Archives for the month of: August, 2007

I always enjoy the American Bar Association meeting because I have the chance to visit with friends and legal professionals from both areas of my professional life. This means the chance to hang out with Labor and Employment Law (LEL) Section members and the folks associated with legal education. In addition, at the annual meeting there are always new people to meet as well as much to learn and do. This year’s annual meeting was in San Francisco, a fun city with great food (yes I am a foodie), so that was a plus. One thing I’d forgotten, but was quickly reminded of once I began to walk around, was that it is much breezier and cooler there than back in Fayetteville.

(L-R) Me, Jim Jones, Assistant Staff Director LEL Section, Charles Powell IV, Employer CoChair of the CLE CommitteeThursday evening, not long after arriving at the hotel, it was time to go the LEL Section Council dinner. The dinner was in the lovely City Club of San Francisco. Members of the council and their guests mixed and mingled while we were treated to music from a jazz trio. Waiters circulated with trays of fancy hors d’oeuvres. Dinner — surf and turf with sea bass, steak, scalloped potatoes and broccoli — was delicious. The highlight though, besides of course visiting with old friends and meeting new acquaintances, was dessert — chocolate mousse in a chocolate cup. Yuummm!

The next morning I attended the meeting of the LEL Council as an at-large member. We managed to get through a fairly long agenda in a relatively short period of time. Some of the items on the agenda included a number of reports on the upcoming November stand alone CLE conference in Philadelphia. The program is an enormous undertaking and will be exceptional in terms of the number and variety of CLE courses offered and its outreach to law students.

Student members of the ABA can join the LEL Section for free and there is a conscious effort within the section for student outreach. At the November program, there will be a track on Saturday devoted entirely to law students to familiarize them with opportunities in the field of labor and employment law. In addition to outreach to students, the section created a task force, chaired by Professor Christine Cooper, to create greater interest in participating in the section among legal academics. The incoming chair of the section, Jim LaVaute, is planning to attend the LEL Section breakfast and business meeting at the American Association of Law Schools to meet and recruit new members to the section.

Other items that came before the council included a number of administrative reports including those from the section’s Pro Bono Committee, ABA Relations, Membership, Government Outreach and Equal Opportunity in the Legal Profession Committees, among others. After the conclusion of council business, the meeting was adjourned by Chair Pat Slovak, who was given a standing ovation by council members for her excellent stewardship of the section.

We each received a box lunch (mine had an Italian sub, pickle, chips, pasta (bland) and a really gooey turtle brownie that was so deadly good I decided not to eat it all) so that we would not miss the section’s opening plenary session. During the brief session, Pat presided and shared the Section’s plans for the upcoming year, and the nominating committee announced the nominations for new council members and officers. The plenary was followed by a panel on “Work Life Balance Issues,” but I had work to do, so I went back to the room.

Cruz ReynosoLater that afternoon there was the Robert J. Kutak Foundation Award Reception honoring Cruz Reynoso, professor emeritus of the University of California School of Law at Davis and formerly an associate justice of the California Supreme Court (among his many other distinctions). Among the attendees were a number of deans and members of the Section on Legal Education. Justice Reynoso’s acceptance speech was eloquent, humble and quite witty. It was an honor to meet him and to celebrate his accomplishments. Friday evening was the LEL section party at Ruby Skye, a trendy San Francisco nightclub. It was a great time in a fun setting. That’s all I’ll say about that (and no pics :-).

At 7:30 a.m., bright and early Saturday morning – did I mention 7:30 a.m.? – was the deans’ breakfast. At this annual event, representatives from the AALS, the Section on Legal Education and the LSAC provide updates to the deans and take questions from the group. There were a good number of deans present, and I had an opportunity to visit with several who had been so supportive during my first year, as well as my hero, Dean Dennis Shields, who admitted me to law school.

Bill Rakes, the outgoing chair of the section, was the first speaker. He reflected on his years as chair and mentioned the conclaves on legal education that occurred on his watch. He also shared some of the difficulties with the bar passage interpretation, the forces prompting it, and shared the fact that it did not go to the ABA House of Delegates, but instead has been withdrawn for further consideration. He also noted the fact that the ABA must meet with the federal Department of Education to review its status as the accrediting body for law schools. These are some of the issues that will be facing Justice Ruth McGregor as she assumes the role of chair of the section.

The next speaker was Justice McGregor, who talked about her plans for her year as chair of the Section on Legal Education. In addition to the pending issues, she will continue the work of the task force on the accreditation process by looking more specifically at three topics. The first is whether the accreditation process should focus on outputs as a measure of the success of a law school’s academic program. If so, what are the appropriate measures? How are those measures properly quantified or evaluated? The second topic is the transparency of the accreditation process. In what way could/should the process be made more transparent? For example, at the SEALS Conference, a suggestion was made to provide the equivalent of opinion letters to schools on the standards. The third topic is whether terms and conditions of employment should be considered in the accreditation standards. Justice McGregor would like this committee to think about whether there are other ways to accomplish the goals of legal education without these requirements and, if so, to develop these ideas and compare them to the current language. As you can see, the section will be working on significant and weighty issues under the guidance of the new chair.

Ellen Rutt, Chair of the LSAC Board of Trustees, was the next speaker. She mentioned Phil Shelton’s retirement and the selection of Dan Bernstein as the new CEO of LSAC. She shared the Board’s retreat topics with the deans (see last blog entry) and mentioned upcoming projects during her tenure as chair. She stated that LSAC is looking for grant proposals and new ideas from its members. During her tenure, Chair Rutt will also appoint a work group to look at the issue of LSAC’s disability support system. This will involve surveying applicants who applied for accommodations to get their perspectives on the process and to determine how it could be improved. Chair Rutt will also work to create greater transparency in the LSAC leadership track and work to improve communications about its activities and initiatives.

Dan Bernstein and Dennis ShieldsDan Bernstein, the new CEO of LSAC, followed Chair Rutt’s presentation and was very brief. He mentioned there has been a 2 percent increase in the number of tests taken, but a 4 percent decrease in the number of applicants to ABA law schools. He mentioned the LSAC’s co-sponsorship of an upcoming conference for law faculty of color. He shared his belief that the forums play an important role in the applicant recruitment process and talked briefly about an upcoming audit of the test and the need to consider new products and services, and perhaps to branch out globally.

The final speaker of the morning was Carl Monk, the Executive Director of the AALS. He shared with the deans the fact that the 2007 annual meeting had the largest attendance ever, and that the 2008 meeting will be in New York City. The theme of the 2008 meeting is “Reassessing Our Roles In Light of Change.” The luncheon speaker will be Dennis Archer, Chairman of Dickinson Wright, PLLC, in Detroit and the former mayor of Detroit. Justice Sandra Day O’Connor is also scheduled to speak at the conference. The mid-year professional development programs, which will be held in Cleveland, include a two-day program for law librarians, a program for constitutional law professors and a program on the future of the rules of evidence in light of scientific and technological advances. Executive Director Monk also shared the fact that International Association of Law Schools (IALS) has 140 member schools from 45 countries, with the number of foreign members exceeding that of American schools. The IALS is planning two conferences — one in Suzhou, China, and the other in Hamburg, Germany. Finally, Executive Director Monk reflected on his tenure at AALS, spoke a bit about his upcoming retirement and announced that Professor Judy Areen, Georgetown University, is chairing the search committee for his position.

(L-R) LeRoy Pernell, Dennis Shields, Veryl Miles, Peter Alexander, Me, Fred White

The educational programs of the section on Legal Education took place later that afternoon. After a hurried but tasty lunch of samosas and saag at an Indian fast food restaurant named “Nan-N-Curry,” I hurried to a session entitled, “The Internationalization of Legal Education.” The panel presentations were varied and thoughtful. Carl Monk spoke on the creation, structure and programs of the IALS. The core value of the association is scholarship, so each presenter at its conferences must also bring a written paper. One of the early questions the association looked at was how the structure of legal education in other countries affected the ability of member schools to work together. Upcoming conference participants will discuss the essential components that should be included in the various law school courses if they are to take on a comparative format.

The association adopted English as the official language, but is seeking funding to cover the costs of providing translations. Law faculty might be interested in the association’s Web site, which provides notice of upcoming international legal education conferences as well as visiting faculty opportunities. Each of the 85 selected participants has been asked to write a paper on three things others should know about the legal system in his or her country. Executive Director Monk stressed the importance of the work of the association and reminded us that as law schools we are “not just training future lawyers, we are training future national and world leaders, and there is nothing more important than for them to learn about other countries.”

Steven Gillers, Professor of Law at New York University, was the next speaker and his talk on globalization and legal ethics led me to think of the work of our own Professors Kelley and Judges on their Ukraine initiative. Before getting to the substance of his talk, Professor Gillers described the scope of NYU’s international programs with which he is involved. There are three components: 1) NYU brings about 331 foreign trained lawyers per year to the school to obtain their LL.M. degrees, 2) prominent foreign law professors are invited each year to teach at the law school and 3) NYU has a partnership with the National University of Singapore to provide joint LL.M.s to international and American students.San Francisco

Turning to his topic of globalization and legal ethics, Professor Gillers stated that the U.S. has the most mature and developed body of legal ethics of any country. He said this provides a competitive edge to U.S. firms because most clients will migrate to firms that observe the rules of ethics. He believes that the ABA section on Legal Education should take an active role in promoting the teaching of ethics in foreign law school by doing two things. 1) Establish criteria for accrediting non U.S. law schools so those graduates can be admitted either by the bar or by motion to practice in the states. As a condition of obtaining this accreditation, the ABA would insist that a school offer instruction in American legal ethics or comparative legal ethics. 2) Establish, for graduates of non U.S. law schools whose program would not warrant accreditation, a rule that would allow them to take the bar so long as they were required to take at least two hours of legal ethics.

The next speaker was Justice McGregor whose remarks focused on the topic of globalization and standardization of licensing requirements. She told us that the Conference of Chief Justices approved a resolution directed at the states’ highest courts to admit graduates of Australian law schools to sit for bar exams. She talked about the significance of the 1995 GATS agreement on services, which is administered by the WTO. The existence of this trade agreement to open legal service across national borders means that the regulation of legal licensing is no longer merely a domestic issue. This will create profound pressures on domestic regulation of admissions and entrance to the practice of law. Article 2 of GATS requires most favored nation status to other members of the WTO. This would require foreign law firms to be treated as favorably as domestic law firms. Once these provisions go into effect, U.S. lawyers could be disadvantaged relative to foreign lawyers because the treatment would require that a state give lawyers of a particular WTO country the same privileges that that country gives to U.S. lawyers. This could raise federalism and other constitutional issues. Does the treaty power of the 10th Amendment give the federal government the right to set the standards for attorney licensure or is that power reserved to the states?

The last speaker on this panel, Colin Tyre, President of the Council of Bars and Law Societies of Europe, talked about how issues concerning cross-border practice of law are being played out in the European Union. The policy of the EU is free movement of labor across borders, including lawyers. This has led to the need to create a system of education so that the meaning of a degree in one country is the same as that in another. At the professional level, there are few instances when a lawyer from one country can be denied the right to practice in another. The European Court of Justice requires a country to allow a lawyer with a law degree from one country to carry out professional training in another, so long as there is a correlation in the subject matters studied in both countries. The Counsel of Bars and Law Societies of Europe has a training committee consisting of a panel of experts on academic and professional training.

San Francisco StreetThe next panel was entitled, “Challenging Assumptions About Business as Usual in Legal Education: Best Practices for Educating Lawyers.” The first speaker was Professor Lee Shulman, an author of the Carnegie Report on Educating Lawyers. He began by stressing the importance of having professional students develop habits of the mind, heart and hands. Habits of the mind are the way in which professionals in a particular field approach problem solving or think about their discipline. Developing habits of the heart means students should have a sense of the ethical, moral and social obligations of their profession. Habits of the hands refer to actual practical field experience and putting the intellectual training to use in real life settings. He noted that of all the professional education areas his team studied, other professions give much more time to study in clinical (applied) settings and routine practice. Other professions also tend to make greater use of technology in teaching. He noted that medical schools have full time members of the teaching faculty whose area of research is education and the best methods of teaching in that discipline. They are much more thoughtful about how to teach and how to assess learning, something that law schools need to develop to a much greater degree.

Roy Stuckey, author of Best Practice in Legal Education was the next speaker. He hopes that his book will facilitate discussion among legal academics and lead to improvements in legal education.

He talked about his observations of some of the shortcomings of legal education:

-graduates not sufficiently competent to hangout there shingles
-the process of legal education itself as harmful to some students
-a high stakes grading system with limited feedback
-assessments practices that are “abominable”
-mandatory grading curves that are not consistent with best practices for student learning
-faculties that are faculty, not student centered
-intimidating professors
-narrow curriculum

He listed a number of suggestions to improve legal education:

-be committed to prepare students for practice
-create healthy teaching and learning environments
-articulate the educational goals of your school’s program
-choose teaching methods that most effectively achieve desired outcomes
-improve grading/assessment methods
-regularly reevaluate

Dean Suellyn Scarnecchia was the final speaker and she asked the question, “What should a dean do in light of the findings of these two important publications?” She posited that there might be one of three approaches deans might take. They might “sit tight” to see what other schools do and how things play out across legal education nationally and listen to faculty perspectives in the meantime. They might incorporate the report into the strategic planning process, which is the approach her school is using as well as a number of schools represented in the audience. The third approach is to assign the reports to a standing committee to analyze and to make recommendations to the law school community. She asked the audience to assume the role of members of their law school and to call out their likely responses to each of her three approaches to the report

That evening was the President’s Reception, honoring ABA President Karen Mathis. This was a LARGE event with LOTS of people. It was held at the convention center this year. After a long day, the thought of being in throngs of people balancing little plates of food with their drinks was not very appealing. I have frankly come to prefer nice, quiet meals with friends (ok maybe not so quiet, but not huge). However, as much of a cattle call as it can be, it’s often worth going because of the people you run into and/or meet. I arrived a bit late, after detouring to find a New York Times for later. There was still a large crowd spread over two floors of the convention center. The food was ok — a pasta type bar, dim sum, mini shrimp and some sort of southwestern looking table. The entertainment was a group dancing and performing martial arts. There were clowns on stilts walking around the crowd (don’t get me started on clowns) and from somewhere the sounds of a jazz combo. I ran into Bill (a 1955 UA Law graduate) and Mary Lou Martin who told me they were coming to the 50 year celebration on Sept. 8 at the Town Center. I also saw Dean Dennis Lynch, who visited with me about his upcoming retirement from deaning at the University of Miami School of Law. On the way out, I bumped into Thomas Jefferson University School of Law Dean Rudy Hasl and his wife, Julie, and shared with them what an amazing journey and blessing this past year has been. I ended the evening on the top floor of the hotel with a dinner of sole with crab and mushroom sauce, broccoli and buttermilk mashed potatoes (didn’t like those, they had the consistency of pogo paste–don’t ask). The view was great because the restaurant was on the 36th floor of the hotel.

Martial Artists

The next day was the business meeting of the LEL section. It lasted all of 15 minutes (I think). It was at 8:30 in the morning and had been moved to accommodate the Margaret Brent Awards later that morning. All the new officers were announced. Jim LaVaute received a gavel from Pat signaling his reign as chair of the section. Congratulations to all the new officers and council members, especially my buddy Gail Holtzman, who is a dear, and Nora Macey, vice-chair (union and employee side), who in two years will become section chair.

Judge Marsha BerzonThe Margaret Brent Awards were held later Sunday morning in the convention center. Margaret Brent was the first female lawyer in the U.S., and the award has been given to outstanding women lawyers from across the country. This year the LEL section purchased two tables because Judge Marsha Berzon, a long time union lawyer and member of our section, was one of the award recipients. Marsha, among her many distinctions, was one of the first women to represent a union and argued the Johnson Controls case in the Supreme Court, scoring a major victory for working women. To learn more about the Marsha and the other amazing award winners, read this release from the ABA.

A lovely reception and dinner with friends rounded out the evening Sunday. The reception was for Catholic University alums and was held on the top floor of the Nikko Hotel, which is where all the Section on Legal Education programs had been held. I had an opportunity to visit briefly with Dean Miles and to meet Justice Peggy Quince, the first Black female judge on the Florida Supreme Court.

Dean Veryl Miles and Justice Peggy Quince

Dinner was at Kuleto’s, an Italian restaurant located in Union Square off of Powell Street. It was a lovely chance to visit with Dick Moon, Hope Eastman, Gail and Steve Holtzman, Mike Green. I always enjoy hanging out with practitioners and learning about what is really going on in the practice. The conversation was an enjoyable one and ranged from practice to parenting to how to balance it all. The food was good, but I think that our own Chloe’s, Theo’s and Bordinos are just as good or maybe better. I had a walnut and feta salad and duck on a bed of spinach, with raspberry sorbet for dessert. After that it was time to walk back to the hotel and pack for the return trip to Fayetteville. It had been a full and informative trip highlighted by laughter and meals with friends, old and new. Time to get back, welcome the newest members of the law school community and jump into the new school year!

BTW, thanks for the feedback from you foodies out there. I made sure to include descriptions of meals in this blog entry!

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What a whirlwind! I spent one week traveling to three cities in two countries, and each stop was a great experience and a chance to see old friends.

IslandI safely arrived in Jacksonville, Florida on Sunday, but, unfortunately, I cannot say the same for my luggage. After spending a good deal of time trying to locate my belongings, I finally arrived at the Ritz Carlton on Amelia Island, Florida to attend the Southeastern Association of Law Schools Conference. The first session I attended, that evening, was a New Scholars Workshop. All of the speakers presented interesting papers, and I was especially impressed with Renée Hutchins, a professor of law at University of Maryland School of Law. Her paper on intrusiveness and the Fourth Amendment set out a new two part test based on the technology of the search and whether the information would have been obtainable otherwise. I’m certain I am not doing justice to her ideas, so if you’re interested, give her a call. I’m sure she’d be happy to send you a draft.

Later that evening, still sans luggage, I had dinner with Veryl Miles, the Dean of Catholic University School of Law, John White, the new Dean of UNLV law school, Professor Mitch Crusto from Loyola University–New Orleans and Professor Dorothy Brown from Washington and Lee University. We ate at a little tapas bar on Amelia Island called Espena. While enjoying our delicious food, we discussed the role a dean plays in a law school: the challenges, the expectations, etc. It was good to see them and to catch up with what was going on with them.

The next morning, I listened as Professor Dennis Nolan, University of South Carolina School of Law, moderated a workshop entitled New Approaches to Old Problems in Labor and Employment Law. The speakers presented many interesting and provocative ideas which stirred a lively discussion among labor colleagues. Professor Nolan was perhaps one of the most “interactive” moderators I have ever seen. During the workshop, Professor Paul Secunda, University of Mississippi School of Law, talked about the Workplace Fairness Act, and Professor Jeff Hirsch, University of Tennessee College of Law, discussed moving to one uniform cause of action for all employment discharge cases (yes, all of them). Professor Marsha McCormick, Samford University–Cumberland School of Law, suggested viewing employment discrimination claims through the lens of transitional justice and perhaps adopting a truth and reconciliation model for such claims. Professor Nancy Levit, University of Missouri–Kansas City School of Law, presented an interesting paper about the role class action suits play in reforming the workplace in terms of equality and inclusivity. In her research, Professor Levit found that in the cases where the settlement required a greater degree of managerial accountability, greater institutional changes were made.

I spent lunchtime Monday with two of my colleagues from University of Arkansas–Little Rock: Terry Beiner and Terrence Cain. Terrence recently joined the UALR faculty as a tenure-track professor, but he previously taught employment discrimination and civil liberties as an adjunct professor between 2004 and 2007.

(L-R)Neal F. Newman, Michael Green, Dean Keminshire, Paul Secunda, Elaine ShobenMonday evening I enjoyed a fabulous dinner with our own Professor Scott Dodson and his wife Ami, along with a long time labor and employment law colleague and friend Michael Green from Texas Wesleyan. It was a fun meal, and we learned of an exciting new article Professor Dodson just completed on the constitution viewed through the lens of evolutionary biology (or more accurately whether that paradigm fits in terms of constitutional analysis). It is a great piece and I’m sure he’d do a much better job of explaining it to you than I am. (apologies Scott)

On Tuesday afternoon, I moderated a discussion about employment discrimination entitled Employment Discrimination Fifteen Years after the Civil Rights Act of 1991. The panel featured four professors from across the South who analyzed some of the issues that have arisen under the act. Dean Steven Kamenshire, Georgia State University College of Law, talked about the difference burden of proof in mixed-motive and pretext Title VII cases. Professor Terry Beiner, University of Arkansas–Little Rock William H. Bowen School of Law, discussed the need to increase damages awarded in discrimination claims, especially sexual harassment cases, depending on the severity of the facts. Professor Elizabeth Pendo, St. Thomas University School of Law, looked at the difficulty of disability plaintiffs availing in claims, and Professor Michael Green, Texas Wesleyan University School of Law, focused on the challenges in using arbitration to settle employment discrimination claims.

Directly following the panel, I attended a session about law school accreditation issues. The notion is, as explained by Dean Steve Smith, that law school accreditation has two themes. The first theme is protecting the public by making sure students are well-prepared to serve in the legal profession. The second theme focuses on holding law schools to high standards and producing “value-added” students . The panel discussed whether law schools should be required to have research missions, but some felt it was not within the role of the ABA to require research, but that that goal fell within the purview of the AALS. This lead to a discussion, initiated by Dean Lawrence Dessem of Missouri Law School, on the differences between the accreditation methods of the American Association of Law Schools and the ABA. He suggested that over time, there will likely be a distinct division between the roles each organization plays in the accreditation process because over time each will tend to focus on different areas of emphasis. There was also a great deal of discussion around the proposed language on the bar passage interpretation. It was recommended that it be tabled for further study.

After a quiet dinner, I attended the Deans’ Dessert for a little while because the next morning was an early one. My shuttle would arrive the next morning at 6:45 a.m.

After the spending three days at the SEALS Conference, I headed to Iowa City, Iowa to the Midwest School for Women Workers, sponsored by the University of Iowa Labor Center. The school is designed to bring together union women to develop leadership skills, understand challenges and issues facing the labor movement and to equip women to be more active and effective leaders in their unions.

Meeting

While settling into my hotel room to get caught up and to prepare for my speech, I found out that the internet only worked in the lobby of the hotel. About half way through the afternoon, I looked out the lobby door to see a labor rally in full bloom. It turned out to be the women from the Midwest School. They were marching and picketing to express support for the passage of the Employee Free Choice Act. About 75 union members and supporters gathered for the Rally for Workplace Democracy in downtown Iowa City which received media coverage.

School for Women Voters

The next morning, I delivered a speech to about 60 women who were attending the school. The speech was entitled “We Still Can” after the famous Rosie the Riveter campaign during World War II. It focused on how women in the workforce have played a significant role in transforming society.

I was especially happy to go back to one of my alma maters. I worked as a labor educator at the Labor Center on campus while I was a law student and during my first year of business school. My experiences there played a major role in shaping my views of the workplace. It was a great chance to visit with former colleagues (including Matt Glasson who gave me my first law clerk job and Roberta Till-Retz whose commitment to and love for labor is amazing).

Alberta, CanadaThursday afternoon, I started on the last leg of my trip to Banff, Alberta, Canada for the Law School Admissions Council Board of Trustees retreat. I arrived Thursday in Banff, which is a beautiful resort town set in Alberta’s Rocky Mountains. The retreat was a chance for the board members to get to know each other and for all of us to get to know LSAC’s new CEO Dan Bernstein. We spent a lot of time discussing the future of the organization and the possibilities of internationalizing the organization (beyond Canada). We also focused on continuing to improve the LSAT and thought about what other service/products would be appropriate for LSAC to think about offering. We also spent time thinking about and looking at the structure of the organization and the relationship between the board and the staff. After our discussions were over, we engaged in a little “board bonding” and took a whitewater rafting trip. And bond we did. Our raft worked very hard to keep everyone in and to counter the splash attacks of the other rafts.

The whirlwind trip ended with a return to Fayetteville and the excitement of the new school year. This trip was a reminder of the many experiences that come with this role and the gift of terrific friends from many places. For both, I am extremely thankful.

Canada