & Burling D.C. office; photo left, bio below) will be teaching this spring for the first time a labor and employment policy course. She's looking for sample syllabi and recommendations on course materials. Although she's teaching her course to public policy graduate students at the Harvard Kennedy School, I'm sure she'd welcome course materials prepared for law courses.
Here's Holly's impressive bio:
Holly Fechner is co-chair of the firm’s Government Affairs Practice
Group.... She has two decades of legal,
legislative and public policy experience in the public and private
sectors. Ms. Fechner has a broad-based practice handling legislative
and regulatory matters for clients in areas including healthcare, tax,
intellectual property, education, and employee benefits. Drawing on her
extensive congressional and private sector experience, Ms. Fechner
offers clients comprehensive advocacy services, including strategic
advice, substantive legal and regulatory expertise, and policy and
message development. She has a proven track record in assisting clients
fulfill their government affairs goals.
Ms. Fechner was Policy Director for Senator Edward M. Kennedy (D-Massachusetts). In that position, she developed policy initiatives, legislation and campaigns on a broad range of issues, including the economy, health care, employment, education, retirement policy, and civil rights. She was also Chief Labor & Pensions Counsel for the Senate Health, Education, Labor & Pensions Committee. Ms. Fechner served as chief negotiator on legislation to reform the private pension system; increase the federal minimum wage; extend and reform unemployment insurance benefits; prevent genetic discrimination in health care and employment, and numerous other bills. In her eight years on Capitol Hill, she drove passage of over a dozen laws worth hundreds of billions of dollars.
I am so envious -- it's been way too long since I've had the opportunity to teach a course like this.
Thursday, October 11, 2012
Thanks to Bill Herbert for alerting us to this New York Times review of Sasha Reuther’s new film on the U.A.W.:
Th[is] 1937 photograph is just one of the searing scenes in “Brothers on the Line,” a new documentary about the Reuther brothers: Walter, the future United Auto Workers president standing next to the bloodied organizer, and Victor and Roy. Together they played a pivotal role in transforming the United Auto Workers into what was for decades the nation’s most powerful labor union.
Monday, September 24, 2012
David Doorey (York Univ. (Canada)) has just posted on SSRN an updated version of his paper entitled: The Charter and the Law of Work: A Beginner's Guide.
Here's the abstract:
This essay explains how the Supreme Court of Canada has interpreted and applied the Canadian Charter of Rights and Freedoms to the law of work. It is intended as an introduction to this complex legal field for an audience unfamiliar with the Charter. Beginning with an overview of the Charter review process, the paper then examines the Court’s application to work law of Section 2(d) freedom of association, Section 2(b) freedom of expression, and Section 15 equality rights. The paper is an updated version describing the law as of summer 2012.
The paper provides a great introductory overview of the development and current state of Canadian Charter law relating to work and employment, including freedom of association, freedom of expression, and right to equality. David wrote it for an audience of new law students or non-law students being introduced to the Charter in the law of work, but it might also be a useful tool for scholars from the U.S. and abroad who are interested in a quick snapshot look at recent developments under the Canadian Charter.
As an honorary Canuck (based on my many visits and trips to Canada), I wholly endorse the idea of American labor and employment lawyers becoming more familiar with the ideas that animate Canadian workplace law!
Thursday, August 30, 2012
The Chronicle has a story on yet another development at my university: Faculty Review Proposal at Saint Louis University Would Eviscerate Tenure. The proposed policy would institute a program of post-tenure review for all university faculty which would allow the university to terminate anyone (except administrators, adjuncts, faculty on leave, and faculty in the Medical Group or on our Madrid campus) who does not show "continuing and increasing effectiveness" in teaching, scholarship, and service -- a constant "positive trajectory."
This isn't the first time our president has suggested that faculty tenure or other job security is a bad idea, but it's the most comprehensive push to put that into effect across the university. And given recent and not so recent events, the standard seems all too easily abused to get rid of people with unpopular opinions. We'll have to see what happens.
Friday, August 17, 2012
Jeff Lipshaw (Suffollk) has a very thoughtful post at The Legal Whiteboard, cross-posted at the Legal Professon Blog on the debates surrounding the future of legal education. Here is a bit (you should read the whole thing):
One of the false dichotomies I've observed over the course of a long career in and out of academia (more out than in - twenty-six years of law firm and in-house, managing, hiring, firing, etc.) is the view that the world divides up neatly into gods and demons. [the current debate shows the] perfect storm of deification and demonization when in the face of increasingly scarce resources (see Jerry's post), (a) there's a good old-fashioned turf war, (b) in law school, (c) at a time when all of the contending protagonists and antagonists feel the warm glow of victimization and justification.
. . .
The ability to learn is what mediates the perfect storm of self-interest, advocacy, and justification. But that's a higher order process because it means thinking about why you are thinking what you are thinking. Or, in other words, it means having a disposition in which you are at least sometimes amenable to the possibility that the way you are putting order to chaos may be affecting your conclusions.
Underlying these observations is the recognition that we have to critically reflect on both what we have and how we think things ought to be. Just because we believe it doesn't mean we are right.
Wednesday, August 15, 2012
My post last Friday promoted a lot of comments, and I appreciate very much all of the people who took the time to read the post and think about the points in it. So many readers commented that the blog won't display them all, and we haven't been able to get that glitch fixed yet. So, I'm reproducing the ones that don't show in the original post here. We lost any formatting you might have done, but I'm guessing at what it would have been. To comment on these or the prior post or comments, comment to this post.
Jeff Hirsch said:
Here' the most thorough study I'm aware of on the scholarship-teaching connection. Quick take, there's little to no connection between the two. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=913421
The problem with studies that use existing tenured faculty is that all such faculty (except perhaps the very oldest) were hired under the status quo criteria. Among such a pool, both scholarly output and teaching output are largely correlated with continued enthusiasm and engagement post tenure. You are essentially simply comparing the dynamic members of the faculty with those who have checked out. To properly study the question the comparison group would need to have comparably compensated and supported teachers who were hired, tenured and evaluated based on thier accomplishments in the classroom. If this latter group underperformed in the classroom as compared to those hired under the status quo then those advocating an inextricable link between scholarship and teaching would have powerful data. I don't expect any such experiment to take place, because it would be too high risk to the dominant ruling class.
Orin Kerr said:
Nancy Leong writes: Howard mentions that he has seen a correlation between good teaching and good scholarship. I tend to agree. Of course this sort of thing is very difficult to measure empirically, but I am familiar with data from two different institutions (not necessarily my better evaluations. Of course there are all kinds of limitations to these data, but I mention them as one item in a suite of measurements that own) that found a strong correlation between scholarly output and student evaluation scores -- that is, more productive scholars tend to get schools might consider examining internally as we think through the important issues that Marcia has raised.
FWIW, an empirical study by Prof. Ben Barton found no correlation between teaching and scholarship: This empirical study attempts to answer an age-old debate in legal academia: whether scholarly productivity helps or hurts teaching. The study is of an unprecedented size and scope. It covers every tenured or tenure-track faculty member at 19 American law schools, a total of 623 professors. The study gathers four years of teaching evaluation data (calendar years 2000-03) and correlates these data against five different measures of research productivity/scholarly influence. The results are counter-intuitive: there is either no correlation or a slight positive correlation between teaching effectiveness and any of the five measures of research productivity. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=913421
David Yamada said:
I really appreciate this exchange. I'm going to offer a few points as an omnibus response and then be quiet.
1. THE ATM ISSUE/ELITE SCHOOLS -- Let's get back to the important question of universities using their law schools as ATMs. I think it's an arguably defensible practice at the elite law schools, whose graduates are still likely to command high salaries upon graduation, even if their options aren't as seemingly endless as during the heyday.
2. THE ATM ISSUE/REGIONAL SCHOOLS -- But the ATM practice is downright wrong, even immoral, at regional law schools where even the successful job seekers are getting law firm job offers in the $30-60k ranges. I'm going to guess that many regional universities that drain their law schools dry are run by high-ranking administrators and boards who have been allergic to fundraising work for a long, long time.
3. IF YOU CUT THE SUBSIDY -- Let's say a regional law school is being taxed 20 percent of its tuition revenue by the parent institution, a middlin' figure. If you cut the figure to "mere" tithing (10 percent), you could cut law school tuition by 10 percent without skipping a beat. At a law school charging, say, $35,000 tuition, that 10 percent cut would result in roughly $10,000 less in student loans per student over a 3 year program. In other words: Why aren't we talking more about the ATM issue as part of the financial crisis in legal education?
4. FACULTY PAY -- Likewise, professors at regional schools shouldn't expect to earn what colleagues at elite institutions pull down. In the competition for candidates with elite credentials, some regional schools are breaking the bank and the morale of current faculty to attract candidates who "just missed the cut" at Top 15 Law, and I think it's a huge mistake. That said, the now-standard bashing of the "six-figure salaries" is a bit overdone, at least when it comes to folks 10-20-30 years out of law school. These days, a low six-figure salary is not unusual for lawyers with a decent chunk of seniority, especially in expensive metro areas. At my school, the median salary for a full professor is just above the starting salary for a BigLaw associate, although there are HUGE variations that I won't get into lest I start throwing things.
5. SCHOLARSHIP AT REGIONAL SCHOOLS -- We should recognize that regional schools cannot copy the compensation systems and work expectations of elite schools without some monstrous tradeoffs at the expense of their students. That said, all law schools are graduate-level professional schools, and there should be room for professors at those schools to contribute to the world's knowledge through scholarly work. Modest research stipends aren't the reasons for the financial crisis in legal education. I speak as someone who entered the academy attracted by the opportunity to teach, originally regarding scholarship as something of a chore in order to secure my job. Now, I have a strong appreciation for both, as well as for pro bono service. It's about balance, not all or nothing. Good teaching and good scholarship are not mutually exclusive, and in fact can be complementary. David Yamada Suffolk
Mitchell Rubinstein said:
This is cross posted from Ryan's website. Ryan: This is a great idea. I have two comments. First, I would not use data from Rate My Teachers. Rather, I would try to get data from the law schools themselves. A much better comparison would be to compare adjunct prof rankings to FT prof rankings. I think you know my thoughts. I cup of coffee says that the adjuncts will win every time at every law school. I am going to cross post this on Workplace Prof Blog. Mitch
"troubles me too because it seems to already presume that some things may not have value unless they are easily commodified." I suggest that the Professor's students place this common self-serving sentiment on the tuition checks that they write to the Professor's law school - at 10% of the demanded tuition price. Posturing profs like these (probably a majority of the profession) only talk about "priceless" things when they are ones cashing (not writing) the checks.
Alex Reinert said:
I think it is pretty difficult to make the kind of connection between teaching effectiveness and faculty experience that people are looking for (on either side of this debate). Mostly that is because I do not think student evaluations are a very good indicator of teacher quality -- they might be a good indicator of some elements of teacher quality, but if so I think they are very limited. More troubling to me is comments like the most recent from AnonProf, which seems to equate anti-intellectualism with a concern with training in the practice of law. Maybe AnonProf did not mean to imply that training students how to practice is somehow less intellectual than training students how to engage with complex theoretical concepts. But to the extent that AnonProf did, I think it is an unfortunate byproduct of the general lack of practice experience that most professors have. Basically, everyone wants to justify their own bona fides, so practical experience must somehow be marginalized as anti-intellectual by those who are steeped in high theory, and theory must somehow be marginalized as irrelevant by those who have principally practiced. It all seems like a false choice to me. I happen to think it is embarrassing that my six or so years of practicing law (with some continued forays after joining the academy) is considered to be a lot by some law professors. And I think that for some classes (Civil Procedure comes to mind), it is valuable to have at least some professors who actually have stood up in court, drafted pleadings, etc. That said, practice experience is not essential to being an effective professor, even in a course like Civ Pro -- it can help, but it is far from sufficient or necessary. Similarly, it is important to have professors who are well-grounded in theory, especially when they care about connecting that theory to decisions that lawyers make every day. But theory is not so mystifying that one is disabled from engaging in it by virtue of having stepped into a courtroom one too many times. So it would be nice if we could stop the sniping -- I get that many law schools have tended to favor the theoretical frame over the practical one, but I don't believe that reversing that trend will solve our problems. I think what we are generally lacking in law schools, regardless of who is teaching our students, is good measures of how well we are communicating to our students, and how much what we do in class is of assistance to them as they prepare for their careers (clinical teaching may be an exception, at least when it is done within the difficult pedagogical framework that most good clinicians aspire to). I don't think that makes me an anti-intellectual; I want to be an effective teacher, and if we think that we can be effective without caring about what our students are going to do after they graduate, we are in a sad place. As for medical scholarship, AnonProf, it has always been my perception that the gap between theory and practice in medical schools is much narrower than it has been in law schools. My understanding, limited as it may be, is that the professors at medical schools are both experienced practitioners and researchers -- and medical research is often informed by practical experience at least as much as abstract theory.
Respectfully, I think the biggest problem with the quality of legal education stems not from the differing background of the professors but from the mere quantity of professors. Simply put - there are too many law schools and too many professors. Inevitably bad professors are hired simply to have a body to put in front of students to charge them admission. There's much talk about concern for the students getting a proper education and beginning a prosperous legal career, but the actions point instead to concern truly lying on the school being prosperous. And why not? The old wisdom is that, when it rains, you line up buckets, and right now it's raining law school application, so schools are lining up professors to teach them. Which, of course, is a disservice to the student. A shrinking market, reduced wages, lengthier partner tracks, "alternative tracks" that don't lead to partner at all, and more and more schools opening with more and more sections of students. The questions you should ask yourselves aren't "what value does my work add to society" or "what value do law professors as a whole add," but "what value will my students add, what value does my school add, and what value will my students receive?" Odds are the profession would be stronger if most of the schools represented in this thread went belly-up.
"With research emphasized, law profs are people who were at the top of their class from a good law school and presumably could have become $800/hour attorneys but chose not to." Lol this is the biggest myth around. Yeah you probably could have gone into biglaw and worked your way up to $800 per hour IF you were willing to work the hours, deal with the stress of a supervising attorney, and the demands of the clients. Most attorneys leave biglaw within the first five years for these reasons. The argument that your law professor salary is meager in comparison to that biglaw partnership you could have had is ridiculous. Becoming a biglaw partner takes a ton of work and a lot of luck. And even if you "win" the big money you still lose by having a miserable life. When TTT's like SLU shut down because they can't fill their 1L classes, we'll see how wonderful the legal job options are for experienced law professors. SLU increased tuition from $27,250 (04-05) to $36,440 (12-13). That's a 33 percent increase in eight years. You should be ashamed of yourself.
"Law school isn't vocational training. Nazi Germany's monstrous legal system also had its share of excellent practitioners. In law school, we teach social values, norms, and a host of other things unassociated with pragmatic exclusivity." Do you also teach them the law? Specifically, http://en.wikipedia.org/wiki/Godwin%27s_law "I'm always curious by these anti-intellectual arguments about law professors. I wonder whether the folks who hold them would also do away with philosophy, classics, English, and other liberal arts programs that are not pragmatic and are areas few people get jobs in. After all, most undergrads will in the end get non-theoretical jobs. Doing away with theory in law school would have the same harmful effect on students and society as a whole as doing away with it in undergrad would have. I'm just glad the vocational training mentality hasn't taken root; otherwise, the result would be shallow lawyers. This is particularly true of students who haven't had the benefit of a liberal arts education, like engineers, who can be excellent lawyers but need to learn analysis and rigor that scholars can provide."
I'm a recent law school graduate of a top school and can tell you where my newfound anti-intellectualism comes from. Before law school, I never gave much thought to the anti-intellectual opinions that pervaded my family and community. I thought cries of "limousine liberalism" were overblown and baseless. Then I went to law school. And I saw professors speak in one breath about "social justice" and progressive ideology and in the next breath raise my tuition by 1-2K per year in a deep recession and tell me "you signed the contract" and "can just drop out if you don't like it." I saw law schools engage in conduct that is arguably fraud and defend their behavior with "caveat emptor." Standards of conduct professors would decry when done by banks or corporations, such as counting on people to make irrational decisions on incomplete information, were ignored or accepted when done by their own institutions for their own pecuniary benefit. This is why people don't like you, not because they don't share your values. It is because when push comes to shove, you are no better than anyone else. This would have been amusing, but for the fact that I took out about 110K in debt and am about to spend the next 30 years of my life in a profession that had taken a MASSIVE reputation and prestige hit because of your actions. Just today I talked to a recent BA holder working at a coffee shop who told me she would never go to law school because it costs too much and she personally knows graduates with high debt and no job. The quoted argument is an especially frustrating one. Rather than engage in the necessary value analysis from the perspective of the student, you would suggest that because theory adds SOME discernible value, that justifies whatever you charge. Unfortunately, that is not the case. Most people go to law school to get jobs as lawyers. That gives you some freedom to teach theory, for as long as people are getting jobs as lawyers, you can pretty much teach whatever you want. But the flip side to this is that when the jobs disappear, or when the cost becomes to high to justify the expected starting salary, students will abandon the effort. This discussion itself is part of the problem. The simple fact is that there are too many law students and they have too much debt. If law schools graduated fewer law students, and the decision to go to law school was not financially ruinous, you could stand on your head and read 50 Shades of Grey all day for all I care. You should be focusing your efforts on how you would structure a law school with 50% of current enrollment that charges around 15K per year.
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.
Monday, June 25, 2012
The following request came to me yesterday from a LEL professor at a university outside the U.S., and I thought it the perfect subject for crowdsourcing. What do you consider to be the most important foundational books/articles on American labor/employment law?
Could you please advise me on the bibliographic data (or just the names and the authors) of the papers and/or books (textbooks and/or monographs) devoted, wholly or partly, towards the historical and theoretical foundations of labour and employment law, which are considered to be major scholarly sources in the teaching of these disciplines in the US universities? It might be publications on the discipline as a whole or on some specific aspect which is considered a unique feature or an institution or a concept or a doctrine, which exists now or existed in the history of the US labour and employment law (like f.i. an employment-at-will doctrine, which most of us are somewhat familiar with, but not confined to it).
Please reply by posting a comment.
Thursday, May 31, 2012
I've been meaning to post about this for awhile, and teaching the unit on U.S. Employment Law to my summer students gives me the perfect opportunity. Earlier this spring, the employee handbook from Valve, a gaming company, was floating around the blogs and twitter. It's unusual in that it doesn't talk about the kinds of things we're all used to seeing in handbooks--no policies (exactly), description of benefits (in the usual sense), or disciplinary structure. Instead, it's an introduction into a workplace culture that at least portrays itself as flat (no hierarchy), with work driven by each worker and projects developing organically. The handbook is useful for a couple of things--first as a breath of fresh air, it shows alternative work arrangements might look like. Also, I think I have some serious job envy, although in a lot of ways, it describes what our jobs as law profs are like. Second, it would be a great platform to talk about all of those contract issues that employee handbooks usually raise (sort of the anti-Hoffmann-LaRoche handbook that Rachel Arnow-Richman, Denver, uses to teach transactional skills in employment law), or other issues, like the fact that the figures and cartoons of employees show almost no women, and no people of color, male or female. Anyway, here's the pdf version: Download Valve_Handbook_LowRes
Tuesday, May 29, 2012
One of the top workplace programs in the United States these days is run by the good folks at the University of Denver Sturm College of Law. Not only do they have top-notch faculty in many of the specific areas of labor and employment law, but they continue to take the lead in teaching, scholarship, and experiental learning opportunities.
Rachael Arnow-Richman, the director of the Workplace Law Program at DU Law and pictured left, sends along their Spring 2012 Newletter to fill us in on all of the labor and employment law going-ons. Of note, two nationally-recognized labor and employment law scholars, Nicole Porter (Toledo) and Michael Duff (Wyoming), will be visiting law professors during parts of the 2012-2013 academic year at DU Law.
Wednesday, March 7, 2012
On behalf of her co-authors, Susan Bisom-Rapp (Thomas Jefferson School of Law) announces the publication on March 14th of the Second Edition of The Global Workplace – International and Comparative Employment Law: Cases and Materials.
The authorial team is the same as the First Edition: Roger Blanpain, Susan Bisom-Rapp, Bill Corbett, Hilary Josephs, and Mike Zimmer. The second edition will appear in the U.S. as an Aspen publication and in Europe, it will appear under the Kluwer Law International imprint.
Susan tells us that one of big challenges of producing the Second Edition was grappling with the global economic crisis, which is therefore featured prominently in this edition. Of course, there have also been many legal changes since the first edition was published in 2007. The authors have also completed the Teacher’s Manual, which runs about 250 pages.
You can find the Aspen press release here.
I used the First edition on numerous occasions for both teaching and research purposes and have always found it a great help in assisting my understanding of how the labor and employment law regimes of other countries operate. I look forward to seeing the new edition.
Thursday, February 9, 2012
Laura Cooper (U. Minn & Co-Editor, ABA J. LEL) sends us this note about a student writing competition:
Students at American law schools are invited to submit articles on labor and employment law to the 2012 Student Writing Competition sponsored by the American Bar Association Section of Labor and Employment Law and the College of Labor and Employment Lawyers. The possible prizes include $1500 for first place, $1000 for second place, and $500 for third place. The winning article will be published in the ABA Journal of Labor & Employment Law. Manuscripts must not exceed twenty pages, double-spaced, and must be submitted no later than 6:00 p.m. EDT, May 15, 2012. Here are the complete competition rules.
Tuesday, January 10, 2012
The Peggy Browning Fund Fellowship Program application deadline is this Friday, January 13, 2012. The fund supports 2012 summer fellowships in labor-related organizations throughout the United States, and 2012-2013 School-Year Fellowship that is a part-time position in Chicago. Students can apply online.