Ariana R. Levinson's blog

Help Explaining Case Synthesis to Your Summer Law Clerks

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Now is the time of summer you may be thinking about explaining to your first-year law clerks how they can take their analysis and writing to the next level.  Or perhaps you are thinking about how to better explain case synthesis to next summer's law clerks.  One helpful recent article is Jane Kent Gionfriddo's, Thinking Like a Lawyer:  The Heuristics of Case Synthesis, 40 Tex. Tech L. Rev. 1 (2007).

It's always helpful to see how someone else uses different terms to explain a process--terms that might click with a law clerk who thinks differently than oneself.  And Part IV of the article which uses "a group of hypothetical cases that have been carefully designed to demonstrate the complex permutations of synthesizing cases in an actual problem-solving context" might be a useful exercise for initial training of law clerks, even if you don't find the article's terminology helpful.

Less Labor Law Experimentation?

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Previously, when discussing Sachs's article on Labor Law Renewal, I mentioned the Brown case. The Supreme Court issued the decision last week. The practical outcome of the decision, which holds that California's legislation is preempted, is to somewhat restrict the ability of states to experiment with enacting labor standards. As to whether California was acting in a proprietary capacity, which would permit it to enact labor standards, the Court states the following:

 

It is beyond dispute that California enacted AB 1889 in
its capacity as a regulator rather than a market participant.
AB 1889 is neither "specifically tailored to one
particular job" nor a "legitimate response to state procurement
constraints or to local economic needs." Gould,
475 U. S., at 291. As the statute's preamble candidly
acknowledges, the legislative purpose is not the efficient
procurement of goods and services, but the furtherance of
a labor policy.

Employees as Corporate Stakeholders and Minimum Labor Standards

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The Harvard Law & Policy Review recently published two articles, which while not technically labor articles, may be of interest to labor law practitioners and academics (as well as to fans of Justice Brandeis).

The premise of the first, Kent Greenfields' Reclaiming Corporate Law in a New Gilded Age, is that "[t]he time has come to reclaim corporate law as a topic of wide debate and progressive concern."  He argues that "while corporations should be appreciated for their special ability to create wealth, they should also be treated warily, given the form and power bestowed on them."

He quotes Justice Brandeis,

The prevalence of the corporation in America has led men of this generation . . . to accept the evils attendant upon the free and unrestricted use of the corporate mechanism as if these evils were the inescapable price of civilized life and, hence, to be borne with resignation.  Throughout the greater part of our history a different view prevailed.  Although the value of this instrumentality in commerce and industry was fully recognized, incorporation for business was commonly denied long after it had been freely granted for religious, educational and charitable purposes.  It was denied because of fear.  Fear of encroachment upon the liberties and opportunities of the individual.  Fear of the subjection of labor to capital.  Fear of monopoly.  Fear that the absorption of capital by corporations, and their perpetual life, might bring evils . . . . There was a sense of some insidious menace inherent in large aggregations of capital, particularly when held by corporations.

Liggett v. Lee, 288 U.S. 517, 548 (1933) (Brandeis, J., dissenting).

The premise of the second, Joseph W. Singer's Things that We Would Like to Take for Granted:  Minimum Standards for the Legal Framework of a Free and Democratic Society, is "freedom without law is not liberty, and the free market without a legal structure is not a market in any sense we would recognize."  He argues that big government is not the most significant threat to liberty in the United States.  "The far greater worry is that we will fail to give people what they want by authorizing contracting parties to give up basic rights or to impose externalities on others."

He concludes,

John Rawls might ask:  "What would the contract have said if the parties did not know on which side of the bargaining table they would be sitting?"  When we ask the Rawlsian question, it is possible we will conclude that a particular contract term does violate the minimum standards of a free and democratic society.  And when that happens, our questions may become more pointed and confrontational.  Instead of asking:  "What are the minimum standards for this kind of transaction?" we might find ourselves asking:  "What gives you the right to treat your workers so badly?  Or perhaps even:  "Would you want your son or your daughter to work under conditions like this?"

"Legal Ethics in the Employment Law Context: Who Is the Client?"

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Attached please find the outline and slides for my presentation at the Warns Institute.  I hope to publish an academic article on the topic as well.

Day Two - Warns Labor & Employment Law Institute

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Dwight T. Lovan, Executive Director, Kentucky Office of Workers' Claims provided an illuminating history of Kentucky workers' compensation.  In response to a question from the moderator, he stated that he believes that the issue of an on-the-job injury is an issue about the employer and employee relationship.  He told the story of a thirty-one year employee who refused a $70,000 lump sum payment because she would no longer get the annual Christmas ham.  He views encouraging a positive relationship between employers and employees as a primary goal of the workers' compensation system.

Thea Lee, Assistant Director of Public Policy, AFL-CIO provided an informative analysis of the relationship between domestic labor standards and the international economy.  She held out challenges to labor rights violations through the general system of preferences, Section 301 of the Trade Law, and new labor and environmental standards for bilateral free trade agreements as potential beacons of hope.

Ronald Meisberg, General Counsel, NLRB, provided an insiders view on the National Labor Relations Board. He currently has the power to unilaterally institute 10(j) proceedings and to confer with the Solicitor General on labor issues without authorization by the Board.  (He believes, however, that it is better when the Board does have to provide authorization for 10(j) injunctions because it lends "more institutional heft" to the request.)

Professor Elinor P. Schroeder, University of Kansas, provided a fascinating overview of the status of at-will employment in the United States.  If you are lecturing on or teaching the subject, you should ask her permission to use her animated maps that show the year in which each state's supreme court that has adopted either the handbook exception or the public policy exception did so.

Frederick Dennerline, of Filenworth, Dennerline, Groth & Towe, gave an overview of the intersection between ERISA and collective bargaining.  He concluded with a discussion of the Pension Protection Act, which, for certain plans facing critical funding crises, requires the negotiation of a "rehabilitation plan" by the union and the employers.

Carolyn L. Wheeler, Office of the General Counsel, EEOC, queried whether "when the Supreme Court speaks does anybody listen?"  She pointed out that one instance where the Supreme Court needed to speak twice to get the lower courts to listen was when it held there was no "pretext plus" requirement.  She believes the same may be necessary to refocus the lower courts on the proper definition of adverse action in retaliation cases which she assert is whether the action would dissuade a reasonable person from filing a charge. 

Jeffrey C. Kauffman, of Seyfarth Shaw, LLP, gave an interesting and accessible talk on the WARN Act.  Everyone was convinced that the forty-two cents to send an employee notice is money well spent.

Professor Michael Z. Green, Texas Wesleyan University School of Law, concluded with a lively and thought-provoking discussion of an employment or labor attorney's ethical obligations when preparing witnesses and defending depositions. 

Day One - Carl A. Warns, Jr. Labor & Employment Law Institute

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Today I had the good fortune to attend the Twenty-Fifth Annual Carl A. Warns Jr. Labor & Employment Law Institute.  There was a great group of speakers who conveyed useful information on a broad spectrum of legal and workplace issues.

Below is a quick run-down.  I will post again, on the second day of the conference, tomorrow and thereafter to notify you when the video of the conference and other materials are available online.

John T. Lovett, of Frost Brown Todd, LLC, summarized twenty-one labor and employment decisions decided this year.  As noted by one participant, some of the cases were counterintuitive.  For instance, in one case a plaintiff granted sexual favors to her supervisor in response to threats.  The court held the employer could escape liability by asserting that the employee unreasonably failed to use the sexual harassment policy because there was no tangible adverse employment action.  There were definitely a number of surprising decisions, so it will be worth viewing the video of his talk.

Professor Robert D. Dinerstein, of Washington College of Law, American University, provided an entertaining and informative review of disability discrimination law in the employment sector.  His materials will shortly be posted here

Professor Sharona Hoffman, of Case Western Reserve University School of Law, provided a comprehensive yet succinct overview of the ways employers are permitted to invade employees' privacy and the minimal limitations on such invasions.  Particularly interesting points included the following:  1) After hiring an employee but before the first day of employment, employers "can obtain medical information of unlimited scope" regarding the employee (with the exception of information covered by the newly enacted GINA); 2) The European Union Privacy Directive prohibits the processing of certain types of personal data, including that revealing political opinions or philosophical beliefs or that concerning sex life.

David Cohen, Executive Director, Department for Professional Employees, AFL-CIO Washington DC, gave an innovative presentation about the future of work.  He told the story of Kellogs of Battlecreek.   In the 1930s, Kellogs instituted the six hour day rather than lay-off workers.  In response, workers became so productive that Kellogs was able to reinstitute eight hours pay for six hours work!  He also pointed out that wages have stagnated since the mid-1970s but production has continued to rise due to technological change and automation.

The keynote lecture was given by Professor Charles B. Craver of George Washington University.  Professor Craver has an amazing breadth of knowledge about labor history, labor economics, and labor law.  He started by discussing how one theory for the rise of unions between 1945 and 1955 is that the competition between the AFL and CIO unions was positive for unionization.  He theorized that the same may be true of the more recent split between the AFL-CIO and Change to Win.  He told the story of how when Henry Ford was walking Walter Reuther through a plant pointing out how this, and that, and the other thing would eventually be automated, Reuther asked something to the effect of, "and who will buy your automobiles then?"  Professor Craver concluded with his proposal for mandatory worker participation at both the shop and board level.  I encourage you to check out the video of his talk!

Barbara L. Johnson, of Paul, Hastings, Janosky & Walker, reviewed this year's employment Supreme Court decisions.  "If she were a betting person," she would bet that the Kentucky Retirement System will prevail in the pending suit brought against it for age discrimination by the EEOC.

Professor Elaine W. Shoben, of University of Nevada, William S. Boyd School of Law (and University of Illinois), gave a thought-provoking talk on covenants not to compete incident to the end of an employment relationship.  She suggested that the lack of clarity in the law in this area is analogous to the lack of clarity in products liability law in the 1920s.  She predicts that, just as happened with products liability, more uniformity will develop in this area over time and the jurisprudence will be specific to this area and nontransferable to other areas of contract law.

I will post the materials from my own talk soon.

Help Transitioning to Summer Legal Work

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If you have students working with you this summer or know students who are doing legal work this summer, please share the "Transitioning from One-L to Summer Legal Work" podcast series with them.  It contains a lot of great advice that I wish someone would have shared with me, long ago, when I started my job after my first year of law school.  The announcement of the series and the link are below.

The "Transitioning from One-L to Summer Legal Work" podcast series "is hosted by the Suffolk University Law School Legal Practice Skills Program and includes podcasts created by nineteen legal research and writing faculty from around the country. Its goal is to provide 1Ls with advice on applying the skills they learned during their first year of law school to summer legal employment, as well as to help them succeed in the culture of a law firm. Click the following link for a video overview and to access the series:"

http://www.law.suffolk.edu/podcasts/lps-2008-summer.html

Students with Learning Disabilities - One Final Thought on Not Banning Laptops

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I want to thank Professor Garman for her response to my post about students who "transcribe."  Her willingness to share her personal experience opened my eyes to an issue of which I was not previously aware.  Here are her thoughts:

 

This subject makes me cringe every time it arises because it hits so
close to home for me! And please allow me to preface my remarks with a
request that you forgive me if some of what I share with you are things
you already know.

First, a personal note: I suffer from ADD. When I was in law school,
I sat in the front row in every class and "transcribed" for all I was
worth. My transcriptions turned into my outlines, from which I studied
for exams. Speaking for myself, I was MORE engaged in class *because*
I was typing what I heard. Because of my ADD, if I had been robbed of
the ability to type what was happening in class, my grades would have
suffered. The activity of typing gave my racing mind something --
well, "mindless" to do, allowing me to focus on class.

It is difficult to understand, even for those of us with ADD, the
two-headed characteristic of distractibility / ability to hyper-focus. If
we don't give our distractible brain something to "do," it wanders and
takes the rest of our brain with it. However, doing a task we're good
at and can do without much thought frees our brain to concentrate when
we need to. For me, typing let me concentrate in class. (I've talked
with other students who focused better in class if they could knit or
doodle.)

For those of us with ADD and other learning disabilities, there lurks
another, less apparent danger in removing all laptops from class. Bear
with me on this one.

There are many students who are either undiagnosed or who are diagnosed
but will not seek accommodations because of shaming and pressure from
their peers. The first group consists of those bright students for
whom school and even earning top grades, had never been difficult -- until
the frantic pace and pressure of law school. Suddenly, during their
first semester, they found themselves unable to keep up, pay attention,
stay focused, etc.

These students got tested and learned for the first time that they had
ADD. Once diagnosed, they began educating themselves on the disorder
and realized that for as long as they could remember, they had suffered
from many of its symptoms. In reality, they were so bright that the
symptoms did not impact their ability to excel in school. In fact, many
of their ADD traits likely helped them in school (e.g. "cramming" for
exams, hyper-focusing, etc.).

In the second group of students are those diagnosed with ADD who
decided against seeking accommodations in law school, even if they had
received them until that time. Whether this is because they suspected they'd
outgrown their ADD, they wanted to feel independent, they wanted to
"see if they could do it without accommodations" -- whatever the reason,
they went without help for a semester. However, sitting in that
crowded room during that first set of time-pressured exams, where all their
minds could think of was the sound of their classmates' pencils
scratching in bluebooks, they froze. Then they received that first set of
grades. Second semester, they re-thought their decision to forego
accommodations.

Both sets of these students who realize they *need* accommodations --
REALLY need them -- may decide not to get them because of all the talk
around campus. Law school being the competitive environment it is, some
"normal" students inevitably infect the student body with an
undercurrent of sour grapes directed against those who get extra time on exams.
It happens despite how we know we *should* view students with
learning disabilities who deserve accommodations. For that matter, it happens
despite the fact that such issues are meant to be confidential. These
students who desperately need and deserve this support thus may refuse
to seek it because they know their classmates may find out (and resent
them) for receiving "extra help."

There are two points here: One, students with ADD and other learning
disabilities face invisible obstacles every day. In my opinion,
removing laptops would create one more obstacle for these students. Two,
banning laptops for everyone except those with ADD or other LDs would just
make matters worse, causing even more unwelcome attention to these
already stigmatized students.

Thanks for posing this question, and for considering those students
with learning disabilities and ADD.

Rhonda Mayse Garman

(Faulkner)

Survey Results - Committee on Clinical, Legal Writing, and Pro Bono Cooperation

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Reproduced below is the announcement of the survey results from the LWI Committee on Cooperation Among Clinical, Pro Bono, and Legal Writing Faculty .  Attached is a copy of the survey.

 

The LWI Committee on Cooperation Among Clinical, Pro Bono, and Legal Writing Faculty is pleased to report the results of our 2007 survey of examples of collaboration among law school faculty (attached).

The Committee invites every legal writing professor interested in experimenting with collaboration to review the survey results for ideas and inspiration.

The survey results are useful to LRW faculty interested in ways to reach out to clinical, externship, and pro bono colleagues - whether to experiment with new teaching methods, or to use real legal problems to craft assignments, or to spark student interest in clinics, or to build bridges among like-minded faculty.

Survey results also include views on whether all law faculty currently use the same vocabulary to coach the writing process and, if not, whether that would be helpful.

While the 2007 survey respondents are not identified, they may be willing to answer questions or help you replicate a particular example of cooperation. If you would like to contact a particular survey respondent, please feel free to contact Ariana Levinson (U. Louisville) at a.levinson@louisville.edu or 502-852-0794.

The 2007 survey results soon will be posted on the LWI website, www.lwionline.org (scroll down the left column menu to Surveys, then click on Cooperation Survey). The 2006 survey results are also available on the LWI website.

A huge thank you to Susan Wawrose ( Dayton ) for summarizing the survey results. Special thanks to Tom Cobb (U.Washington) for hosting the 2007 survey tool and to the IT staff of U.Washington for all of their help. Thank you to every survey respondent for taking the time to share your examples of faculty cooperation with the Committee.

A narrative summary of the 2006 survey results was published in JALWD and is available here : http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1088137 and soon will be posted on the LWI website.

And feel free to stop by the Committee's poster presentation at the LWI Conference this summer, a project spearheaded by Deborah Schmedemann.

 

Members of the LWI Committee on Cooperation Among Clinical, Pro Bono, and Legal Writing Faculty are Rebecca Scharf (UNLV), Nancy Wanderer (Maine), Steve Schwinn (Maryland), Deborah Schmedemann (William Mitchell College of Law), Evelyn Tenenbaum (Albany Law School), Laurel Oates (Seattle), Susan Wawrose (Dayton), Tom Cobb (U.Washington), Margaret Philips (Buffalo), Tracy Bach (Vermont), Ariana Levinson (U.Louisville), and Sarah Ricks (Rutgers-Camden), Chair.

 

Happy reading!

 

Sarah

 

Sarah E. Ricks

Clinical Associate Professor

Co-Director, Pro Bono Research Project

Chair, LAWR Department

Rutgers School of Law - Camden

217 N. Fifth Street

Camden, NJ 08102

(856) 225 - 6419

 

 

Reason Not to Ban Laptops - No Uniform Learning Style

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 Thanks to Professor Brill for sharing the following thoughts:

 

There is no one uniform learning style. I have one colleague, who in
the days well before computers, wrote every word in longhand in her
classes at Harvard. She is very bright and very anal and graduated summa cum laude. I had one classmate in my class who was able to write one or two sentences after class and was able to remember everything that took place in that class months later, and he got straight A's in law school.

To the teacher, a student who is busily copying everything without
thinking about what is going on would appear to be getting almost nothingfrom the class. But that student may be a self-learner, who will read the material now and later and review those notes and then things will make sense. After all, one of the most important skills we teach is the ability to EDUCATE ONESELF. When students are asked to write a memo or brief on issues in an area of law which they have not previously
studied in another class, they must read articles, encyclopediae,
treatises, cases, statutes, and other sources of law, and synthesize the
material and formulate applicable principles and analogize or distinguish fact situations and many other steps to predict results or formulatepersuasive arguments. They largely must do it on their own, as they will in practice. One cannot practice law by what one learned in law school classes. There always will be new issues, or unfamiliar law, or rules different in a particular jurisdiction than what they have studied in
their classes.

So, some students learn very well from Socratic questioning; some learn
best by passive listening; some learn by writing ...through the pen or
keys into the brain....etc. etc.

When law faculty start banning laptops in class because students appear not to be paying full attention or taking part they are doing so
primarily because of their own egos. How can a student possibly not want to take part in my brilliant presentation of the material?

That isn't to say that the teacher should not discuss these things with
the students, and offer the students their views on the best ways of
learning, for the students to try, and to evaluate. But in the end,
each student must decide what is best for that student, for better or
worse.

 

Ralph Brill (Kent)