University of Louisville Law Faculty Blog
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.
As I mentioned previously, the purpose of this blog is to write about issues related to deans and deaning, and I generally try to avoid writing about individual deans. However, in some instances, individuals are particularly worthy of mention. In a prior posting, I mentioned former Dean Thomas Galligan of the University of Tennessee.
Another extraordinary dean was Tom Read who may hold the modern record for deanships (five). Tom deaned at a large public law school (the University of Florida), as well as at an array of other types of institutions (Chicago Kent, Richmond, S. Texas).
Tom, who I had the great pleasure to serve under for one year on a visiting basis, used to say that a dean who took two deanships could be referred to as a "recidivist." Tom referred to himself as a "serial dean."
Tom was absolutely extraordinary for a number of reasons. First, Tom was able to inculcate in his faculty a "rising tide raises all boats" philosophy. As a result, rather than competing against each other, the faculty seemed to be working together towards a common objective. In a profession like law teaching, where individuals function in some respects so individualistically, this was an extraordinary achievement. In addition, by his enthusiasm and support, Tom enabled and encouraged faculty to perform to the best of their abilities.
During my visit, I came to understand the regard with which Tom was held, not only by his own faculty, but also the greater law school community. Tom, who attended SEALS (Southeastern Association of Law Schools meetings) as dean at Florida and Richmond, inquired whether South Texas College of Law might be able to join SEALS. My suggestion that Houston and Texas might be more Southwestern looking than Southeastern looking was met with his argument that Houston is only 90 miles from Louisiana. The long and short of it is that I presented Tom's request to SEALS' membership. Although a number of Steering Committee members had doubts about whether Houston could legitimately be defined as "Southeastern," a large majority were willing to admit STCL and the other Houston schools based on the high esteem in which they held Tom.
In his terrific article, The Seven Deadly Sins of Deaning, Dean Steven Smith identifies decanal narcissism as one of the deadliest of sins. He refers to it as one of those sins that will rot a deanship and prevent a faculty from moving forward.
In an ideal world, there will be mutual respect between a dean and his/her faculty. Indeed, the best deans find ways to encourage and promote their faculty, and help them excel. In a prior posting, I mentioned Dean Tom Galligan (now President Tom Galligan) who was formerly the dean at the University of Tennessee College of Law. Tom was one of these rare individuals who had a strong relationship with his faculty, and who actively promoted the faculty's interests.
Unfortunately, when a dean suffers from narcissism (obviously not the case with Tom Galligan), there is a significant (and likely) risk that the dean will place his own narcissistic interests above those of the institution. If that happens, the result can be deadly and the psychology of an institution can be absolutely destroyed. The self-serving narcissist dean can affect both a faculty's morale and productivity. And, if a narcissistic dean continues in office over a long period of time, the deanship can severely damage the institution.
Of course, institutionally, a narcissistic dean may come with a silver lining. In some instances, an incompetent or malevolent dean may divide a faculty and create severe schisms or divides. In a few instances, such a dean may unwittingly help to create a more cohesive faculty. The narcissistic dean may stand as a common enemy for the faculty, and may unify the faculty against that enemy (who actually might come to regard the dean as a "foreign invader" if the dean came from the outside). Under such circumstances, the dean may have the beneficial effect of healing old rifts, and this "halo" effect may continue (in the sense of improved faculty relationships) once the narcissist is gone.
In my 26 years of teaching law, I have seen a range of deans. However, almost without exception, one knows that a deanship is in trouble when the dean is no longer the leader of the institution. When a dean is a respected leader, the faculty may follow the dean in a suggested course of action simply because they respect the dean's judgment (even if they may have mild reservations). In a troubled deanship, the dean's support produces the opposite effect. Not often, but I have seen situations when the dean's support for a proposition would guarantee a number of votes against the dean's position. I believe that this is what Steve Smith meant when he said that narcissism will "rot" a deanship and prevent an institution from progressing.
As Professor Ron Krotoszynski (Washington & Lee University School of Law, but visiting at Alabama this year) said, a dean can get away with holding her faculty (individually or collectively) in contempt, but she better not show it. I might add an addendum to this sentiment: a dean might place her own personal interests ahead of the institution's interests, but she had better not reveal that bias either.
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.
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.