Attached please find the outline and slides for my presentation at the Warns Institute.  I hope to publish an academic article on the topic as well.

 

Dwight T. Lovan, Executive Director, Kentucky Office of Workers' Claims provided an illuminating history of Kentucky workers' compensation.  In response to a question from the moderator, he stated that he believes that the issue of an on-the-job injury is an issue about the employer and employee relationship.  He told the story of a thirty-one year employee who refused a $70,000 lump sum payment because she would no longer get the annual Christmas ham.  He views encouraging a positive relationship between employers and employees as a primary goal of the workers' compensation system.

Thea Lee, Assistant Director of Public Policy, AFL-CIO provided an informative analysis of the relationship between domestic labor standards and the international economy.  She held out challenges to labor rights violations through the general system of preferences, Section 301 of the Trade Law, and new labor and environmental standards for bilateral free trade agreements as potential beacons of hope.

Ronald Meisberg, General Counsel, NLRB, provided an insiders view on the National Labor Relations Board. He currently has the power to unilaterally institute 10(j) proceedings and to confer with the Solicitor General on labor issues without authorization by the Board.  (He believes, however, that it is better when the Board does have to provide authorization for 10(j) injunctions because it lends "more institutional heft" to the request.)

Professor Elinor P. Schroeder, University of Kansas, provided a fascinating overview of the status of at-will employment in the United States.  If you are lecturing on or teaching the subject, you should ask her permission to use her animated maps that show the year in which each state's supreme court that has adopted either the handbook exception or the public policy exception did so.

Frederick Dennerline, of Filenworth, Dennerline, Groth & Towe, gave an overview of the intersection between ERISA and collective bargaining.  He concluded with a discussion of the Pension Protection Act, which, for certain plans facing critical funding crises, requires the negotiation of a "rehabilitation plan" by the union and the employers.

Carolyn L. Wheeler, Office of the General Counsel, EEOC, queried whether "when the Supreme Court speaks does anybody listen?"  She pointed out that one instance where the Supreme Court needed to speak twice to get the lower courts to listen was when it held there was no "pretext plus" requirement.  She believes the same may be necessary to refocus the lower courts on the proper definition of adverse action in retaliation cases which she assert is whether the action would dissuade a reasonable person from filing a charge. 

Jeffrey C. Kauffman, of Seyfarth Shaw, LLP, gave an interesting and accessible talk on the WARN Act.  Everyone was convinced that the forty-two cents to send an employee notice is money well spent.

Professor Michael Z. Green, Texas Wesleyan University School of Law, concluded with a lively and thought-provoking discussion of an employment or labor attorney's ethical obligations when preparing witnesses and defending depositions. 

Today I had the good fortune to attend the Twenty-Fifth Annual Carl A. Warns Jr. Labor & Employment Law Institute.  There was a great group of speakers who conveyed useful information on a broad spectrum of legal and workplace issues.

Below is a quick run-down.  I will post again, on the second day of the conference, tomorrow and thereafter to notify you when the video of the conference and other materials are available online.

John T. Lovett, of Frost Brown Todd, LLC, summarized twenty-one labor and employment decisions decided this year.  As noted by one participant, some of the cases were counterintuitive.  For instance, in one case a plaintiff granted sexual favors to her supervisor in response to threats.  The court held the employer could escape liability by asserting that the employee unreasonably failed to use the sexual harassment policy because there was no tangible adverse employment action.  There were definitely a number of surprising decisions, so it will be worth viewing the video of his talk.

Professor Robert D. Dinerstein, of Washington College of Law, American University, provided an entertaining and informative review of disability discrimination law in the employment sector.  His materials will shortly be posted here. 

Professor Sharona Hoffman, of Case Western Reserve University School of Law, provided a comprehensive yet succinct overview of the ways employers are permitted to invade employees' privacy and the minimal limitations on such invasions.  Particularly interesting points included the following:  1) After hiring an employee but before the first day of employment, employers "can obtain medical information of unlimited scope" regarding the employee (with the exception of information covered by the newly enacted GINA); 2) The European Union Privacy Directive prohibits the processing of certain types of personal data, including that revealing political opinions or philosophical beliefs or that concerning sex life.

David Cohen, Executive Director, Department for Professional Employees, AFL-CIO Washington DC, gave an innovative presentation about the future of work.  He told the story of Kellogs of Battlecreek.   In the 1930s, Kellogs instituted the six hour day rather than lay-off workers.  In response, workers became so productive that Kellogs was able to reinstitute eight hours pay for six hours work!  He also pointed out that wages have stagnated since the mid-1970s but production has continued to rise due to technological change and automation.

The keynote lecture was given by Professor Charles B. Craver of George Washington University.  Professor Craver has an amazing breadth of knowledge about labor history, labor economics, and labor law.  He started by discussing how one theory for the rise of unions between 1945 and 1955 is that the competition between the AFL and CIO unions was positive for unionization.  He theorized that the same may be true of the more recent split between the AFL-CIO and Change to Win.  He told the story of how when Henry Ford was walking Walter Reuther through a plant pointing out how this, and that, and the other thing would eventually be automated, Reuther asked something to the effect of, "and who will buy your automobiles then?"  Professor Craver concluded with his proposal for mandatory worker participation at both the shop and board level.  I encourage you to check out the video of his talk!

Barbara L. Johnson, of Paul, Hastings, Janosky & Walker, reviewed this year's employment Supreme Court decisions.  "If she were a betting person," she would bet that the Kentucky Retirement System will prevail in the pending suit brought against it for age discrimination by the EEOC.

Professor Elaine W. Shoben, of University of Nevada, William S. Boyd School of Law (and University of Illinois), gave a thought-provoking talk on covenants not to compete incident to the end of an employment relationship.  She suggested that the lack of clarity in the law in this area is analogous to the lack of clarity in products liability law in the 1920s.  She predicts that, just as happened with products liability, more uniformity will develop in this area over time and the jurisprudence will be specific to this area and nontransferable to other areas of contract law.

I will post the materials from my own talk soon.

If you have students working with you this summer or know students who are doing legal work this summer, please share the "Transitioning from One-L to Summer Legal Work" podcast series with them.  It contains a lot of great advice that I wish someone would have shared with me, long ago, when I started my job after my first year of law school.  The announcement of the series and the link are below.

The "Transitioning from One-L to Summer Legal Work" podcast series "is hosted by the Suffolk University Law School Legal Practice Skills Program and includes podcasts created by nineteen legal research and writing faculty from around the country. Its goal is to provide 1Ls with advice on applying the skills they learned during their first year of law school to summer legal employment, as well as to help them succeed in the culture of a law firm. Click the following link for a video overview and to access the series:"

http://www.law.suffolk.edu/podcasts/lps-2008-summer.html

I want to thank Professor Garman for her response to my post about students who "transcribe."  Her willingness to share her personal experience opened my eyes to an issue of which I was not previously aware.  Here are her thoughts:

 

This subject makes me cringe every time it arises because it hits so
close to home for me! And please allow me to preface my remarks with a
request that you forgive me if some of what I share with you are things
you already know.

First, a personal note: I suffer from ADD. When I was in law school,
I sat in the front row in every class and "transcribed" for all I was
worth. My transcriptions turned into my outlines, from which I studied
for exams. Speaking for myself, I was MORE engaged in class *because*
I was typing what I heard. Because of my ADD, if I had been robbed of
the ability to type what was happening in class, my grades would have
suffered. The activity of typing gave my racing mind something --
well, "mindless" to do, allowing me to focus on class.

It is difficult to understand, even for those of us with ADD, the
two-headed characteristic of distractibility / ability to hyper-focus. If
we don't give our distractible brain something to "do," it wanders and
takes the rest of our brain with it. However, doing a task we're good
at and can do without much thought frees our brain to concentrate when
we need to. For me, typing let me concentrate in class. (I've talked
with other students who focused better in class if they could knit or
doodle.)

For those of us with ADD and other learning disabilities, there lurks
another, less apparent danger in removing all laptops from class. Bear
with me on this one.

There are many students who are either undiagnosed or who are diagnosed
but will not seek accommodations because of shaming and pressure from
their peers. The first group consists of those bright students for
whom school and even earning top grades, had never been difficult -- until
the frantic pace and pressure of law school. Suddenly, during their
first semester, they found themselves unable to keep up, pay attention,
stay focused, etc.

These students got tested and learned for the first time that they had
ADD. Once diagnosed, they began educating themselves on the disorder
and realized that for as long as they could remember, they had suffered
from many of its symptoms. In reality, they were so bright that the
symptoms did not impact their ability to excel in school. In fact, many
of their ADD traits likely helped them in school (e.g. "cramming" for
exams, hyper-focusing, etc.).

In the second group of students are those diagnosed with ADD who
decided against seeking accommodations in law school, even if they had
received them until that time. Whether this is because they suspected they'd
outgrown their ADD, they wanted to feel independent, they wanted to
"see if they could do it without accommodations" -- whatever the reason,
they went without help for a semester. However, sitting in that
crowded room during that first set of time-pressured exams, where all their
minds could think of was the sound of their classmates' pencils
scratching in bluebooks, they froze. Then they received that first set of
grades. Second semester, they re-thought their decision to forego
accommodations.

Both sets of these students who realize they *need* accommodations --
REALLY need them -- may decide not to get them because of all the talk
around campus. Law school being the competitive environment it is, some
"normal" students inevitably infect the student body with an
undercurrent of sour grapes directed against those who get extra time on exams.
It happens despite how we know we *should* view students with
learning disabilities who deserve accommodations. For that matter, it happens
despite the fact that such issues are meant to be confidential. These
students who desperately need and deserve this support thus may refuse
to seek it because they know their classmates may find out (and resent
them) for receiving "extra help."

There are two points here: One, students with ADD and other learning
disabilities face invisible obstacles every day. In my opinion,
removing laptops would create one more obstacle for these students. Two,
banning laptops for everyone except those with ADD or other LDs would just
make matters worse, causing even more unwelcome attention to these
already stigmatized students.

Thanks for posing this question, and for considering those students
with learning disabilities and ADD.

Rhonda Mayse Garman

(Faulkner)

Reproduced below is the announcement of the survey results from the LWI Committee on Cooperation Among Clinical, Pro Bono, and Legal Writing Faculty .  Attached is a copy of the survey.

 

The LWI Committee on Cooperation Among Clinical, Pro Bono, and Legal Writing Faculty is pleased to report the results of our 2007 survey of examples of collaboration among law school faculty (attached).

The Committee invites every legal writing professor interested in experimenting with collaboration to review the survey results for ideas and inspiration.

The survey results are useful to LRW faculty interested in ways to reach out to clinical, externship, and pro bono colleagues - whether to experiment with new teaching methods, or to use real legal problems to craft assignments, or to spark student interest in clinics, or to build bridges among like-minded faculty.

Survey results also include views on whether all law faculty currently use the same vocabulary to coach the writing process and, if not, whether that would be helpful.

While the 2007 survey respondents are not identified, they may be willing to answer questions or help you replicate a particular example of cooperation. If you would like to contact a particular survey respondent, please feel free to contact Ariana Levinson (U. Louisville) at a.levinson@louisville.edu or 502-852-0794.

The 2007 survey results soon will be posted on the LWI website, www.lwionline.org (scroll down the left column menu to Surveys, then click on Cooperation Survey). The 2006 survey results are also available on the LWI website.

A huge thank you to Susan Wawrose ( Dayton ) for summarizing the survey results. Special thanks to Tom Cobb (U.Washington) for hosting the 2007 survey tool and to the IT staff of U.Washington for all of their help. Thank you to every survey respondent for taking the time to share your examples of faculty cooperation with the Committee.

A narrative summary of the 2006 survey results was published in JALWD and is available here : http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1088137 and soon will be posted on the LWI website.

And feel free to stop by the Committee's poster presentation at the LWI Conference this summer, a project spearheaded by Deborah Schmedemann.

 

Members of the LWI Committee on Cooperation Among Clinical, Pro Bono, and Legal Writing Faculty are Rebecca Scharf (UNLV), Nancy Wanderer (Maine), Steve Schwinn (Maryland), Deborah Schmedemann (William Mitchell College of Law), Evelyn Tenenbaum (Albany Law School), Laurel Oates (Seattle), Susan Wawrose (Dayton), Tom Cobb (U.Washington), Margaret Philips (Buffalo), Tracy Bach (Vermont), Ariana Levinson (U.Louisville), and Sarah Ricks (Rutgers-Camden), Chair.

 

Happy reading!

 

Sarah

 

Sarah E. Ricks

Clinical Associate Professor

Co-Director, Pro Bono Research Project

Chair, LAWR Department

Rutgers School of Law - Camden

217 N. Fifth Street

Camden, NJ 08102

(856) 225 - 6419

 

 

 Thanks to Professor Brill for sharing the following thoughts:

 

There is no one uniform learning style. I have one colleague, who in
the days well before computers, wrote every word in longhand in her
classes at Harvard. She is very bright and very anal and graduated summa cum laude. I had one classmate in my class who was able to write one or two sentences after class and was able to remember everything that took place in that class months later, and he got straight A's in law school.

To the teacher, a student who is busily copying everything without
thinking about what is going on would appear to be getting almost nothingfrom the class. But that student may be a self-learner, who will read the material now and later and review those notes and then things will make sense. After all, one of the most important skills we teach is the ability to EDUCATE ONESELF. When students are asked to write a memo or brief on issues in an area of law which they have not previously
studied in another class, they must read articles, encyclopediae,
treatises, cases, statutes, and other sources of law, and synthesize the
material and formulate applicable principles and analogize or distinguish fact situations and many other steps to predict results or formulatepersuasive arguments. They largely must do it on their own, as they will in practice. One cannot practice law by what one learned in law school classes. There always will be new issues, or unfamiliar law, or rules different in a particular jurisdiction than what they have studied in
their classes.

So, some students learn very well from Socratic questioning; some learn
best by passive listening; some learn by writing ...through the pen or
keys into the brain....etc. etc.

When law faculty start banning laptops in class because students appear not to be paying full attention or taking part they are doing so
primarily because of their own egos. How can a student possibly not want to take part in my brilliant presentation of the material?

That isn't to say that the teacher should not discuss these things with
the students, and offer the students their views on the best ways of
learning, for the students to try, and to evaluate. But in the end,
each student must decide what is best for that student, for better or
worse.

 

Ralph Brill (Kent)

 

Thanks to these professors, named below, who shared their personal stories.

 

As a law student, I took notes by transcription, meaning I wrote down
every word a professor said (as nearly as possible).  I also was number
one in my law school class at the end of the first year.  I discovered that this was a very effective learning strategy for me. I haven't had my learning style formally analyzed, but I know that I don't learn well by hearing things alone.  I find that I always take lots of notes.  I was also a person who tended to be very engaged in the classroom and was able to respond thoughtfully to the professor's questions.

Anonymous clinical professor

 

I was one of the transcriber types and actually wrote essentially everything down by hand.  That worked best for me.  I figured out things later by reviewing all of my notes.

Cassandra Hill (UCLA)

 

Just wanted to chime in really quickly to say that, in my experience, a student who transcribes won't necessarily be a poor learner.  Some of my best students take notes this way.  Furthermore, speaking from personal experience, I was a transcriber in law school and  seem to have turned out okay (my classmates used to call me "the stenographer").

Jim Dimitri (Indianapolis)

 

When I was in law school, I took transcription-type notes by hand, typed them later in the day, and then condensed them into my outlines.   I didn't feel like I was missing anything in class (but I was a law student, so my perspective was admittedly skewed).  Not surprisingly, the classes I did the best in were the ones in which I didn't skimp on the later steps -- typing them up later and condensing them into my outline. Based on that experience, I've always assumed that the students who are transcribing notes in class might be doing themselves some good if they worked with the notes later in some way; but if they just took them in class, didn't look at them again, and then used them to study later, they would have trouble.

Tracy McGaugh (South Texas)

The Supreme Court is considering whether retaliation for cooperating in an employer's internal investigation is prohibited by Title VII.  (See SCOTUS for relevant documents in Crawford v. Metro. Gov't of Nashville.) 

Meanwhile though, at least in part of Kentucky, there appears to remain some teeth in the Fair Labor Standards Act's ("FLSA") anti-retaliation provisions.  BNA reported  (subscription required), last week, that the Western District of Kentucky refused to grant summary judgment to Yum! against a prior employee asserting a claim of constructive discharge. The employee allegedly quit because he was directed by the director of aviation to stop complaining about lack of overtime pay, resign, or be terminated.  Ellis v. Yum! Brands, Inc., No. 3:06-CV-235-S (April 25, 2008) (available to users with PACER accounts and ECF users or through BNA (subscription required)).  The court reasoned that the Sixth Circuit has held that FLSA's anti-retaliation provisions include protection against retaliation for internal complaints about failure to pay overtime.  The court concluded that the evidence of retaliation and constructive discharge was sufficient to withstand summary judgment.  The well-reasoned opinion uses stronger language than often seen when addressing a motion for summary judgment; the court, for instance, states that such a directive "would be objectively intolerable to a reasonable person."

Thanks to Professor Burgess for sharing her thoughts based on her research into learning theory.  She responded to my inquiry as follows:

 

Is Transcribing Professor Lectures Good or Bad: It Depends

 

Hillary Burgess, Assistant Professor of Academic Support at Hofstra School of Law
prof AT hillaryburgess DOT com

 

There is no right or wrong way to study, only ways that work well for some people and not for others. The literature often talks about how teachers (at all levels - K-grad school) make the assumption that their students are the same type of learner as they are, so well-intentioned advice about great ways to study can be a lead to a mismatch of learning style and study strageties with students.

Transcribing could be a disaster for some learners. For example, extroverts who tunnel into their computer and lose track of the interaction with their teacher would not be well served by the transcription model. Instead, they should treat the lecture as an individual conversation between the teacher and themselves, answering the professor's questions and responding with active listening techniques (even if just in their head). Listening learners would not be well served because they'll retain more information by listening intently and taking very sparse notes - just enough to recall what the person said.

On the other hand, for someone who is very much not an aural learner (meaning does not learn well from listening), transcribing and later reading the notes might work, even for many different types of learners. For example, transcribing, then reading the notes out loud into a mirror or with a partner as they manipulate them might work well for talking learners. Or transcribing, then reading them before turning them into an outline might work well for read/write learners or into a flow chart might work well for visual learners. Or transcribing them, then acting out the role of the teacher might work well for kinesthetic learners.

Transcribing could be used as a coping mechanism for learners who do not find their style matching with the profs' teaching style. For example, an MBTI perceiving learner in a straight-lecture-no-intonation class might find that the rigor of transcribing is the only way to stay focused since these learners need novelty and tend to get distracted and tune-out without choice and creativity.

I think the big advice is that, regardless of using the method as a learning style or as a coping method, it's not enough to simply transcribe or even transcribe then read, the student needs to use the transcription to (dare I say it?) think about the material. To do well in law school, students must be able to take their knowledge and apply it to new situations (Analyze or even Synthesize on Bloom's Taxonomy). The big adjustment for law students is that the answer is not in their notes, no matter how detailed they are...it's in the rules with the added responsibility of analyzing.