University of Louisville Law Faculty Blog

Humanities Class Speech

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On April 1 I spoke to the Masterpieces of the 19th and 20th Centuries class in the Division of Humanities of the University of Louisville's School of Arts and Sciences.  I received the following from Dr. Allen Share, the professor in the course:

 

Dear Jim,

Thank you so much for speaking to my class last Thursday. Your talk about your own experiences tied in wonderfully with our book for that day--William Styron's "Darkness Visible: A Memoir of Madness"--as well as with our broader theme of this Humanities Division course in examining the connections between the humanities, literature, illness, and the world of medicine.

I so do appreciate your taking the time to do this, especially as my class followed directly upon the completion of a class of your own in the School of Law. I do hope that one day I can return the favor and speak to one of your classes on a subject I have studied or have personal knowledge of. One of the things I have always loved about the academy is that most of us are quite happy to be able to speak to each other's classes--I used to enjoy it every year when Dee Akers was teaching his seminar to third-year law students on Technology and the Law and asked me to talk about the history of technological change and development and to highlight some of the ways in which technology came to involve legal issues and questions. Part of what is so nice about this is that we just do it--if the more than two hours you spent with us were calculated into "billable minutes" I'm afraid that I'd have to ask the President and the Provost to siphon off some of the funds being lavished on people who have left the university and seemingly received golden parachutes for doing so! This does make me wonder--do you happen to know how I could get one of those deals?!?

Seriously Jim, I am most grateful that my good colleague "in the office next door" took the time and trouble to speak with us last Thursday. Would you be good enough to share your friend Elyn's email address with me? I should very much like to write her a bit about what I learn from her book, which I am so glad you told me about. I also will look forward to speaking with you again and to getting to know you. I was intrigued when you said you loved classical music "before Beethoven." I too love early music--I must tell you about the concerts I love attending at The Cloisters in New York City--but I also love many of the 19th century composers, with Antonin Dvorak a particular favorite. I am already looking forward to our talks about music and about much else.

Again, thank you Jim--you made a wonderful presentation to our class and I am most grateful.

Sincerely yours,

Allen Share

Dr. Allen J. Share

Distinguished Teaching Professor

Division of Humanities

University of Louisville

303 Bingham Humanities Building

Louisville, Kentucky 40292

Issues in the Workplace Arising from New Technologies and How Arbitrators Are Dealing with Them

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  My article, What Hath the Twenty First Century Wrought?  Issues in the Workplace Arising from New Technologies and How Arbitrators Are Dealing with Them, forthcoming in Transactions:  Tennessee Journal of Business Law is now available on SSRN.

Here's the abstract. 

Employees are using new technologies.  They are using GPS, electronic mail, the Internet, cell phones and other handheld devices, blogs, Twitter, texting and social networking sites.  They are using new technologies while at the workplace and while away from the workplace, while working and while engaging in personal pursuits.  They may be using the technologies appropriately or to the detriment of their employers.  Employers are also using new technologies.  They are monitoring their employees, both in the workplace and away from it.  They too may be doing so appropriately, or they may be doing so in a manner invasive of their employees' privacy or dignity.

Needless to say, the use of these new technologies gives rise to employment disputes that differ in kind from those of times past.  Many scholars have written about the failure of the law to keep pace with the workplace changes brought about by new technologies.  Many have also written about the failure of the federal and state statutory laws and of the common law to systematically and sensibly resolve employment disputes arising out of the use of new technologies.  But one place that disputes arising out of new technologies are being grappled with in a systemic manner, and handled in a relatively sensible manner, is by arbitrators in the union sector.

This article surveys the types of issues being arbitrated, the criteria arbitrators use to decide the cases, and the outcomes of the cases.  It builds on and updates my prior work in the area. Section I provides an introduction to the article.  Section II provides an overview of my research.  Section III addresses the types of cases involving new technologies arising as challenges to discipline for lack of just cause.  Section IV addresses the related issue of employer monitoring of employees.  Section V focuses on cases involving new technologies that have arisen under provisions of the collective bargaining agreement other than a just cause provision.


 


 

 

Split decision in Ebay v. Tiffany: eBay Wins on Trademark Issues, Looses on Advertising Claims

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The Second Circuit Court of Appeals today issued its ruling in the eBay v. Tiffany case. TIffany sued eBay claiming that eBay was liable for trademark infringement and false advertising because sellers sold counterfeit merchandise on eBay's site. The basic trademark argument was that eBay was contributorily liable for the infringement because it did not do enough to prevent fakes being sold on its site. The court upheld the judgment of no infringement of trademarks by eBay, but reversed on the question of whether eBay's advertising that consumers can purchase Tiffany products on the auction site was misleading. I haven't been able to read a copy of the opinion yet, but here is a nice summary.

Ivy Tech Community College Speech

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On March 16, on behalf of the MHAKY Speaker's Bureau, I addressed a group at the Ivy Tech Community College of Southern Indiana's Listen and Learn Speakers Series in Sellersburg, Indiana.  Today I received the following communication:

 

 

Dear Professor Jones: I wanted to thank you for addressing our Listen and Learn Speakers Series this week on the topic, “Severe Mental Illness, Stigma, and the Value of Treatment”. As was evidenced by the number of questions asked during and following the presentation and the number of individuals who remained to speak with you one-on-one, I would say the audience found the presentation very helpful. 

I appreciate you sharing your time with our group.

 Sincerely, Mark Kinkle, MHA, RRT, CPFTAssistant ProfessorDean, School of Health Sciences            School of Public and Social Services

Bellarmine College Nursing School Talk

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Today I spoke to around 20 nursing students in the Psychiatric Mental Health Nursing class at the Lansing School of Nursing and Health Sciences at Bellarmine University in Louisville.  Afterwards I received the following from the professor for the course, Dr. Vicki Burns:

 

 

Dear Jim,
I just wanted to formally thank you again for the wonderful and informative presentation to my Psychiatric/Mental Health nursing class today. I've been teaching this topic for many years and have also worked both inpatient and outpatient psychiatric facilities in the past, and I have to say I learned volumes myself. Many of my students told me after your talk that it was one of the best classes they've attended in the program. Thanks so much!
Sincerely,
Vicki
Vicki Ellison Burns, PhD, RN, FNP-BC
Assistant Professor
Lansing School of Nursing
Bellarmine University

Advocating for Unpopular Clients

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Recently, a group called Keep America Safe posted a web ad asking, "Who are the al Qaeda Seven?"  The ad's apparent purpose is to besmirch lawyers who had advocated for detainees at Guantanamo Bay and are now working for the justice department.  The ad implies that, by representing Guantanamo detainees, these lawyers were somehow connected to al Qaeda and disloyal to the United States.

 

But that flawed position ignores some of the key values that undergird our legal system.  Our system of justice requires that both parties to a controversy have the opportunity to be represented by counsel.  As a society, we value this adversarial process highly, because we believe that allowing opponents to grapple with cases in the courtroom is the best way to uncover the truth.  This means lawyers must sometimes represent unpopular parties or causes.  For this reason, professional rules have long urged lawyers not to turn down a cause just because it is unpopular.

 

Meanwhile, the world is watching to see how we deal with the Guantanamo detainees.  If we sentence a detainee to prison or death, his trial should be fair, with no implication that he was framed or railroaded.  A primary way to defuse any such implication is to allow him the full benefit of a vigorous defense by counsel. 

 

It is worth noting that some detainees' lawyers successfully argued their causes in the United States Supreme Court.  One such lawyer, for example, prevailed in the Hamdan v. Rumsfeld case, which challenged the legality of the Bush administration's military commissions.  A majority of the Supreme Court agreed with him.  That lawyer fought for the ideals of our legal system.

 

It is also worth noting that some Guantanamo detainees were released without ever being tried, which suggests that they were not guilty of a crime.

 

We should highly value those lawyers who present a strong defense for unpopular clients, including Guantanamo detainees. By lessening the possibility that the innocent might be wrongly convicted, those lawyers allow us to be proud of the fairness of our legal system and to proclaim that fairness to the world.  We do ourselves no service if we try to frighten them into inaction. 

ADR & the Economic Crisis - Materials Posted

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The Conflict Resolution and the Economic Crisis conference materials are now available online.

Save the Date - 27th Annual Warns Labor & Employment Law Institute

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The 27th Annual Warns Labor & Employment Law Institute will be held on June 24 and June 25 at the Galt House in Louisville, KY.

William Gould, a Professor of Law at Stanford University and former Chair of the National Labor Relations Board, is the keynote speaker. Mr. Gould is a prolific scholar of labor and discrimination law as well as a critically acclaimed author of nine books and more than sixty law review articles.

Complimentary wireless access, as well as hard wired Internet connections, will be available in the meeting rooms.

Save the date! More details are forthcoming.

http://www.law.louisville.edu/node/4099

 

"Issues in the Workplace Arising from New Technologies and How Arbitrators Are Dealing with Them"

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I had the honor of serving as the ABA Labor and Employment Law Section ADR Committee's Scholar in Residence at their mid-winter meeting.  Attached are the slides of my closing presentation, "What Hath the Twenty-First Century Wrought? Issues in the Workplace Arising from New Technologies and How Arbitrators Are Dealing with Them." All conference papers are available on the Committee's web-page

"A Scholar's Guide to Lawyering Skills that Just Might Tip the Scales in Close Arbitration Cases"

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I had the honor of serving as the ABA Labor and Employment Law Section ADR Committee's Scholar in Residence at their mid-winter meeting.  Attached are the slides of my opening presentation, "A Scholar's Guide to Lawyering Skills that Just Might Tip the Scales in Close Arbitration Cases."  All conference papers are available on the Committee's web-page