It was a pretty typical Monday after returning from the SEALS conference. The first thing I did was turn in my travel report to Jan Ingram, the law school’s Travel Manager, for fear that if I waited too long, I’d misplace the receipts—and then I’d be in a pickle. After that Marjorie LaRue-Britt and Joan Van Tol of the Law School Admissions Council called so that we could talk about the work of the Finance and Legal Affairs Committee, which I am chairing, for the next two years.  Their feedback was helpful and left me feeling a lot more prepared for the upcoming board retreat.

Turning my attentions to the upcoming panel on social media and the workplace to that I was to moderate at ABA Annual Meeting, I was started  by something I learned from Lauren Schwartzreich’s paper, The Internet is Written in Ink: Workplace Liabilities & Litigation Hurdles in the Age of Web 2.0. In her paper, Lauren cautions employers from relying on credit ratings, as credit ratings, “may be based in part on one’s social media activities.” Now, maybe that had occurred to you, but I hadn’t thought about it.  I remember from teaching about the Fair Credit Reporting Act in employment law class that there’s a reputational component to an “investigative consumer report” which is defined in the statute as:

a consumer report or portion thereof in which information on a consumer’s character, general reputation, personal characteristics, or mode of living is obtained through personal interviews with neighbors, friends, or associates of the consumer reported on or with others with whom he is acquainted or who may have knowledge concerning any such items of information. However, such information shall not include specific factual information on a consumer’s credit record obtained directly from a creditor of the consumer or from a consumer reporting agency when such information was obtained directly from a creditor of the consumer or from the consumer.

I just hadn’t put two and two together to think about how social media makes this even easier for the agency gathering the information.  According to an article by Erica Sandberg, Lauren cited in her paper, “In their quest to identify creditworthy customers, some are tapping into the information you and your friends reveal in the virtual stratosphere.” Huh!  Sandberg explains why financial institutions are interested in your social media background. “Another reason credit issuers are looking to this data is to reduce lending risk. Social graphs allow credit issuers to know if you’re connected to a community of great credit customers. Creditors can see if people in your network have accounts with them, and are free to look at how they are handling those accounts.” I’ve linked to the article, so you can read more about it if you’re curious.  I learn from my interactions with presenters at conferences, whether they are practice oriented, or more academic in nature.  The good thing is that whatever I learn I can pass on to students. 

That evening I joined my Bestie, Carol Gattis for dinner at Theo’s.  We hadn’t seen each other since the ride to Eureka, and hadn’t had a chance to really visit for a while. Theo’s is one of our favorite restaurants in Northwest Arkansas, even more so now that Mr. Polite works there.  Mr. Polite (Ryan) used to work at Lambeth Lounge on campus and is a great guy and super bar tender.  So, since we liked Theo’s, and Mr. Polite, it is a win-win.  Unfortunately he wasn’t there that evening.  It was pretty quiet, the server explained that that’s typical on a Monday, but that was fine by us.  Carol had the blackened snapper (which is very similar to the blackened redfish that used to be on the menu) and I ordered the duck comfit with squash ravioli (and brussels sprouts but those are not my favs).  We both enjoyed our meals and the opportunity to relax, laugh and catch up.  

Special birthday wishes and lots of love to my younger brother Elliott and his family.  Happy Birthday Elliott. I hope this next year is a great one for you.

Sunday the 31^st started with service at Good Shepherd.  I sat between two old friends, Janet Smith and Linda Taylor, which made me think about one of the things that is so great about church friends. Though my political views are to the left of both ladies, we’ve never let politics get in the way of our friendship.  In fact, on one particularly tough issue, Janet and I went to Village Inn for pie (well, if it’s gonna be a tough conversation there has to be a sweetener) and spent a long time listening to each other’s perspectives.  I won’t forget that evening, and the closeness we found because of it.  Linda and I have taken a similar journey together.  Having arrived at XNA at 11:30 the night before, I was a bit discombobulated when I got to church, but I got there early (a rare event, indeed) so I was able to get situated before service started.

One of the fun things about the service was that Pastor played his guitar and substituted a song for the children’s sermon.  It is one of my favorite children’s Sunday School songs.  To put things in context you need to understand that one of the things we are working to accomplish is to keep church “weird”, which in my mind is fun, unpredictable, engaging, and sometimes wacky.  So, when we sang, Rise & Shine & Give God the Glory, everyone was required to makethe gestures that go along with it.  What a fun, & surprising (weird?)way to get the congregation smiling and engaged in the service. 

Pastor Clint’s sermon was based on Isaiah 55:1-5 & Matthew 14:13-21. He noted that both texts deal with feasts, but we should be thoughtful about how we interpret them.  One way to think of these two passages is that we are being called to “radical situations.”  In the Isaiah text, the prophet asks, “Why do you spend your money for that which is not bread, and your labor for that which does not satisfy?” So Pastor asked us to think about how we spend our money on non-necessities.  How do we make our choices?  Is it the accumulation of things, or is it things that make life richer? Similarly, how do we share those resources with others? Instead of sending a hungry crowd away to buy food, the text said, “… [Y]ou give them something to eat.” We should think about what we have and how we use what we have to make a difference in the lives of others as well. Basically, the take away for me was the wise and generous stewardship of our resources.

We also heard from a guest speaker, Jon Felker, who shared with us his terrific testimony on the “She’s My Sister” Bike Tour 2011 in support of women in the Congo.  She’s My Sister is an “initiative responding to vicious acts of war that have left women broken, and children orphaned in the eastern Democratic Republic of the Congo.”  Jon rode his bike from Florida to Maine this summer, in support of this cause.  He was an impressive young man, and the compassion he had for the victims of violence in the DRC was evident and moving.

After church, I headed to Pea Ridge to get Mom for our “date.” She decided she wanted to go back to Roaring River for the fish sandwich, so that’s what we did.  While we were there, a couple walked in dressed as though they were riding, so I asked.  They ended up sitting next to us and we had a great conversation.  We exchanged cards and I’m looking forward to riding with them when they are in the area.  Sarah may even be a recruit for the Divas. Yay! 

 One weird thing happened while we were there.  An older lady who had been giving the four of us the fisheye, came over and whispered to me (she was being discreet), “Miss, I hate to tell you this, but there’s a stick on your black dress. To understand why this is strange I was sitting down, and it would have been tough for her to see my skirt.  Plus she said, “stick” not twig, or grass or something more likely.  It was as though I’d been out hiking and came in carrying the woods with me. Ok, I’m being a smart aleck, but you have to admit it’s odd.  Since I was wearing a pink top and black patterned skirt, I said, “Ok thank you.”  Mom asked, “What’d she say?” When I told her what the woman had said she really got tickled, and in between laughing pretty heartily she said, “Oh, she’s crazy, that’s too funny” and went back to laughing. (The lady and her hubby were gone at this point.) 

After saying goodbye to our new acquaintances we headed to the farmer’s market to buy treats for the folks at Mom’s place and the law school.  Mom bought a watermelon that the owner helped us pick out and I bought a box of peaches.  Afterwards, I dropped Mom off at her apartment and carried the watermelon to the kitchen.  As I was leaving she said, “I had a good day today and some really good laughs. Thank you.” Can’t ask for more that that.

Since my flight was departing late (6:25 p.m.), I decided to have a leisurely breakfast and to arrange for a tour of Savannah.  I didn’t make sense to be that close, and not see the city.  After a great breakfast of blueberry pancakes (blueberries are heavenly treats) bacon and (of course) coffee, I called the cab driver who’d driven me to the Marriott from the airport, Chantell.  “Hi, Is this Chantell?” “Yes.”  ‘This is Cyndi, the woman you drove to the Marriott on Thursday.” “Ok, hi Cyndi I recognize your voice.”  I explained that I’d like for her to pick me up early and to take me on a tour of Savannah.  The trip to the airport was business, the tour personal.  After a moment’s pause, she agreed and gave me a price which seemed reasonable.  However, Chantell was not available, so her sister Tomika would be there to pick me up at 2:00.  After I checked out of the room, I spent a little time checking email (very little, as I have a lot less now) and catching up on the news as well as drafting a few blog posts.

Tomika arrived a bit late and as we drove off the island, I could see why. The traffic was backed up in the lanes headed to Hilton Head, and she’d been caught in it.  On our side of the highway, it seemed that  every Sunday driver was poking along, sightseeing and making crazy turns across several lanes of traffic at the last minute. We put the oldies R&B station on the radio and chatted about life in Savannah while headed our way. Tomika was horrified to learn that Fayetteville doesn’t have an R&B station.  “How can you live there?”  I talked about many of the amenities of life here, but she didn’t seem convinced. Changing the subject,  I offered her the cherries I had left from the room (Michael had taken me to pick up some healthy snacks on Thursday—when we weren’t driving down the bike path) and she gnoshed on them as we made our way to Savannah.

Right before we entered Savannah we crossed a beautiful bridge, the Talmadge Memorial Bridge.  It was unexpected.  My impression of Savannah had been that it was steeped in tradition and the structures there were older, historic.  The Talmadge is modern in design and quite a sight, making for a dramatic entrance into the city. During our trip, when we weren’t singing or sharing a companionable silence, I asked about what it was like living in Savannah.  How was the job market?  What did people do?  How were race relations? Why did she like living there? Tomika was quite forthcoming and said that she thought it was a great place to live.  She’d left once, to live in Virginia and returned after a year because she found the living easier in Savannah, personally and professionally, not to mention the climate.

By that time, we’d made our way to River Street, as I’d asked to see the waterfront area.  Just as we rounded the corner we came across a group of 20 or so Black bikers (mostly guys).  Wow!  A sign–of what I wasn’t quite sure–but I interpreted it as being in the right place at the right time. Tomika seemed fascinated and remarked that she’d never seen so many Black bikers.  I was fascinated too, but for different reasons.  J “Tomika, pull over.”  She did and opened the back door of the mini-van cab, so I could conduct my conversations.  (Ok, so it’s not the coolest approach, but hey, you work with what you got.)  The group was great. “Come on, you can ride on the back of my bike.”  “I don’t have my boots or a helmet.”  “That’s ok. I won’t let anything happen to you.” There were a couple of women riders and they seemed amused at my reaction to the fellas and vice versa.  To make a long story short, Tomika and I were so distracted by the riders, that we failed to notice the fact that we were sitting on the trolley tracks.  A none too happy trolley driver was quite put out with us. One of the bikers said, “Look out!” We said, “Huh?” and turned around to see the rather imposing trolley bearing down on us. “Oh Lawd!” Tomika said, and we both cracked up as she backed the cab off the tracks and we waived goodbye to the riders. That was an eventful start to our tour.  The rest was pretty mellow after that.

The River Street area had a number of interesting looking shops and boutiques and hotels, as well as restaurants and bars. From there you could take river cruises.  Everywhere we went, it was clear that great care had been taken to preserve the historic buildings in the downtown area.  The atmosphere was charming.  Tomika explained that the Savannah College of Art & Design played a major role in the preservation. The area of the original Savannah city plan has been declared a historic landmark.

We visited a number of the squares, the oldest Black church (First African Baptist Church), the courthouse and cruised down what appeared to be the main, downtown shopping street.  Tomika showed me an area that held slaves after they arrived. From there men would come to look them over and to place bids. It was an area with large stone walls and bridges from which one could look down into a square area encompassed by the stone walls. After a brief look at a few neighborhoods, and the port, it was time to head for the airport.  My brief tour left me wanting to spend more time exploring and learning the history of Savannah.  It is already on my bucket list, and now I know that’s for good reason. 

After Tomika dropped me off at the airport I had just enough time to check in for the flight, grab a quick bite at Phillip’s Famous Seafood, and clear security before the flight left. I’d enjoyed my Savannah sojourn, and looked forward to returning.

The SEALS Labor and Employment Law panels were scheduled on Friday, July 29^th.  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.

Fueled by dinner at Catfish Hole the night before, I began my travels to the Southeastern Association of Law Schools (SEALS) on the 28^th, by boarding a 6:00 a.m. flight (Ugh!).  As is typically the case when I am traveling, there was a delay—this time in Dallas, on the leg to Savannah.  Our flight was late because there had been a “bird strike” as the plane landed in Dallas and maintenance was checking to ensure that there was no serious damage to the aircraft. Our flight was uneventful and the baggage handlers delivered the luggage to the carousel quite quickly.

It is about an hour from Savannah, Georgia to Hilton Head South, Carolina.  Showing myself to be geographically challenged, I asked the cab driver whether we were headed north or south to get there. She patiently briefed me on the fact that Florida was south of Savannah, and we were headed north.  She then rattled off in a matter of fact manner the states going north. After my geography lesson, we talked for the remainder of the ride about the drivers in Georgia and South Carolina.  Atlanta drivers and traffic were the worst in her opinion. She put on an oldies R&B station, and between talking about crazy drivers we sang along.  It was a most agreeable cab ride.

As she pulled up to the hotel, I saw LeRoy Purnell, waiting for his car to be pulled around, so we visited for a bit before I went to check in.  Dean Purnell is putting together a collection of essays for a book entitled Deaning While Black. I wanted to check with him on the due date for our essays. Once I checked in I learned my room had a fabulous view (joking). But hey, I was on Hilton Head Island for the first time, so what the heck.  I called my friend Mike Green from the lobby (he is a featured character in the blog).  We’ve been friends going on 18 years now, and have a lot in common.  We’re both from the Southside of Chicago, both labor and employment law profs, (though Mike got his start representing management interests) and he and I belong to brother/sister fraternal organizations.  Whenever we get together zaniness ensues. I’m not really sure why that’s so, but it is definitely true.

Mike had a car and he graciously offered to drive me to lunch, so we sought advice for a good place to go.  The concierge thought our interaction was pretty funny and advised Mike that the “boss is always right.” Now, here I need to inform you, dear readers that many times in the past when Mike and I set out with a map and a plan, things went comically awry.  This time we’d been told the restaurant we were seeking, Santa Fe, was about a 4 minute ride from the hotel.  “Make a U-turn once you pass Longhorn and it’s right there.”  We did that, twice.  We saw the Lutheran church, Longhorn, a neighborhood and an insurance office.  The third time around, we decided to pull into a gas station for directions.  Unfortunately, we pulled off a little too soon and ended up—true story—driving down the bike lane.  We asked a local guy outside the station for directions and he said cryptically, “You can’t really see it from the street.  There are little bronze people standing out front. But, it’s not far.” Mike had a look on his face like, “Yeah, uh huh, ok.”  We did find it, and the little bronze people, but by the time we did it was closed (of course).

We’d seen a deli while on our scenic journey, so we went there.  Mike had a healthy chicken salad with all kinds of veggies and I ordered a Monte Cristo sandwich with onion rings.  Yeah, I know, that’s a weird combination, but it sounded good at the time. The food was ok, but when we went to leave, the guy on the cash register had a hard time ringing up our meals separately.  It took a really long time and he had to do it twice.  He also called me back from our escape out the door to question my tip. He actually had to pull out a calculator to check the (simple, after all I am a lawyer) math. 

 Once we extricated ourselves we headed to the hotel to sit/lay by the pool and catch up.  That was glorious. We managed to find two deck chairs in the shade, and enjoyed people watching as well as the joy of a low maintenance, good company. 

After relaxing for quite a while, we decided to try a restaurant recommended to Mike by a LEXIS rep, whose cousin owns a very well-known restaurant on the island, Roastfish & Cornbread, which specializes in low country cooking.  Mike had tried to eat there the night before and they’d finished not serving by 9:00 p.m., so we needed to get going to be seated.  Roastfish & Cornbread doesn’t take reservations, so there’s typically a wait.

Once again, we headed out with a map and directions, though this time we had better luck. Just as we almost drove past it, Mike made a sharp, last minute turn into the restaurant parking lot.  The place was packed! Many tables of diners were seated outside eating in a lively atmosphere. Inside there was a long line, and wait. We waited more than an hour to be seated. We were determined to eat there based on the recommendation Mike received and the buzz about Roastfish & Cornbread from colleagues.

Lemme tell you, it was worth the wait. The food was fantastic.  Everything was well seasoned, the entrees were interesting, and our server, funny and warm.  Mike and I both ordered crab stuffed flounder, with mango chutney, collard greens, mac & cheese and sweet potato corn bread. Yumm.  Highly recommended! Another of our colleagues, Ray Diamond who we ran into and ended up sitting with ordered the Seafood Trio and thought it was fantastic too. After eating admittedly entirely too much, too late at night, we headed back to the hotel where we had a nightcap, with Wendy Greene of Samford Law School, who’s also an employment law prof and who’s a fun person and thoughtful scholar.  Before too long, it was time to say good night as my panel was the next morning, so I headed to my room with a view.

Tuesday was busy, believe it or not.  I hadn’t finished my presentation for the Washington County Democratic Womens’ meeting, even with the jump start from my Research Assistant, Adam Kent. I’d been asked to speak about the Wal-mart v. Dukes case, which many of you know was a procedural case, at least in terms of the issues, but it has important implications for employment law class actions.  Not being the Civ. Pro. Expert, I needed to take time to get up to speed on the ins and outs of the case.  In addition to that, I had to get ready for the Southeast Association of Law Schools (SEALS) Conference panel on which I was to talk about the employment related immigration issues bubbling up from the states. That talk would be on Friday at 10:00, which was quickly approaching.

I added one new blog post (which was a lot more fun than prepping for my talk) and turned my attention to Dukes.  The case stemmed from a class action suit brought by female Wal-Mart employees and former employees.  The women alleged that, “a strong and uniform ‘corporate culture’ permits bias against women to infect, perhaps subconsciously, the discretionary decision-making of each one of Wal-Mart’s thousands of managers–thereby making every woman at the company the victim of one common discriminatory practice.”  The plaintiffs sought injunctive and declaratory relief, punitive damages, and back pay.

The court looked at “whether the certification of the plaintiff class was consistent with Federal Rules of Civil Procedure 23(a) and (b)(2).”  Specifically, the court addressed two issues:  The first was ”commonality–the rule requiring a plaintiff to show that there are questions of law or fact common to the class,” as required by Rule 23(a)(2).  The court ruled the class was not able to meet the “common question” requirement. The second issue was whether the plaintiffs’ claims for back pay were properly certified under Federal Rule of Civil Procedure 23(b)(2).  The court ruled they were not, “where (as here) the monetary relief [was] not incidental to the injunctive or declaratory relief.”

Basically, the challenge for the plaintiffs was the size of the class.  One way of approaching the commonality issue was to offer proof that the discretion left to supervisors resulted in women being treated less favorably, and that this was common to the class (women employees and former employees). Another way of looking at it is to focus on the number of individual decision-makers and types and locations of stores, and decide that those differences in circumstances meant that the class could not arise from a “common question.”  The court decided the latter.  All you Civ Pro jocks out there, feel free to correct or amend my summary.  I am attempting here to make the case accessible to all readers.

After a morning of thinking about how best to structure the talk that evening, I decided that rather than sit in my office, I would get out for lunch (a bit of work avoidance).  Fortunately Susan Schell was a willing accomplice. (That’s not really fair, she didn’t know I was procrastinating.) We went to Hunan Manor for the luncheon buffet and had a chance to catch up.  She made me laugh with stories about her dog Coop refusing to walk in the heat.  When she’d take him out, he’d just lie down and roll over on his back, refusing to walk. After lunch it was time to face the music again, so I enlisted Professor Sheppard in my work avoidance scheme and we went over to see the newly renovated Davis Hall.  As many of you might recall, Davis Hall was home to our clinics, law reviews and the National Agricultural Law Center for many years.  At the time the digs weren’t too fancy, but based on how long the redo had taken, we suspected the University Relations folks were living in fancy digs (comparatively speaking, of course).

So, being the curious, uninhibited people we are, we explained our mission to the receptionist who smiled politely as we poked around. The building is LEED certified and has been beautifully rehabbed.  We stopped on the second floor (of three) to interrupt Steve Voorhies who was doing what I should have been doing—working.  He gave us a tour, and my favorite place in the entire building is the Bat Cave which is actually Russell Cothren’s photo studio in the basement.  There’s also a sound room down there too, but it didn’t have the bat cave logo. (You’ll just have to see for yourself).

After stalling a while (probably too long) I returned to finish my remarks for the talk that evening and work on the presentation for Friday.  Before too long, it was time to go. I met my host Roberta Billingsley, and she offered me an opportunity to eat, but I was still full from lunch with Susan. The group was gracious and there were a number of folks I knew there, including Tim Snively (President of the Washington County Bar Association—no pressure), Cristi Beaumont, Amy Driver , Michael Driver, Amy Estes and Lindsley Smith.  It was a great discussion and felt being back in the classroom with all the give and take.  All in all, though I had a hard time getting ready, it was a really engaged group and an enjoyable evening.  I still needed to get the SEALS talk done and that was tops on the agenda for Wednesday.

Sunday morning early, 6:45 to be exact, I met with Julie Tolleson, Beth Woodcock, and Carol & Jim Gattis for a breakfast ride to Eureka Springs, Arkansas.  Julie, Beth, Carol and I are all members of the Chrome Divas of the Ozarks.  We met at the gas station on the corner of Hwys 45 & 265 to gas up before taking off.  The morning was cool (a relief given recent temperatures) and the sunrise was beautiful.  Julie road Lead and I was the Tailgunner.  Our route was out Hwy 45 (east) to Hwy 412 (east) to Hwy 23 (east) and up to Hwy 23 (north) to Eureka.  There was very little traffic and Julie set a nice and easy, early morning, relaxing pace.  We encountered one car, eager to pass, but other than that we had the roads pretty much to ourselves—except for the dogs.  Where the heck did all those dogs come from?  They certainly were up early.  Sheesh!  Fortunately, even though a couple of them looked like they were going to make a run at us, none of them did.

Our ride was peaceful and afforded the time for a real appreciation of the beauty of the place in which we live.  I was reminded of the hymn, For the Beauty of the Earth, the first two verses of which are:

For the beauty of the earth,
For the glory of the skies,
For the love which from our birth
Over and around us lies:

Refrain:
Lord of all, to Thee we raise
This our hymn of grateful praise.

For the wonder of each hour
Of the day and of the night,
Hill and vale, and tree and flow’r,
Sun and moon, and stars of light: (Refrain)

I could hear it in my head at as we rode.

As we were heading north on Hwy 23 we spotted two small deer on the opposite side of the road.  They waited until we passed to continue their journey, thank goodness. Associate Dean Jim Miller has been warning me about the increased in deer-bike encounters.  I’ve promised him to be careful and I thought of him as we rolled past them. We arrived in Eureka Springs before too long and pulled into the Best Western Hotel which had received good web reviews for its breakfast buffet.  There were a few other bikes there and as we were seated the room began to fill up. While we waited for our breakfast we shared riding stories with each other about where we were from, the events of the day, and enjoyed each other’s company.

Now I know this will come as a shock, but when my breakfast arrived at the table, it was huge.  I’d ordered a waffle, sausage and one egg.  If I did get a single egg, it was from an ostrich.  The waitress who was pretty quick said, “I said he was a good cook, I didn’t say he could count.”  Once everyone had eaten and was ready to roll we pulled rolled out (to an audience of incredulous guys—ha!).  On the way back we headed down Hwy 62.  Now, I have to say that of the two routes, I prefer 23, because it’s an easier ride.  62 is pretty windy with some tight curves.  To me it’s like “Pigtrail light.”  For those who are unfamiliar with the Pigtrail it is Hwy 23 from Hwy 16 to Turner Bend.  It’s been described as “Hair raising hairpin turns, switchbacks, curves, curves, hills, curves and more curves! Not for the faint of heart” on The Best Guides to Motorcycle Roads & Rides.  I think you get the drift.

Everyone took their time in the curves which meant we had to pull over a couple of times to let the cars go by, but it was fine.  I guess the thing is, on 23, I can actually enjoy the scenery, but on 62 I’m much more focused on my ride.  We made a stop just outside of Rogers, at a place that looked like a combination, convenience store, grain mill and gas station called Anderson’s.  Truthfully, I’m not sure what bussiness it is. It dows have gas pumps with super, though.  One thing was for sure, from the reports of those who went inside, the woman behind the counter was not too happy to see our group. 

We took 62 to 71B and caught seemingly every darn traffic light.  Because it was now pretty hot outside that was not much fun.  Eventually we got our timing right, and rolled to Lowell where we took the shortcut to Hwy 265.  It’s good to get out of all the traffic on 71B, and the shortcut rolls past fields.  The speed limit is low, but there’s very little traffic and it’s a nicer ride than looking at all the businesses on 71B.  Once we got into Fayetteville, Julie and Beth continued on 265, and I turned off to go to church.  I usually don’t go to church in motorcycle gear, but it was too close to the time for service to change and drive back.  

Me, Carol, Jim, Beth & Julie

You know how sometimes you do the right thing despite yourself? , I’d been debating whether or not to go.  After all, I was pretty hot and sweaty (and I wasn’t real comfortable showing up in a Harley tank top & jeans).  But once I was there I knew it was important to be there.  The texts were two of my favorites.  The Epistle lesson was based on Romans 8, and verses 31-39 are my comfort verses.  The Gospel was on the parable of the mustard seed, another favorite.  In fact, my Aunt Ethel once gave me a pin with a mustard seed in it. It is a quiet reminder of how such a small seed can grow a big bush.  One of her many admonitions to me was to have “faith like a mustard seed.”  So, when I saw the lessons for the day, I knew I was supposed to be there. 

Pastor Clint scrapped his planned sermon and talked about the victims of the Oslo incidents.  He encouraged us to be thoughtful about what happened because the man who committed these horrendous acts identified himself as a conservative Christian. Pastor reminded us that we are public representative for the Christian faith so we need to talk about what happened.  What can we do? 1) Tone down the rhetoric.  Even if you don’t agree with another’s political perspective dial it back in terms of the harsh, bombastic, combative language. 2) Don’t lump all conservatives together.  Not all folks with conservative views are extremists. 3) Turn to Romans for comfort in the difficult times, because it reminds us that nothing can separate us from the love of God, even in the midst of the chaos. There was more to it, but that is the essence of it for me, and I’m glad I was there to receive that word.

Saturday felt like it was going to be a good day and sure enough, it was.  It started with a trip to Nails First for a pedicure and manicure (fill actually, but same diff).  Anyway, I like Nails First because it is a small family owned shop and Kevin & Cindy, the owners, are nice folks with a great sense of humor who really do a great job.  Kim works there too, and she’s a sweetie. Kevin gives most of the pedicures and I knew he was going to fuss when he saw me.  He can always tell when I’ve been riding.  “Oh, you’ve been on your motorcycle.” The boots wreak havoc on his handiwork.  But enough of that.  As usual, he gave me a thorough, relaxing pedicure, for which I was most grateful. In the middle, of being pampered, one cool lady, Cyd King came in for a pedicure as well.  She was going on vacation and was getting her tootsies ready for a tropical vacay.  It was great to see her and we decided the next time to come together so we could sit side-by-side and catch up.  After Kevin had rendered my feet human again, Cindy got my hands (nails actually) together.  It was a great way to start the morning and I left feeling renewed.  Yes, a pedicure can do that for you.  If you don’t believe me try it!

The next stop was Penguin Ed’s for a bite to eat.  I mentioned in an earlier post that Ed’s serves breakfast, but I neglected to mention the size of the portions (or maybe that’s just the dishes I order).  Breakfast was the Mexican Surprise and I think the surprise part was how huge it was.  It was a tasty treat, but way too much.  What was it?  Let’s see, it was potatoes, cheese, chorizo, tomatoes, jalapenos and onions, I think, and your choice of a pancake, toast or (heaven forbid) biscuits and gravy.  The same fun waitress was there and I found out her name is Adrienne.  She remembered me and teased about the time the four of us (Terry, Paul, Lorena & I) came in before a ride.  We visited a bit, and I told her I had to give up on the breakfast and she agreed it really is two meals.  While I was waiting to pay the tab, I called Ray Niblock to see what he was up to.

Ray recently bought a new bike (according to my Facebook sources) and was eager to get out for a ride.  Although the day was going to be another hot one, I figured we could ride a short route, just to get out and spend time together and to break in his new bike.  Fortunately, I caught him at home and he was free, so we agreed to meet up and ride the Huntsville loop– Hwy 45 (east) to Hwy 295 (southeast) to Hwy 74(east) to Hwy 23 (south) to Hwy 16 (west). While I was waiting for Ray, guess who happened to come along?  A fellow Chrome Diva, Trish Davis-Labit. “What the heck are you doing out here? Are you riding in this heat?  I hope you’re not alone.” So, I explained that though I looked like a dork sitting on the side of the road, I was waiting for Ray. We talked about planning a late afternoon ride the next day and she took off, after teasing me a bit. 

The loop is a nice ride, with some tight curves for practice (especially on 295), with beautiful scenery and low traffic.  We stopped in Goshen for gas at a station frequented by bikers.  The day was a hot one, but the cloud cover provided a bit of relief.  Just about the time we got to Huntsville though, the sky opened up and it poured down rain.  It was my first time riding in the rain. I remembered what Ed Upchurch  & Paul Syrock said in motorcycle safety class about riding when it just starts to rain. You have to take care because among other challenges, the road is slippery as the oil rises to the surface. 

Ray was a great lead and slowed our speed, and took it nice and easy during the downpour.  We pulled over to the right to let an impatient drivers pass.  By the time we got to the Huntsville square, it had stopped raining, the sun was out, and believe or not, our wet clothes felt good.  They had a cooling effect.  Coincidentally, NPR recent aired a story on the cooling effect of the  evaporation of moisture on the skin. So that explains it! We took in a little hydration and asked a lady walking by to snap a shot of us together, on our bikes, before taking off again.

Just as we got out of Huntsville, it began to pour again. But just as before, a few miles up the road, the sun came out and we were glad for the cooling effect of the rain.  We stopped at the intersection of 16 & 23 for a picture (and water) break, before heading back towards Fayetteville.  One more time we went through the rain and shine cycle, but by now I was getting more comfortable navigating in the rain. We saw a pretty bad accident, on Hwy 16.  I hope everyone was ok.  We didn’t see an ambulance though so that’s a good sign.  Once we got into Fayetteville, Ray peeled off and we went our separate ways home.  Weekends were made for good times with good friends, and I’m thankful for such days.

 After checking and responding to emails, it was time to get rolling to visit Mom for her birthday.  Lately Mom’s had a taste for strawberry, so her cake was strawberry with strawberry filling.  Rick’s bakery makes the best cakes, and Mom’s was really beautiful. I didn’t get to taste it, but that’s another story.  I’m sure it was yummy, their cakes always are.  With Mom’s cake in hand I headed to Pea Ridge to wish her a happy birthday and take her to lunch.  Little did I know that she had other plans.  When I got there, she was out already, Diva that she is, getting her nails done.  So I waited.

Mom arrived after a little bit and we headed to lunch.  She had a taste for fish, and a strawberry shake.  The former was easy the latter a bit more challenging.  We finally settled on Applebee’s in Rogers which had both.  It turns out that the waiter, John, was someone I known since I first moved to Arkansas.  It was great to see him.  We hadn’t seen each other in years, and spent some time catching up.  Mom ordered a shrimp dinner and John really pampered her, especially because it was her special day.

I had a chicken stir-fry dish with lots of veggies (my system was in shock).  After Mom gave up on the meal, and John boxed the leftovers, he brought her a strawberry cheesecake shooter. (That’s what they call it.  It’s a mini-cheesecake in a small glass).

We took the scenic route home, and enjoyed each other’s company as Mom marveled at the temperature.  It was another hot one, is a series of record setting hot days and as Mom put it, “I’m glad we’re not in the Union Maid.”  The Union Maid (pun intended) was my 1994 Ford Taurus that we rode in for a couple of years without air.  I had to agree that our current circumstance were much better.  After I got Mom situated in her apartment, I reminded her that she had a cake waiting for her. But, she forgot.  She was so full from lunch, that she didn’t go to dinner.  When I called to ask how she liked the cake, she said, “I forgot about it.  I’m going to see where my cake is.”

The next day I checked and she said, “Oh yes we had it for lunch.  It was pretty, too pretty to eat—almost.”  Happy Birthday, Mom.

During the July 17^th worship service, Pastor Schnekloth preached on the Gospel of Matthew, Chapter 13:24-30, 36-43. The text is a familiar parable about a sower of seed.  Pastor analogized those of us in the pews to the sower, and called on us to be assertive and to figure out our gifts and offer them in service.  He quoted a song by Mumford & Sons, entitled Awake My Soul, and “Where you invest your love, there you invest your life.” He asked us to make a personal assessment, and to think about the people and things we love.  How you spend your time shows what you value/love. We were asked to open our hearts and listen (for direction on how to spend our lives in service).  I tell you all this because sometimes when you least expect it, you get a message meant for you and you know it. 

That was the case for me that Sunday, and I didn’t have to “listen” very long.  In fact, the Thursday before, one of my friends who is also a Lutheran and lawyer, Peter Kumpe, called asking me to serve on a Synod taskforce, with the Bishop and others.  I should explain here that the Synod is a governance body of the ELCA church.  Our Synod is the Arkansas/Oklahoma Synod. When Peter called, I gave him several (I thought) good reasons why I couldn’t serve on this taskforce.  But on Sunday, Pastor’s sermon hit me right between the eyes.  My only consolation was that I hadn’t turned Peter down flat out, but had agreed to attend the meeting and see what’s what (and in my mind–then excuse myself).

And so it came to pass that Monday morning, I attended a meeting at the Synod headquarters and by the end of the meeting; I was indeed a member of our Synod’s strategic planning task force.  I met our new bishop Girlinghouse, who’s  spirit-lead, smart, warm, thoughtful, funny and a great listener.  Besides all that he rides too, a Suzuki. The meeting was a good, one, the work of the task force important and interesting.

While I was out, I received a call from Elaine Richter Bryant, a member and former chair of the Lutheran Immigration and Refugee Service  (LIRS)Board.  I served on the board for four years, but in the second year of my deanship, it became apparent to me that I wasn’t fulfilling my obligations to the organization because of the unavoidable scheduling conflicts. As a result, I resigned from the board.  That was a tough one because I believe in the work of LIRS and I was learning so much about the immigration law & policy, as well as how faith-based organizations welcome and help resettle immigrants.

 I’d never thought about the difference between a refugee and asylum seeker, but through my service on the board, I learned the distinction and the difference it made in their status as far as the law is concerned.  More than that, I heard the stories of the lives of people LIRS touched.  We visited detention centers where the legal aid services provided were sponsored by LIRS, and advocated for alternatives to prison-like detention of families.  I met unaccompanied immigrant minors separated from their parents who were cared for my agencies funded by LIRS, and I met families who fled abysmal conditions to find peace and establish stable lives with the assistance of LIRS’ refugee resettlement services.  I say all this to say that when Elaine asked whether I was interested in being considered for board service again, it was not easy to turn her down.  But, I felt as though I should be still, and wait a bit to see what else I might be called to do.  She and I talked about that, and we left to door open for a return to the board in the future.

The next thing that happened was that I noticed a call in the bulletin for volunteers to be trained to take communion to our shut-ins, and others in the community in institutional settings who may not regularly receive it, but desire to do so.  So again, with the tug of the Spirit, I found myself at Good Shepherd Tuesday evening for the training.  “Where you invest your love…”

Wednesday’s events were not as profound, but I felt a tug of the Spirit with a bit of a pun intended.  Mariachi San Pablo was coming to town and the draw of attending a Lutheran mariachi band concert was unavoidable.  Who knew?  A Lutheran Mariachi band?  The group has been together for more than 10 years and plays all around the country.  I’ll tell you what; they gave life to the expression, “make a joyful noise.”  It was a great time.  There was a good crowd there with lots of children and the band put on a spirited (pun intended) concert despite the heat.  Though I wouldn’t ever have dreamed it up, it was truly a wonderful way to close out a summer evening. I guess the message to me, now becoming loud and clear, is for me in this year of transition, to get out of the way, open my heart and listen…