University of Louisville Law Faculty Blog
The first draft of my article Legal Ethics in the Employment Law Context: Who is the Client? forthcoming in 37 Northern Kentucky Law Review, Issue 1, is now available. Here's the abstract.
The question is: Who is the client? Many ethical decisions attorneys must make emanate from this basic question. Thus, for those employment lawyers who represent, interact with, or sue unions or corporations, it is important to understand who the client is for different purposes such as representation, the attorney-client privilege, and ex parte communications. Because Kentucky recently adopted new rules of professional conduct, this paper uses Kentucky law as a microcosm through which to think about this larger question. Kentucky's prior rules were based on the prior version of the ABA Model Rules of Professional Conduct, still at least partially in effect in approximately twenty-two states. And the current rules mirror, almost identically in pertinent parts, the current model ABA rules, known as Ethics 2000, on which approximately eighteen other states model the pertinent rules. This recent change permits scholars and attorneys from a wide variety of states to benefit from the insights about Kentucky law.
Section I discusses the law governing a corporate employer attorney's relationship to the client and summarizes the law applicable to a union attorney's relationship to the client. Section II describes the duty of confidentiality and its relationship to the attorney-client privilege. Section III considers how far down the chain of command an employer or a union can assert the attorney-client privilege. Among other topics, Section III discusses relevant rules of evidence, related authority dealing with employers, cases regarding unions asserting the privilege, and fiduciary exceptions to asserting the privilege. Section IV addresses privileges related to the attorney-client privilege that a union may, in some circumstances, be able to assert. Finally, Section V discusses the law governing ex parte communications with employees of a represented employer.
The final draft of my article Industrial Justice: Privacy Protection for the Employed is now available. Here's the abstract.
As the nineteenth century drew to a close, Samuel Warren & Louis D. Brandeis proclaimed that technological change necessitated new protections for the right to privacy. Today, new protections for the right to privacy are called for once again because, in the American workplace, technological change continues unabated and little privacy is afforded employees from employer monitoring using the technology. Moreover, employers are disciplining and terminating employees based on information uncovered by monitoring. Recently, many employees have been terminated for off-duty blogging. Employees are often disciplined for using e-mail for personal reasons while at work. And global positioning systems ("GPS") have been relied on to discipline drivers and other employees.
This is the first academic article to provide a detailed review of labor arbitration decisions governing the right to privacy from employer monitoring in over thirty years. The article uses the decisions, on employee privacy and technologies such as GPS, e-mail, and the Internet, as a springboard to propose privacy protections in the non-Union private sector workplace. It, thus, fills a gap in the academic literature. The framework suggested provides the greatest protection for off-duty behavior, intermediate protection for on-duty expression of thought, such as through computer usage, and baseline protection for on-duty actions. It could be implemented through legislation of minimum rights or mandates for employers to adopt safe-harbor policies.
The final draft of my book review is now available. Here's the abstract.
Barbara Kingsolver's Animal, Vegetable, Miracle: A Year of Food Life is a must-read for lawyers and legal scholars in the areas of food law, environmental law, agricultural law, and education law. Indeed, I recommend it to anyone interested in the future of the planet or our children. The over-arching point of Kingsolver's book is that Americans should eat more locally-grown food. Kingsolver's position is that eating locally-grown food promises to be part of the solution to several of the major problems facing us at the start of the 21st century, such as global warming and childhood obesity. Many of the issues that Kingsolver addresses are legal ones, and many of the implications of her arguments also bear on legal topics. This review discusses the legal issues raised by the book and provides annotation to relevant legal articles, including articles on increasing opportunities for food production in local economies; global warming; childhood obesity; the Federal Farm Bill; the Plant Variety Protection Act of 1970; pesticide pollution and loss of wildlife habitat; lawsuits involving patented plant varieties; laws and regulations related to genetically modified foods; labeling laws governing Recombinant Bovine Somatotropin Hormone; proposals to reduce the public health risks of mad cow disease in the United States; green zoning; local ordinances governing community gardening; elimination of the regulatory quota system for tobacco; and the National Animal Identification System.
Marking one of the more dramatic reforms in the British legal system, the new Supreme Court was sworn in yesterday. Replacing the Law Lords on their ridiculously high benches, the new high court is more eye level but no less grand in gold trimmed robes and their £60 million new courtroom in the old Middlesex Guildhall. The establishment of the new court fulfilled a long delayed Labour Party promise, although critics claim it was "dreamed up over a glass of whisky" by Tony Blair to replace the old Lord Chancellor as high court judge with Lord Falconer, Blair's old roommate. Nonetheless, it establishes more independence in the court system in a nation with fewer formal checks-and-balances than any other common law nation.
Photo: Online Daily Mail
The Shorter Oxford English Dictionary has eliminated thousands of hyphens, Reuters reports. A new edition of the dictionary has combined some formerly hyphenated words into single words (bumblebee and chickpea) and others into two-word phrases (ice cream and test tube). The decision was partly based on a visual consideration--the belief that hyphens in the middle of words look ungainly. The editors had also observed that people are increasingly unsure about how to use hyphens, especially in the age of text messages and tweets.
This does not change the rule that a compound adjective placed before a noun must be hyphenated, especially where its meaning would otherwise be unclear. The modifier two-word, above, is an example of such a compound adjective. It would be ambiguous without the hyphen.
--The Word Aficionado
I had the great pleasure of attending the Fourth Annual Colloquium on Current Scholarship in Labor and Employment Law, hosted by Seton Hall University School of Law, this past weekend. I heard a number of excellent presentations on works in progress. These included the following presentations. William Herbert's "Certification without an Election in the Public Sector," Brishen Rogers's, "Towards Third-Party Liability for Wage Theft," Harold Lewis Jr.'s "A New FRCP, Rule 68.1," Kevin Kolben's "Towards an Integrative Theory of Transnational Labor Regulation," Sara Slinn's "First Contract Arbitration: Multi-Jurisdictional Evidence from Canada," Steve Wilborn's "Laval, Viking, and American Labor Law," Jeff Hirsch's "Communications Breakdown: Regulating Employee Access to Information," Jarod Gonzalez's "Striking Preemptory Strikes from Civil Jury Trials," Marcia McCormick's "Agency Adjudication of Employment Discrimination," and Scott Moss's "Litigation Myths! Explaining Pervasive Gaps Between What Courts Say and What Courts Actually Do."
Several may be of particular interest to practitioners. These included the following presentations. Samuel Estreicher's "Improving the Administration of the National Labor Relations Act without Statutory Change," Keith Cunningham-Parmeter's "The Future Rights of Unauthorized Workers," Mitchell Rubinstein's "Employers in the Borderland: Employers and Quasi-Employers," Suja Thomas's, "The Motion to Dismiss Under Iqbal and Twombly: The New Summary Judgment Motion," and Joseph Seiner's "Employment Discrimination Implications of Iqbal and Twombly."
There were also reports on Chapter Six (Other Torts) and Chapter Two (Privacy) of the proposed Restatement of Employment.
I believe that Seton Hall University Law School intends to podcast at least some of the presentations. I will post again if and when I discover that podcasts are available.
The American Libraries Association has designated September 26-October 3, 2009 as Banned Books Week. The annual celebration is designed to celebrate and show support for intellectual freedom, the First Amendment, and free and open access to information.
The University of Louisville’s Libraries celebrates each year with a read-in. Several UofL students and librarians will read samples from popular pieces of fiction as well as banned and challenged classics from a list of top 100 novels of the 20th Century. Some of my favorite authors are among them - Vonnegut, Tolkien, and Faulkner.
This year I read The Butter Battle Book by Dr. Seuss (1984), a clever satire about the nuclear arms race that was removed from the children’s collection of several school and public libraries because of its anti-war message. I recently checked out a copy of Thomas Paine’s writings from the Louisville Free Public Library. The collection includes Common Sense (1776) and Rights of Man (1791), both of which were challenged because of their subversive messages.
Last week my seminar discussed roadmap paragraphs. Most of you (who read this blog) are probably already familiar with a roadmap paragraph, one that sets out the points that will be discussed in more depth in the sections or sub-sections to follow. It is vital that an introduction contain such a paragraph because legal readers are busy individuals who like to see the conclusion and supporting points up-front. The roadmap paragraph is also important because it provides an overview of what will follow. The roadmap helps the reader to place the sections in context as they read. It also permits those who read no further than the introduction to get an understanding of the entirety of the argument. Roadmaps are used in all forms of legal writing including briefs and articles.
Building upon the idea of the roadmap paragraph, Volokh suggests an interesting variation that may help the flow of your article. Rather than use one paragraph as a roadmap, try including in your introduction one paragraph on each of the points to follow. For an excellent example of such an approach, we read Jean Sternlight's article, Creeping Mandatory Arbitration: Is it Just?
For a prior related post on umbrella sections, click here.
Last week, the United States Supreme Court called a special session and heard oral arguments in Citizens United v. Federal Election Commission. This case has grave implications for the continuing influence of money in politics under the guise of First Amendment free speech rights for corporations and unions.
On behalf of Citizens United, Theodore Olson stated that the "most fundamental right that we can exercise in a democracy under the First Amendment is dialogue and communication about political candidates." While true, this statement does not necessarily require equating the rights of corporations and unions to enage in dialogue about political candidates with those of people who actually vote for them.
Further, although the Supreme Court has considered money a form of protected speech, money does not persuade like mere words. If you ask me to paint your house because you really need to paint it before the winter and it's simply a nice thing to do, I probably will not be persuaded. But, if you ask me to paint you house for $100,000, I may be persuaded to grab my paint brush and get to work.
Imagine what Congress may be persuaded to do when the health care industry and its lobbyists spent $1.4 million per day from Janaury to March alone. In short, money persuades people with a power that mere speech does not possess. This type of avaricious power needs stronger checks against its influence on our political process, not less. Indeed, that's why individuals like Professor Lessig start organizations like Change Congress.
Speaking of individuals, I must admit some despair when I see Floyd Abrams argue on behalf of amicus curiae, Senator Mitch McConnell in Citizens United, especially when Abrams seeks to rely New York Times v. Sullivan to support his arguments against the constitutionality of limiting corporate and union spending on campaigns during elections. Surely, Mr. Abrams appreciates the difference between defending the Fourth Estate that is supposed to be a check and balance on governmennt and defending the rights of corporations and unions to influence politics with aggregated wealth. Alas, perhaps I should take Mr. Abrams' advice and get over it.
Even Stephen Colbert showed his legal chops in discussing this case during his signature segment, The Word, with the word being: Let Freedom Ka-Ching and interviewing Jeffrey Toobin. During both segments, Colbert discusses the 1886 case, Santa Clara v. Southern Pacific Railroad and its questionable reliability.
But the concerns of corporate (and union) speech date back farther than 1886. Indeed, Thomas Jefferon and Abraham Lincoln both expressed the need to be mindful of the harmful effects that aggregated power and wealth can have on our democratic system of government:
"I hope that we shall crush in its birth the aristocracy of our monied corporations, which dare already to challenge our government to a trial of strength, and bid defiance to the laws of our country."
"I see in the near future a crisis approaching that unnerves me and causes me to tremble for the safety of my country . . . corporations have been enthroned and an era of corruption in high places will follow, and the money power of the country will endeavor to prolong its reign by working upon the prejudices of the people until all wealth is aggregated in a few hands and the Republic is destroyed."
In closing, the First Amendment should not provide refuge for the poweful influence of money in politics as free speech, especially for artificial entities that do not speak, do not vote and whose primary objective is profit. Indeed, as Bob Dylan notes: "Money doesn't talk, it swears."