University of Louisville Law Faculty Blog

More on Decanal Virtues

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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.   

Decanal Narcissism

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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.   

 

"Credentials of Legal Writing Faculty at Hiring Time"

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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.

Using Editors to Review Legal Writing?

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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. 

Enforcing Forest Protection Laws in Mexico


Last week, Mexican police conducted the largest raid on illegal logging operations in the nation’s history. Raiding 19 sawmills, police arrested 56 people and seized roughly 6,600 tons of illegally harvested timber. The raids occurred around the Monarch Butterfly Biosphere Reserve in Central Mexico.

Monarchs migrate to Mexico in winter, where they depend on a forest that has been severely depleted by organized illegal logging. During a cold spell in 2002, more than 250 million monarchs died due, in part, to the dwindling forest canopy.

Illegal logging is a threat not only to the butterflies, but also to the people of the area. International NGOs, such as the World Wildlife Fund, have supported a growing local opposition to the illegal industry. Such opposition can be quite dangerous, however, as the murder of local environmentalist Aldo Zamora last summer demonstrates.

Last week’s raids came shortly after Mexican President Felipe Calderon announced a plan to add over $4 million to efforts that have reduced illegal logging in the reserve nearly 50 percent over the last year. Although just a few years ago residents frequently complained that authorities failed to follow-up on tips of illegal harvesting, it seems that the Mexican government is now taking the threat seriously and realizing ecotourism and other benefits of ensuring the forest remains intact.

Pre-Impact Emotional Distress in Death Case

Wrongful Death cases have traditionally had lower damage awards then serious injury awards. There are, at least, two reasons for that. Serious injury cases usually have substantial future medical bill awards. In addition, serious injury cases have long term pain and suffering awards. For wrongful death cases, there are no pain and suffering damages. If the deceased lived for some period of time before dying, then the pain and suffering while still living could be recovered in the survival actions. For the deceased who died instantly, there would be no pain and suffering damages.

 

In other jurisdictions, plaintiff's lawyers have sought to recover pre-death pain and suffering in a wrongful death case. The theory is that the deceased saw a horrible accident coming and suffered substantial emotional distress prior to actually dying. That claim has been allowed in some jurisdictions.

 

Kentucky has ruled on that issue in Steel Technologies, Inc. v. Congleton, 234 S.W.3d 920 (Ky. 2007). The deceased was killed in a  car accident and appeared to die instantly. The plaintiffs alleged that the deceased saw the accident coming and suffered substantial pre-death emotional distress. The Kentucky Supreme Court ruled that this emotional harm would have been the result of trying to recover for negligent emotional distress. In Kentucky, negligent emotional distress cases require some impact. Although the plaintiffs alleged that there was impact and that it occurred after the emotional distress began, the Court ruled that was not a correct reading of the law. In Kentucky, the emotional harm has to be caused by the impact. Since the emotional harm was pre-impact, there could be no recovery.

 

There was some hint of possible change in the future in Kentucky law. The Court noted that this case was not strong on the evidence of actually showing that the emotional distress. The Court suggested that the requirement of impact might be lifted in a case where there was reliable evidence of demontrable mental distress resulting in a medical injury proven by expert testimony. 234 S.W.3d at 930.

 

Plaintiff's lawyers in the future may want to consider raising a negligent emotional distress case where there is clear and substantial evidence of mental distress resulting in medical injuries. If that evidence can be found, the Court will consider lifting the impact requirement. Such issues could apparently be raised as either a simple negligence case resulting in the emotional harm, or a pre-death emotional harm case. 

Louisville Law Alums in Kentucky State Government

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Governor-elect Steve Beshear has only just begun to make appointments to his administration-in-waiting but it looks like graduates of the UofL law school will play a prominent role. Louisville Law already is strongly represented in the judicial branch with Chief Justice Joseph E. Lambert (class of 1974), Court of Appeals Chief Judge Sara Walter Combs (1979), and Administrative Office of Courts Director Jason M. Nemes (2003) all graduates of the school. However, UofL alums also will be taking the two top legal jobs in the Beshear executive branch. Ellen Hesen (1984) been named the governors' general counsel and Judge Combs' classmate J. Michael Brown (1979) will be heading the justice cabinet. The election of Jack Conway--a George Washington University National Law Center alum--as attorney general does prevent UofL from claiming all Kentucky's top public sector legal jobs, but at least Jack has a good pedigree: his father F. Thomas Conway is a 1968 graduate.

UPDATE: Beshear announced Friday that UofL alum Vince Gabbert (2001) will be deputy chief of staff and that general counsel Ellen Hesen will also serve as acting secretary of the Health and Family Services Cabinet.

Labor Law Renewal?

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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. 

Brandeis Documentary Showing on PBS

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"Louis Brandeis: The People's Attorney," a new documentary about Brandeis has been popping up on PBS stations across the country. The documentary was commissioned by the Savings Bank Life Insurance Company of Massachusetts (aka SBLI) in honor of their 100th anniversary. Brandeis, among his many other accomplishments, created the system of savings bank life insurance in Massachusetts and was one of the founders of SBLI. The hour long documentary provides a good overview of Brandeis' life with a slight emphasis on his days in Boston. It is notable for having some rare moving image footage of Brandeis as well as having some local luminaries as talking heads, particularly Rabbi Joe Rapport and Laura Rothstein, former Dean of the Louis D. Brandeis School of Law at the University of Louisville. It will be shown in the Louisville area on KET1 on January 8 at 9:00 pm and on January 11 at 4:00 am, and on KET2 on January 14 at 10:00 pm.

SBLI has a 4 minute preview of the documentary here.

 

Legal Writing Tip

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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."