The SEALS Labor and Employment Law panels were scheduled on Friday, July 29th.  SEALS, as you may recall from an earlier post, is the Southeastern Association of Law Schools.  This year the annual conference was held in Hilton Head, South Carolina.  I always look forward to this conference, for a number of reasons. First, there is always a very strong labor and employment law component to the conference, and as a result a number of my longstanding friends and colleagues attend.  It’s great to see them and engage in informed spirited discussions in the sessions that are challenging, but non-threatening.  Sometimes we’ll have a social event, such as dinner or drinks together.  The labor and employment law profs are a pretty close-knit group.

 Second, over the years I’ve attending a number of very impressive “New Scholar” presentations.  Most of the papers are on topics about which I know very little, but they are typically fascinating and thoughtful.  Usually, a number of senior faculty members attend the New Scholar talks to support and provide guidance to the presenters. Though I didn’t attend the entire meeting this year, in the past I’ve enjoyed attending the presentations of my newer colleagues, learning about their research, and hearing from others in the presenters’ fields about the contribution made by the new faculty members’ scholarship. I also appreciate the opportunity to meet the newest members of the academy, and to make myself available to them as a colleague who’s not a member of their home institution.

The third thing that makes SEALS a great conference to attend is the fact that there is usually a “Legal Education” program track.  What makes these sessions particularly valuable is their relatively small size compared to, for example the Association of American Law Schools meetings.  Because of this, the conversations are often more candid. Bucky Askew, The Consultant on Legal Education and a fair number of law deans attend the legal education session, and it’s always good to see them and to catch up.  Often, I can find out a lot about what’s happening in the academy by listening to the conversations in the room. (It doesn’t hurt either, that SEALS is held in desirable locations.)

Second, over the years I’ve attending a number of very impressive “New Scholar” presentations.  Most of the papers are on topics about which I know very little, but they are typically fascinating and thoughtful.  Usually, a number of senior faculty members attend the New Scholar talks to support and provide guidance to the presenters. Though I didn’t attend the entire meeting this year, in the past I’ve enjoyed attending the presentations of my newer colleagues, learning about their research, and hearing from others in the presenters’ fields about the contribution made by the new faculty members’ scholarship. I also appreciate the opportunity to meet the newest members of the academy, and to make myself available to them as a colleague who’s not a member of their home institution.

The third thing that makes SEALS a great conference to attend is the fact that there is usually a “Legal Education” program track.  What makes these sessions particularly valuable is their relatively small size compared to, for example the Association of American Law Schools meetings.  Because of this, the conversations are often more candid. Bucky Askew, The Consultant on Legal Education and a fair number of law deans attend the legal education session, and it’s always good to see them and to catch up.  Often, I can find out a lot about what’s happening in the academy by listening to the conversations in the room. (It doesn’t hurt either, that SEALS is held in desirable locations.)

My panel was scheduled for mid-morning, and was the first of the labor and employment law sessions. I’ve set out the description and a bit of detail below.

Workshop on Labor and Employment Law

The State of Labor and Employment Law in Light of Recent Supreme Court Decisions

This panel will commence the Labor and Employment Workshop and shall focus on providing an update of recently decided cases by the Supreme Court in its 2010 term that involve labor and employment law matters (e.g., Title VII third-party retaliation,  USERRA cat’s paw proof, FLSA’s retaliation, arbitration preemption of employment unconscionability, and preemption of state employment immigration laws).  Specifically our panel discussed the following Supreme Court cases:

 Chamber of Commerce of the United States of America v. Whiting, 131 S.Ct. 1968 (The provision of the Arizona law allowing suspensions and revocation of business licenses fell within Immigration Reform and Conrol Acts’s (IRCA) savings clause; provision of Arizona law allowing suspension and revocation of business licenses was not impliedly preempted for conflicting with federal law; and Arizona law’s requirements that every employer verify the employment eligibility of hired employees through a specific Internet-based system did not conflict with federal law.)

 Wal Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, (Certification of the plaintiff class was not proper under Fed. Rule Civ. Pro 23(a)(2)  as the plaintiffs were not able to meet the  ”commonality test–the rule requiring a plaintiff to show that there are questions of law or fact common to the class and that back pay damages were not appropriate under Federal Rule of Civil Procedure 23(b)(2) where (as here) the monetary relief [was] not incidental to the injunctive or declaratory relief.))

  Staub v. Proctor Hospital, 131 S.Ct. 1186, (if a supervisor performs an act motivated by bias against the military and the supervisor intends to cause an adverse employment action, that act is the proximate cause of the ultimate employment action, then the employer can be held liable under a federal statute that prohibits employment discrimination against members of the armed services)

 AT&T Mobility v. Concepcion, 131 S.Ct 1740 (holding that California state contract law, which deems class-action waivers in arbitration agreements unenforceable when certain criteria are met, is preempted by the Federal Arbitration Act because it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress).

 Professor Marcia McCormick, St. Louis University School of Law, shared what she saw as themes tying term’s decisions together. The other panelists were:

Moderator: Professor Jeffrey Hirsch, University of Tennessee College of Law.

Speakers: Professor Theresa M. Beiner, University of Arkansas at Little Rock William H. Bowen School of Law; Professor Henry Chambers, Jr., University of Richmond School of Law; Professor Cynthia Nance, University of Arkansas School of Law; Professor Suzette Malveaux, Columbus School of Law, Catholic University

There were two additional labor and employment law sessions that followed later in the day.

Discussion Group : Should Employment Claims Continue to be Arbitrated?

This panel focused on the hotly debated topic in the employment law field of whether an employer should be able to waive an employee’s right to go to court on a statutory claim, and if so, under what circumstances.  Panelists will addressed issues raised by recent Supreme Court decisions including:

 Stolt Nielsen S.A. v. AnimalFeeds, 130 S.Ct. 1758 (holding parties may sometimes settle disputes through arbitration, rather than litigation.  When the dispute involves numerous similarly-situated individuals, a few individuals may conduct the arbitration on behalf of the larger groups)

 Rent-A-Center v. Jackson, 130 S.Ct. 2772  (if after parties agree to arbitrate a dispute rather than take it to court, and one side challenges the arbitration provision itself, then a court must decide the challenge.  However, if the enforceability of the agreement as a whole is challenged, the challenge must be decided by an arbitrator)

 Granite Rock v. Teamsters, 130 S.Ct. 2847 (holding that the federal court, and not an arbitrator, may decide when parties enter into a collective bargaining agreement)

 14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (a provision in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate claims arising under the Age Discrimination in Employment Act of 1967 (ADEA), is enforceable.)

This panel also addressed topics generated by the pending Arbitration Fairness Act.

Workshop on Labor & Employment Law

Twombly & Iqbal in the Workplace

The Supreme Court significantly altered the federal pleading standards in its Twombly decision by requiring plaintiffs to allege a plausible claim.  In Iqbal, the Court more recently made clear that this plausibility standard would apply to all civil cases.  Employment discrimination plaintiffs – and civil rights litigants more generally – are thus left wondering what they must now allege to state a sufficient claim.  Is Swierkiewicz, the Court’s pre-Twombly decision on Title VII pleading standards, still good law?  What must be alleged in a typical employment discrimination or civil rights case, particularly when pleading discriminatory intent?  How have the standards changed over time?

Moderator: Professor Erin Ryan, Marquette University Law School.

Speakers: Professor Benjamin Cooper, The University of Mississippi School of Law; Professor Suzette Malveaux, The Catholic University of America Columbus School of  Law; Professor Joseph Seiner, University of South Carolina School of Law; Professor Suja A. Thomas, University of Illinois College of Law.

As you can see, that was quite a line-up!  To make things even better, Professor William Gould, former Chair, NLRB and distinguished scholar of labor and employment law and industrial relations, was in attendance.  Professor Gould is a terrific guy who’s been quite influential in shaping the law. I met him when I was a graduate student in Industrial Relations, and he has been a gracious, encouraging mentor.

The afternoon programming created a number of conflicts however because I wanted to attend a Civil Procedure Discussion Group (minimum contacts and all that) in which my junior colleague Dustin Buehler participated, and try to get to the arbitration session.  I ended up spending a little time in both, but I saw my friend, Dean Melissa Essary in the Civ. Pro. Discussion Group and we decided to step out to catch up, and then to attend the session on legal education together.  I’ll very much miss seeing Melissa at the Deans’ meetings and was happy to have an opportunity to spend time with her.I’ve set out the description of the legal ed session below.

 

Workshop on the Future of Legal Education

Should the ABA Withdraw Should the ABA its Review of Tenure and Faculty Governance Issues?

The American Bar Association is considering removing language from its accreditation standards that some fear might will erode tenure protections and weaken job security law faculty. Specifically, the ABA is considering removing language from its guidelines that has been interpreted in the past to require law schools to provide tenure protection, as interpretation the ABA denies. Further, the ABA is considering removing specific language requiring law schools with clinical and legal writing professors to offer specific forms of job security short of tenure. The reaction of the legal academy has been swift, furious, and virtually unanimous against the proposal. This panel will explore this all aspects of this controversy.

Moderator: Dean Bruce Elman, University of Windsor Faculty of Law.

Speakers: Mr. Bucky Askew, ABA Consultant on Legal Education, American Bar Association; Professor Nancy Zisk, Charleston Law School; Professor Lucy McGough, Louisiana State University Law Center; Professor Philip Pucillo, Michigan State University College of Law.

It wasn’t as animated as I thought it might be, in part because we ran out of time, but I suspect this is a topic that will receive a lot more attention.  The short version is that right now there’s no consensus on the American Bar Association, Section on Legal Education and Admission to the Bar, Standards Review Committee, which is the body tasked with looking at this issue.  Stay tuned. I want you all to keep in mind that we were all in these sessions, ignoring the call of the sun and beach.  Not bad huh?  Believe it or not, there were a number of folks participating. Kudos to all, to borrow from my colleague Professor Carlton Bailey.

After a full day of lots of learning, I had a quiet dinner in the hotel and enjoyed (of all things) a novel before calling it a night.

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