Ariana R. Levinson's blog

Legal Writing Tip - Adverse Authority

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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.

"Aging of the National Labor Relations Board" and the Role of Administrative Agencies

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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.

"The Law of Termination" and Forums for Dispute Resolution

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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.

"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. 

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. 

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."

Editing Tips for the Busy Attorney

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You can find my piece Editing Tips for the Busy Attorney, Ky. Bench & B. Nov. 2007, at 31 at the following link, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1031740.

Using Wikis to Learn Legal Writing

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I recently read Beth Simone Noveck's article Wikepedia and the Future of Legal Education, 57 J. Legal Educ. 3 (March 2007). In it, she discusses teaching law students how to write wikis. She suggests law students are "ideally suited to contribute their newly developed expertise" to substantive wikis. She also suggests using an internal, class-based wiki so that students can learn from each other.

In the past, I have used wikis only as a reader, so do not profess to have expertise in their use. But I am always interested in ideas for teaching legal writing, and this seems like a good one.

I envision using wikis to teach legal writing in the following manner. First, the student writes a short piece, perhaps an IRREAC exercise or a blurb on a legal topic of interest to the student, and posts the piece to a wiki. Next, the student edits someone else's post to a wiki, perhaps the IRREAC of another student or a publicly available post on a topic of interest to the student. Finally, the student returns to the student's original piece and edits it, using the same editing techniques applied to edit another's post.

Another interesting use of a wiki in a legal writing class is that developed by Peter Friedman. He has used a wiki in his legal writing class to have his class compose a checklist for writing a persuasive brief. You can find out about this exercise at http://www.case.edu/pubs/casemagazine/fall2006/Wiki_feature_edit.pdf , and you can view the checklist at the wiki, http://wiki.case.edu/Brief_writing_checklist .

I also envision using wikis as a component of legal writing across the curriculum. Writing and editing wikis is an opportunity to practice concise legal writing that, as discussed in Noveck's article, fits easily into a substantive law class. If students had experience with writing and editing wikis in their legal writing class, they would make the connection with writing across the curriculum.

Moreover, even if students are not writing or editing wikis for class, their use might provide an excellent opportunity for students to practice legal writing, collaborate with others in the legal community, and provide useful information to the public. From time to time, one hears antidotal stories about a student obtaining an employment opportunity because of a webpage. Certainly, writing and editing a wiki might also lead to opportunities. In the future, when I am counseling and speaking with students about writing opportunities, this is one that I will mention.

 

Law Review Article Selection Process

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 I had the opportunity recently to read Leah M. Christensen & Julie A. Oseid, Navigating the Law Review Article Selection Process:  An Empirical Study of Those with All the Power - Student Editors, 59 South Carolina Law Review 465 (forthcoming 2008) (available at http://papers.ssrn.com/abstract=1002640).  I recommend it to students, practitioners, and scholars interested in publishing in law reviews.  As a basic legal skills instructor, I was heartened to learn that student editors value interesting and well-written manuscripts.  They care about "technical writing including: grammar, punctuation, spelling, citation form, proofreading, and easy-to-read formats."

The methodology used by the authors was to survey student editors and ask them about the selection process used and the factors that the student editors consider.  I would like to see a follow-up inquiry.  Perhaps someone can convince student editors to record, via Ipod or other recording device, their contemporaneous thoughts as they sit down to review and select manuscripts.  This might provide confirmation of the study results, and it might provide other interesting insights.

As an undergraduate major in sociology, I did research which involved interviewing college students about their parents division of labor in the household.  While some (rare) students professed that their father and mother equally divided household labor, inquiry into specific tasks sometimes revealed otherwise.  For instance, the tasks of planning, organizing, and making lists were often times performed by wives but not included in a facial assessment of the division of labor.  These time-consuming tasks actually rendered the household labor less equal than the college student believed.  In a similar manner, an inquiry into the actual contemporaneous thought process used by the student editors might reveal some interesting insights.