Ariana R. Levinson's blog
Last week my seminar discussed roadmap paragraphs. Most of you (who read this blog) are probably already familiar with a roadmap paragraph, one that sets out the points that will be discussed in more depth in the sections or sub-sections to follow. It is vital that an introduction contain such a paragraph because legal readers are busy individuals who like to see the conclusion and supporting points up-front. The roadmap paragraph is also important because it provides an overview of what will follow. The roadmap helps the reader to place the sections in context as they read. It also permits those who read no further than the introduction to get an understanding of the entirety of the argument. Roadmaps are used in all forms of legal writing including briefs and articles.
Building upon the idea of the roadmap paragraph, Volokh suggests an interesting variation that may help the flow of your article. Rather than use one paragraph as a roadmap, try including in your introduction one paragraph on each of the points to follow. For an excellent example of such an approach, we read Jean Sternlight's article, Creeping Mandatory Arbitration: Is it Just?
For a prior related post on umbrella sections, click here.
This semester I have the distinct pleasure of teaching a writing seminar on advanced labor and employment issues to a small group of students. As in past semesters, I hope to provide useful information from my class to practitioners via this blog. We are using Eugene Volokh's Academic Legal Writing as our text book. We are also reading selected articles.
Last week, one of the articles that we read was Theodore J. St. Antoine's, Mandatory Arbitration: Why It's Better Than It Looks, 41 U. Mich. J.L. Reform 783 (2008). If you represent employers and are setting up a mandatory arbitration system for employment claims, the latter half of the article contains a useful discussion of precautions an employer can take to assure the system will withstand legal challenge. While St. Antoine does not endorse a one-size-fits-all approach, he suggests using a "neutral designating agency," "neutral arbitrators," providing "for more than minimal discovery," requiring "a written award" and all relief "that would otherwise be available in court," using the applicable statute's statute of limitations, and imposing only a "modest ‘tribunal fee.'" For those interested in the precise state of the law, the article contains more extensive discussion of the governing legal authority.
As the school year starts, professors and attorneys may be interested in reading Frank Tuerkheimer's short two-page piece (available to Westlaw subscribers only) in 58 Journal of Legal Education 531 (2008). Tuerkheimer laments the editing out of attorneys' names in casebooks.
As a former labor law attorney, I too always look for the attorneys' names when reading a labor law case. Labor law is governed by federal law, and attorneys nationwide know each other. It is also a field filled with history in which past attorneys' strategies have shaped the development of the law. When teaching labor law last year, I looked up the attorneys' names for every case and shared what I knew about the attorneys with the class.
Yet, in other fields, such as Wills and Trusts, state law governs while the casebooks contain cases from across the country in different jurisdictions. Thus, at least to someone like myself who has not practiced in that field, it seems less important for the professor to look up the attorneys on each case and share information about them with the class. It does seem to mean, however, that the students will not then benefit from learning about the attorneys who have practiced and do practice in that field in their jurisdiction and the strategies those attorneys have successfully used.
In such fields then, for practicing attorneys, the job of teaching the new associates, clerks, interns, and externs about the attorneys and the strategies in the field becomes even more important. I hope you will all take a few extra moments here and there to fill in those students working in your office this Fall about this important information they may not be learning in class.
Eugene Volokh's article Correcting Students' Usage Errors Without Making Errors of Our Own, 58 J.L.E. 533 (2008) reminds those of us who have been teaching or practicing for some time of something we probably learned early on when commenting on the writing of a student or new lawyer: there is a difference between an actual usage error and a manner of writing that most lawyers prefer. For example, as a new professor, I was surprised to find that many students use "can not" rather than "cannot," when, throughout my life, English teachers had impressed upon me that only the latter was correct. (In fact, my spell-checker is marking "can not" incorrect now!) Nowadays I do point out errors to my students, but, more importantly, I talk to them about their audience. Volokh uses the example of how most attorneys prefer "judgment" to "judgement." By focusing on what trained legal readers expect, I avoid misrepresenting a spelling or usage as incorrect when it may be permissible. But I also find that such a focus has the added benefits of making the students feel welcomed into a certain tradition of writing and keeping them more engaged. So remember, next time you pick up your pen or pencil to edit a student or new lawyer's work, try to comment on the acceptability rather than the correctness of the writing.
We had another interesting and productive day at the Warns Institute today.
The day began with Jeff Calabrese's somewhat depressing but engagingly presented overview of the state of national and Kentucky of unemployment insurance. He noted that the Kentucky fund is bankrupt and concluded with thoughts about what types of measure the state can take to repay federal loans and refinance the fund: cutting benefits, raising unemployment taxes on employers, and implementing a tax on employees.
Next, James Fogle discussed Kentucky workers compensation. He discussed an interesting case where a teacher was injured while volunteering as the sponsor of the Beta Club. The Supreme Court upheld the unemployment board's decision that she was entitled to benefits.
Next, Professor Ann McGinley gave a talk that was one of the highlights of the day. She updated us on the ADA amendments. Her recommendations to employers include the following: err on the side of granting accommodations; provide more training and education to insure retaliation and harassment do not rise as a result of perceived special treatment; do not refuse an accommodation, including working at home, if others have received the accommodation; and be aware that more leave than granted under the FMLA may be required as an accommodation.
The other highlight of the day was John Higgins's NLRB update. He updated us on the cases waiting to be decided by the full board including two types not previously discussed in the Board's recent public interview. In one, the Board will decide whether an undocumented worker who did not submit false papers and was hired by an employer who knew the worker was undocumented is entitled to back pay. The others are bannering cases where the issue is whether bannering a neutral to pressure the neutral to cease doing business with another company violates the secondary boycott provisions. He also updated us on a significant issue now pending before the General Counsel: whether to issue a complaint on a charge alleging that a pre-dispute agreement to arbitrate cases and to waive class arbitration violates employees' Section 7 rights.
Next Professor Marty Malin spoke on his upcoming article, the Paradox of Public Sector Labor Law. His practical advice for public sector employers and unions in Kentucky was two-fold. First, forget the law and try to work out systems that foster employee participation in decision making, and, second, draft and implement legislation that creates a different model, than the NLRA model, for public sector representation.
Bonnie Glantz Fatel and Paul A. Friedman gave a fabulous presentation on bankruptcy for labor and employment lawyers. They explained complex concepts in a way we could all understand. And as one bankruptcy judge told Paul at some point, in bankruptcy ERISA means the Every Ridiculous Plan Since Adam.
Carolyn Wheeler shared the EEOC's perspective and her insightful thoughts about the interplay of litigation, court decisions, and legislation. She cautioned that despite the recent changes to the ADA, pleading rules may still prove perilous for some. She queried why the courts readily accept a claim that an employer discriminated against an employee because of the race of those with whom the employee associated (Barrett v. Whirlpool, 6th Cir.) but they do not use an equivalent associational justification to accept a claim of retaliation based on association (Thompson v. North American Stainless, 6th Cir.). She stated her belief that as a practical matter Gross v. FBL Fin. Servs., Inc. probably doesn't considerably harm employees because they prefer not to have to bring a mixed motive claim anyhow.
The day concluded with Hans Schmidt's useful reminder about the Model Rules of Professional Responsibility that bear on multiple representation issues. He pointed out that each jurisdiction has its own rules. Be sure to double check Kentucky's new rules, effective July 15, because some that he discussed, including 4.3 on unrepresented persons, do differ from the Model Rules.
The day began with David Leightty's review of Kentucky employment law. When I was teaching labor law, we were wondering about the rules governing the racetracks in Kentucky since the NLRA declines jurisdiction over tracks. I learned from the talk that Kentucky has an equivalent protection to Section 7 that applies to the tracks. Mr. Leightty also discussed an interesting case dealing with a provision, KRS 336.700(2), that prohibits waiver of "a right or benefit as a condition of employment." McGown v. Gray Ky. TV, Inc., 2008 Ky. App. LEXIS 342 (Ky. App. 2008) (motion for discretionary review pending).
Next Professor Ken Dau-Schmidt gave the Supreme Court review. Notable in light of his extensive experience with law and economics, he stated he could find no underlying empirical rationale that explains all the cases this term! He discussed an interesting (at least to those who will be teaching trusts and estates and employment next year) ERISA case, Kennedy v. Plan Adm'r, 129 S. Ct. 865 (Jan. 26, 2009). In this case, the court found that a plan administrator acted properly by paying out benefits to a designated beneficiary, even when a divorce decree purported to divest that beneficiary of the benefits.
The session on the Obama legislative agenda focused on the EFCA. Ross Eisenbrey gave a detailed statistical presentation documenting the recent growth in income inequality, stating that it is "a rise in inequality more dramatic than anything since the gilded age." Bill Luyre addressed the pros of the act, and Bob Covington made a valiant attempt to raise the cons of the act. (Yes, I support passage of employee the act.)
Professor Cynthia Estlund's keynote lecture was a highlight of the day, definitely living up to my expectations. We are all looking forward to reading her forthcoming book on Regoverning the Workplace in an Era of Self-Regulation. Her theme: "No self-regulation without representation."
Next Victoria Lipnic provided a helpful and detailed review of the new FMLA regulations. She also provided a heads up as to legislation that may be in the works to extend the applicability of the leave's availability to anyone with a deployed family member, not just someone in the guard or reserve, and to clarify that the caregiving provision for veterans would apply for five years after the individual suffered the injury.
Another highlight of the day was Professor Mark Rothstein's talk on GINA. He posed the question whether GINA was a "foot in the door" or the "one bite in the apple" that means passage of more comprehensive and effective legislation will not be forthcoming soon. He also noted the need for new technology that would permit health care providers to easily separate out categories of medical information appropriate for disclosure.
The day concluded with Professor Robert Hillman's talk on lawyers leaving firms. He noted that when a law partnership breaks up, it is often more acrimonious than a typical divorce because there is more money and more ego on the line.
Yesterday, I had the pleasure of speaking as part of the Kentucky Legislative Research Commission's CLE seminar at the House Chamber in the Capitol Building.
Attached here are the slides of the first presentation on "Ex Parte Communication and Confidentiality Issues with Organizational Clients," and the related article.
Also attached here are the slides of the second presentation on "Effective Strategies in Arbitration." You can download a copy of the related article.
If you are representing clients dealing with workplace privacy issues, you may be interested in Lisa Smith-Butler's article, Workplace Privacy: We'll Be Watching You, 35 Ohio N.U. L. Rev. 53 (2009).
For those representing an employee who "believes an employer has gone too far and invaded his or her privacy," the article provides a checklist. While the list neglects to include some of the sources of law mentioned in the article, such as the National Labor Relations Act or a collective bargaining agreement, and could be added to, with for instance state laws similar to the Electronic Communications Privacy Act, it provides a good starting point.
The article also provides recommendations for best practices which may be helpful to attorneys representing employers.
If you are advising someone who is applying for a job or an employer who is selecting among applicants, Robert Sprague's article Rethinking Information Privacy in an Age of Online Transparency, 25 Hofstra Lab. & Emp. L.J. 395 (2008) may be of interest. Sprague provides an overview of the law relating to employer's use of information available on the Internet to select employees.
His thesis is that privacy has been defined too narrowly to encompass only secret information or conduct. He comments that "[n]ew forms of communication allow others to view what are intended to be at least somewhat private conversations. Protecting these conversations requires an attitudinal shift towards acceptance of the idea that just because a few people have access to information does not mean it is no longer private."
He proposes reforming applicable laws to "prohibit employers from using publicly-available personal information that could be obtained through an Internet search in their hiring decisions." Alternatively, he recommends passing statutes that would requires employers to inform an applicant before obtaining information from the Internet, to inform the applicant if such information about the applicant was used in deciding not to hire the applicant, and to provide the applicant a copy of the information used.