University of Louisville Law Faculty Blog
Last night I attended the Louisville Sierra Club's annual legislative update, presented by Tom Fitzgerald, an adjunct professor at our law school.
He provided a list of legislation that's too numerous to list here, but addressed topics pertaining to billboards, campaign refinance, animal cruelty, renewable resources, mandatory helmets for motorcyclists and more.
Of particular interest to environmentalists are:
HB 214 - AN ACT relating to tax incentives for alternative fuel sources;
HB 233 - AN ACT relating to plastic containers;
HB 299 - AN ACT relating to renewable-energy and energy-efficiency standards; and
SB 69 - AN ACT relating to the hazardous waste management fund and making an appropriation therefor.
For a copy of any bill, to check its status, or to track which committee it has been assigned to, visit the Kentucky Legislature's website and click on 2008 Regular Session. From their homepage, you can also connect to Bill Watch , a new alert service that will deliver updates on the pieces of legislation you select to your email address.
*Unfortunately, none of the environmental bills made it out of committee. (updated 4/17/08)
In their forthcoming article, Deborah L. Brake and Joanna L. Grossman detail how the assumptions that underlie the procedures for making a claim under Title VII do not coincide with how, according to social science research, people actually respond to discrimination. The Failure of Title VII as a Rights-Claiming System, 86 N.C. L. Rev. (forthcoming 2008).
Their thesis is three-fold. First, "The law's timely filing and reporting doctrines take as its worthy claimant a person who quickly and accurately perceives discrimination and responds by promptly challenging it." Yet, most employees do not initially recognize discrimination or are deterred from filing complaints quickly by the social costs of complaining. Second, "Employees who overcome these obstacles and manage to assert their rights are left without adequate protection from retaliation from doing so."
Third, "The increasing privatization of employment disputes - a recent trend noted by many scholars - adds to the severity and nature of the problems we identify." In relation to this point, Brake and Grossman discuss how Title VII's timely filing requirement is not tolled pending internal dispute resolution. Thus, employees who use internal dispute resolution systems may forfeit the right to pursue legal claims. Additionally, the protection against retaliation for internal complaints is much less than that for formal complaints.
Because the focus of the article is on the procedural rules by which an employee may claim discrimination, Brake and Grossman do not engage in any extended discussion of the pros and cons of internal dispute resolution systems. But they do raise some important points for anyone, like me, considering the efficacy of using an administrative agency, in contrast to other forms of dispute resolution, such as internal dispute resolution. For example, what period of time must a timely filing requirement permit in order to enable the average victim of discrimination to make a claim? Should continuing violations be recognized? Should any filing requirement be tolled while the employee pursues related internal dispute resolution? Should complainants be required to complain only to designated officials? Should anti-retaliation protections apply to complaints registered through internal dispute resolution proceedings? If individuals are unlikely to recognize when they are discriminated against, how can a statute or agency foster the ability to complain on behalf of another? What type of enforcement scheme might be available other than one that relies on individual enforcement?
Professor Ariana Levinson has recently posted an excellent discussion on her blog about the benefits of disclosing adverse authority. Professor Levinson discusses the increased value of persuasion the argument has when it distinguishes adverse authority. I write to add that in the majority of jurisdictions, there is an ethical duty to disclose directly adverse authority from the controlling jurisdiction. Model Rule 3.3(a)(2), adopted by many jurisdictions, states: "(a) A lawyer shall not knowingly: ... (2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." The thought is that the failure to disclose creates damage not just to the client, but to the judicial system. Either judicial resources are expended in doing research or, the court does not discover the adverse authority and renders a reversable opinion which confuses the law of the jurisdiction.
Kentucky, at the moment, does not require disclosure of adverse authority. The Board of Governors has recommended to the Kentucky Supreme Court that Kentucky go the way of the majority of jurisdictions and require disclosure.
I hope to post a legal writing tip, based on my basic legal skills class's discussion, each week this semester. We are discussing persuasive writing, and in particular writing appellate briefs.
We began our discussion of writing briefs by talking about the ethical obligations involved. One student, Mr. Scott Justice, asked how there can be an ethical obligation to disclose adverse authority. He inquired why disclosing adverse authority doesn't amount to doing opposing counsel's job and a disservice to your client. Indeed, sometimes it is tempting not to disclose an adverse authority and hope that the opposing attorney won't find it.
But usually the better practice is to disclose an adverse authority. By presenting the adverse case and framing it in the manner most favorable to the client, you shape the judge's view of the authority. By distinguishing the case, you do your client a service by undermining an opposing argument.
Chances are, if the authority is truly adverse (one that opposing counsel almost certainly should raise), opposing counsel, a law clerk, or the judge will find the authority anyhow. Even if they don't, you will live with a clear conscience.
While thinking about administrative agencies and their potential detractions as dispute resolution systems, I read Wilma B. Liebman's essay, Decline and Disenchantment: Reflections on the Aging of the National Labor Relations Board, 28 Berkeley J. Emp. & Lab. L. 569 (2007). Liebman, the senior member of the National Labor Relations Board ("the Board"), discusses how, in addition to other factors, the unwillingness of the Board to think "dynamically" about promoting the policies underlying the National Labor Relations Act ("the Act") in light of the transformed modern economy has rendered the Board inadequate to protect employees' rights. She states, "Whether labor is right or wrong about the Board makes little difference. In this case, the perception of the law's failure is what matters. . . . Something has indeed gone wrong. Somewhere along the way, New Deal optimism has yielded to raw deal cynicism about the law's ability to deliver on its promise. The National Labor Relations Act, by virtually all measures, is in decline if not dead. Nor, at least until recently, has there been any real prospect for labor law reform."
Liebman suggests that, if the Board would change its approach, it could have a "modest but meaningful role" to play even in the changed economy. She is encouraged by the recent public dialogue about the Employee Free Choice Act, and other labor issues, because she believes a public dialogue about labor law policy is imperative. She details many restraints upon the Board's discretion to act "dynamically" and many ways in which the Board has not exercised the discretion it does have in a "dynamic" manner.
While her essay is particular to the Board, it implicitly raises many questions about how to establish an effective administrative agency. What remedies should an agency be enabled to provide to claimants? Should a labor or employment agency be permitted to employ economic or other analysts? How can agencies be mandated to equally balance the multiple purposes of any given act, rather than promoting one purpose over others? How should an agency treat its precedent? How can agency delay be circumscribed or avoided? Does establishing a specialized agency contribute to judges, who must review the agency's decisions, failing to obtain education about the goals of the governing act?
Liebman concludes that, "When dictionary definitions matter more than economic or workplace realities, the Board abdicates its intended role as an expert administrative agency charged with making labor law and policy tailored to the complexities of a changing economy." Indeed, administrative agencies are not lower courts. To a greater extent than such courts, they should consider real-world consequences and whether those consequences will further the policies of the governing act. (Similarly, arbitrators often consider the parties' relationship and the equities of the situation beyond the literal terms of the contract.) Ultimately, the question is how to ensure that agencies do so.
To prepare to write an article discussing the debate about litigation, self-regulation, or arbitration as the appropriate forum for resolving employment disputes, I've recently read a series of new articles.
Jeffrey M. Hirsch, The Law of Termination: Doing More With Less is an interesting, counter-intuitive, and somewhat provocative article.
Hirsch advocates replacing all state and federal laws governing termination with one federal law requiring that employees may not be terminated without just cause. He proposes this as a pragmatic solution to the problem employers have of keeping abreast of and complying with the multitude of laws governing termination.
The details of the proposal include the following. An employer would need to "provide reasonable notice to the employee [prior to termination] and allow time for the employee to rebut the reasoning or possibly remedy performance problems [that] may lead to termination." The burden would then be on the employee to show that termination was not "actually motivated by a reasonable business justification." A claim would be enforced in any court of competent jurisdiction, state or federal. Hirsch is open to suggestions about the details because his aim is simply to foster a more pragmatic system that "better enforce[s] the goals of the current system of termination rules . . . ."
I have the following thoughts about the article and Hirsch's proposal.
Hirsch extensively discusses and defends well his choice of enforcement by judges rather than arbitrators. He, however, discusses labor and employment courts and administrative agencies more briefly. It seems worthwhile to explore labor and employment courts more extensively even if they are not politically feasible because, as Hirsch recognizes, the proposed termination law is unlikely to be politically feasible anyhow. Additionally, an administrative agency might provide some of the benefits of arbitration without its detractions. I hope to write about administrative agencies as a forum for resolving employment disputes. While extended discussion of these forums may be beyond the scope of Hirsh's article, I will rely on his limited discussion of them as one valuable starting point for my thoughts on the topic.
I also wonder whether terminations based on discrimination on the basis of invidious categories should be lumped in with a just cause standard. The proposal to treat gender and race discrimination simply as one illegitimate business reason reaches the heart of the dispute over whether laws promoting race or gender neutrality can effectively eliminate discrimination against women and racial minorities. Because of the systemic nature of these violations, don't we want to discourage and punish this type of unlawful termination even more than other types of terminations that are not for just cause?
Additionally, I hope that Hirsch will reconsider the burden of proof he proposes. Perhaps placing the burden on the employer to prove the termination was actually motivated by a reasonable business justification makes more sense, even with the proposed notice requirement. The employer typically has better access than the employee to the information that proves that the given reason was the actual reason for termination.
I would also like to see more statistics or anectodal evidence supporting the argument that providing employees notice that they are not meeting expectations results in a situation where employees correct the inadequacies and remain employed. I have lingering doubts that mandating notice instead simply provides employers an opportunity to discover and document some valid reason for terminating an unwanted employee.
Finally, more extensive discussion of the number of employers that employ people in multiple states, for which this proposal would simplify matters, might be helpful to add in support of the proposal.
The latest Kentucky case in the Supreme Court spotlight, Baze v. Rees, will be argued today and the Court has decided to provide same-day (but not live) audio of the of the oral argument. This extraordinary treatment only happens on rarely and reflects high public interest in the case. Recently the Meredith v. Jefferson County Board of Education and Guantanamo Bay cases received this attention.
Supreme Court will release the audio recording of oral argument in the case, scheduled at 10 a.m. today, January 7, 2008, shortly after the conclusion of the argument. The audio recording “will be provided to the network pool, which will in turn provide an offsite, simultaneous feed to member news organizations.” My guess is that it will be available on the websites of 24/7 news channels CNN and MSNBC by this afternoon.
UPDATE: From SCOTUSBlog: The transcript of today’s argument in Baze v. Rees (07-5439) is now available here. I still haven't found an audio feed.
The best deans leave enhanced institutions and positive feelings in their wake. In other words, they leave strong "legacies" on which their successors can build. At the University of Louisville, even though he has been dead for years, many faculty still speak with reverence regarding the deanship of James Merritt. Lots of other deans have left, or are in the process of creating, similar legacies at other institutions. Don Polden, Tom Galligan, Steve Smith, Ian Holloway, Bruce Elman could be mentioned.
What do successful deans have in common? Jim Merritt and David Partlett (formerly of Washington & Lee and now dean at Emory) provide good examples. Both individuals display (or displayed) visions for their institutions, tremendous interpersonal skills, a healthy emotional balance, respect for their colleagues, and an ability to build a working consensus among their faculties.
When I arrived at Louisville, my more senior colleagues frequently told me that Dean Merritt was never taken by surprise by a faculty vote. This was no accident. Jim regarded himself as a "first among equals," rather than as an "emperor" or a "dictator" or a "boss," and was in constant communication with his "faculty colleagues." In other words, Jim actively sought to work with his faculty to find ways to push the institution forward.
Of course, an important aspect of all successful deanships is core self-esteem. A dean who lacks self-esteem is more likely to make decisions based on personal, rather than institutional, considerations. In addition, a dean without core self-esteem is less likely to do what is right for the institution. As a result, relations with "faculty colleagues" (if, indeed, the dean regards his or her faculty as "colleagues") are likely to be strained or dysfunctional.
Dsyfunctional deans ultimately pay the price, as (unfortunately) do their law schools. In addition, they leave a tattered legacy in their wake. Instead of throwing a "going away" party when the dean steps down, the faculty throws a "gone away" party.
At the new dean's workshop, or so I'm told, the following joke was circulating at one point: A faculty member goes to the dean's secretary and demands to see the dean. The dean's secretary expresses sorrow at being the bearer of bad news, but explains that the dean died last night. The faculty member goes away, but comes back the next day demanding again to immediately see the dean. Even though the secretary is a bit preturbed at receiving the same request, especially in light of the conversation of the day before, the secretary patiently explains again that the dean has died, and that a meeting is not possible. The faculty member goes away, but returns the following day with the same request that is made somewhat more emphatically. In frustration, the secretary reminds the faculty member regarding the prior conversations, and inquires how it is possible to convey the fact that the dean has died. The faculty member responds: "Oh, I got it the first time. I just wanted to hear the good news again."
A colleague at a California law school sent me the following missive regarding his law school's experience with a narcissistic dean:
I was reading your missive on decanal values. Quite interesting! I would characterize our former dean's relationship with the faculty as adversarial. In our case, it did not have an appreciable impact on the dean's power. That may reflect poorly on us as a faculty or the downside of a private-freestanding law school that is dominated by a board of trustees selected by the person the board is supposed to oversee. My take on the experience was that it was uncomfortable, but not unbearable. The dean becomes a force opposed to change because he can't lead the faculty to agree to change. Eventually he moves on.