Susan Leimer and Hollee Temple have recently posted on SSRN their article Did Your Legal Writing Professor Go to Harvard?: The Credentials of Legal Writing Faculty at Hiring Time.  It is forthcoming in our very own University of Louisville Law Review (formerly Brandeis Law Journal).

It was heartening to read about how well-qualified our nation's legal writing faculty is.  Like me, 28% of legal writing faculty hold a degree from a top-twenty law school, 67% were on law review, over a third clerked for a court, over a third practiced in more than one type of law practice, and over half have more than three years of law practice experience.

If you are interested in this topic, see the article to learn more about the methodology used by the authors and about how the credentials of legal writing faculty compare to those of doctrinal faculty.  A follow-up study that uses a large enough random sample of legal writing and doctrinal faculty to ascertain statistically significant differences, delves into more detail on how credentials of legal writing professors compare to doctrinal faculty at schools of comparative rank, and sheds light on the credentials of those legal writing professors who are tenure-track or tenured would be interesting.

 

Here is a question raised by Mister Thorne after reading my article on Editing Tips for the Busy Attorney.

 

Question: why not also advise lawyers to have their work reviewed by 

editors, folks trained to spot those embarrassing (and potentially 

costly) errors that attorneys (like all writers) sometimes make?

 

I am interested in hearing your responses to this question.  I will forward them on to Mister Thorne.

 

I believe that good lawyers are good editors.  Thus, lawyers should be trained to spot writing errors.  And, as suggested by my article, each lawyer should use reliable tactics to edit her own work. 

 

Of course, even a well-trained editor may have difficulty spotting her own writing errors.  This is why I suggest having a colleague or someone else review your legal writing. 

 

I think that if expenses warrant paying someone else to review the work, then an editor could certainly be one of those a lawyer has review the work, especially if the work is of a non-technical nature.  If the editor is not trained in the law, the authoring lawyer can simply review any suggestions made by the editor in the same manner she would review any edits by a non-lawyer.  There are, of course, some legal-writing experts who are in the editing business.  I personally know Kiko Korn  and Cassandra Hill and would certainly consider using their services if expenses allowed. 

 

I recently read Benjamin I. Sachs, Labor Law Renewal, 1 Harv. L. & Pol'y Rev. 375 (2007).  In it, he explores some of the ideas earlier discussed by Cynthia L. Estlund, in The Ossification of American Labor Law, 102 Colum. L. Rev. 1527 (2002) and nicely summarizes the current state of labor law.  Sachs proposes that a dynamic reordering of labor law is in process.  He describes three new legal channels for employee collective action: private agreements governing the right to organize, state and local regulation, and federal statutes other than the National Labor Relations Act ("NLRA").    Sachs proposes "that each of these three decentralizing trends constitutes a form of experimentation with the optimal way to restructure American labor law."

As to state and local regulation, Sachs discusses the trend by states to assume the role of employer and collective bargaining partner for "atypical" workers, such as homecare workers.  Sachs also discusses the ability of local entities to mandate employment terms when acting in a proprietary capacity.  While the NLRA generally preempts the ability of local entities to regulate in the area of labor law, local entities can mandate employment terms when acting in a proprietary capacity.

I believe significant labor law reform is needed and have several concerns about the three new channels of experimentation.  None of my concerns are likely novel, nor do I have the impression that Sachs would disagree with most of my concerns. 

First, private agreements are dependent on the bargaining strength of the parties, and workers and their unions often have much less bargaining power than employers.  Workers and their union sometimes have less economic resources than the employer, and an employer often has more ability to make a significant negative impact on the workers' lives than the workers have to impact the employer's business.  Thus, legal recourse to equalize the bargaining positions of the parties would improve the ability of unions to enter into and enforce private agreements. 

Second, setting up employer agencies that bargain with workers who would otherwise be independent contractors works well in a setting like that of the homecare workers.  But an expansion of such arrangements may lead to joint employer issues that make it difficult for workers and their unions to enforce rights to decent working conditions beyond those to pay and benefits. 

Third, because of the preemptive effect of the NLRA, the proprietary capacity of states and local governments to regulate is limited and the extent of that capacity is contested. Sachs recognizes the likelihood that the Supreme Court would grant cert on this issue and determine the continued viability of this form of experimentation.  And, indeed, the Supreme Court recently granted cert in Chamber of Commerce v. Brown, No. 06-939.  Having researched these issues of Garmon (San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959)) and Machinists (Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132 (1976)) preemption as a practitioner, I can attest that the issue of when an entity acts in a proprietary capacity is not simple or clear-cut.  The outcome of the Brown case will have a significant impact on whether this avenue of experimentation remains open.

Moreover, if free to regulate in the labor law area, states and local governments might grant workers less rights than those provided by the NLRA, as indicated by the fact that some states do not provide the right to organize and bargain collectively to public sector employees. 

Finally, I find it difficult to endorse the idea that merely protecting nascent attempts to organize without providing further legal protection is sufficient to protect workers' rights.  Because the rights to organize and bargain collectively are fundamental workplace rights, these rights should be protected through the duration of the employer-employee relationship, just as are the rights to receive minimum pay, to take appropriate breaks, or be free of discrimination based on invidious traits.

Overall, I agree with Sachs that these three channels constitute forms of experimentation that can provide guidance on reforms necessary to provide a regulatory scheme specifically devised to protect the rights to organize and bargain collectively.  And I find interesting his proposal that a federal agency, like the National Labor Relations Board, could establish "‘rolling best practices' that would constitute a floor below which states and private parties could not fall."  This type of labor law scheme might eliminate many, though not all, of my concerns with the current state of experimentation. 

 

I plan to periodically post legal writing tips that I hope will be useful to practitioners and scholars.  In response to my piece, Editing Tips for the Busy Attorney, Tom Hoy, Partner, Woodward, Hobson & Fulton, L.L.P., provides the following tip which is highly relevant to the practice of law today.

"I re-read all my e-mails before sending them and, where the e-mail is substantive or lengthy, I try to print it out as a draft and edit it in hard copy before sending it.  That is my tip for editing in this form of communication which has largely replaced the letter."

You can find my piece Editing Tips for the Busy Attorney, Ky. Bench & B. Nov. 2007, at 31 at the following link, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1031740.

I recently read Beth Simone Noveck's article Wikepedia and the Future of Legal Education, 57 J. Legal Educ. 3 (March 2007). In it, she discusses teaching law students how to write wikis. She suggests law students are "ideally suited to contribute their newly developed expertise" to substantive wikis. She also suggests using an internal, class-based wiki so that students can learn from each other.

In the past, I have used wikis only as a reader, so do not profess to have expertise in their use. But I am always interested in ideas for teaching legal writing, and this seems like a good one.

I envision using wikis to teach legal writing in the following manner. First, the student writes a short piece, perhaps an IRREAC exercise or a blurb on a legal topic of interest to the student, and posts the piece to a wiki. Next, the student edits someone else's post to a wiki, perhaps the IRREAC of another student or a publicly available post on a topic of interest to the student. Finally, the student returns to the student's original piece and edits it, using the same editing techniques applied to edit another's post.

Another interesting use of a wiki in a legal writing class is that developed by Peter Friedman. He has used a wiki in his legal writing class to have his class compose a checklist for writing a persuasive brief. You can find out about this exercise at http://www.case.edu/pubs/casemagazine/fall2006/Wiki_feature_edit.pdf , and you can view the checklist at the wiki, http://wiki.case.edu/Brief_writing_checklist .

I also envision using wikis as a component of legal writing across the curriculum. Writing and editing wikis is an opportunity to practice concise legal writing that, as discussed in Noveck's article, fits easily into a substantive law class. If students had experience with writing and editing wikis in their legal writing class, they would make the connection with writing across the curriculum.

Moreover, even if students are not writing or editing wikis for class, their use might provide an excellent opportunity for students to practice legal writing, collaborate with others in the legal community, and provide useful information to the public. From time to time, one hears antidotal stories about a student obtaining an employment opportunity because of a webpage. Certainly, writing and editing a wiki might also lead to opportunities. In the future, when I am counseling and speaking with students about writing opportunities, this is one that I will mention.

 

 I had the opportunity recently to read Leah M. Christensen & Julie A. Oseid, Navigating the Law Review Article Selection Process:  An Empirical Study of Those with All the Power - Student Editors, 59 South Carolina Law Review 465 (forthcoming 2008) (available at http://papers.ssrn.com/abstract=1002640).  I recommend it to students, practitioners, and scholars interested in publishing in law reviews.  As a basic legal skills instructor, I was heartened to learn that student editors value interesting and well-written manuscripts.  They care about "technical writing including: grammar, punctuation, spelling, citation form, proofreading, and easy-to-read formats."

The methodology used by the authors was to survey student editors and ask them about the selection process used and the factors that the student editors consider.  I would like to see a follow-up inquiry.  Perhaps someone can convince student editors to record, via Ipod or other recording device, their contemporaneous thoughts as they sit down to review and select manuscripts.  This might provide confirmation of the study results, and it might provide other interesting insights.

As an undergraduate major in sociology, I did research which involved interviewing college students about their parents division of labor in the household.  While some (rare) students professed that their father and mother equally divided household labor, inquiry into specific tasks sometimes revealed otherwise.  For instance, the tasks of planning, organizing, and making lists were often times performed by wives but not included in a facial assessment of the division of labor.  These time-consuming tasks actually rendered the household labor less equal than the college student believed.  In a similar manner, an inquiry into the actual contemporaneous thought process used by the student editors might reveal some interesting insights.

 I have recently posted the following manuscripts on my SSRN author page.  http://ssrn.com/author=866378

Lawyering Skills Principles and Methods Offer Insight as to Best Practices for Arbitration, Baylor L. Rev. (forthcoming Winter 2008)

Lawyers as Problem-Solvers One Meal at a Time: A Review of Barbara Kingsolver's Animal, Vegetable, Miracle, 15 Widener L. Rev. (forthcoming 2008)

Questioning the D.C. Circuit; Harmonizing Board Precedent: Why Mere Presence of an Organizer Should Not Invalidate a Board Election, Casenote, 7 U. Pa. J. Lab. & Emp. L. 463 (2005)