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Author: Miriam Cherry

5

Stop me if you think you’ve heard this one before…

In preparation for my stint here at ConOp, I asked Dan S. whether there was any method for checking if the topic I was thinking about blogging about had been preempted by someone else’s blog post.

After all, in writing a formal law review article, the first item on the agenda is to do background research to see if your topic has been taken, done to death, or how you might best add to the literature that’s already out there. There’s certainly no sense in expending all the time and effort that goes into writing a full-length article only to have duplicated someone else’s work.

But with blogs, such a search is difficult. Yes, there is Google Blogsearch. But even narrowing it down somewhat, you come up with too many blogs to read. You can’t read all the law blogs on anything resembling a regular basis or check that someone three months ago didn’t write something similar. (I used to feel the same way when I would sit in front of a Bloomberg terminal and watch the stories come across the news services. It truly is a humbling encounter that makes one aware of one’s own bounded rationality).

Anyway, Dan S. also remarked that it doesn’t really matter if there are a few comments on the same thing in the blogosphere. I suppose he’s right – after all, there’s a dialogue out there, and so long as you’re adding to it, then it’s okay if you’re not the first to have made the point. If you’re giving appropriate credit if credit is due, no worries.

So, I realize this request is somewhat recursive, but if this is the millionth post on pre-emption in the blogosphere, will someone please tell me?

4

Law Firm “Internships” and the Fair Labor Standards Act

The past few weeks, I’ve had questions from One-Ls about summer internships and job opportunities. Many are working for judges, legal services agencies, or at other public interest organizations. For One-Ls especially, an unpaid internship with the government or with a non-profit can provide significant benefits. Such an internship gives the students a sense of what lawyers do, an exposure to an area of practice, and perhaps the opportunity to work on a sustained project that will give them a good writing sample. At the same time, courts and non-profits are understaffed, don’t have a lot of money to throw around, and can benefit from the additional summer help.

I understand all of this, but lately an increasing number of students have been telling me about “internships” – unpaid – with for-profit law firms servicing paying clients. From what I have heard, the student intern will perform tasks normally handled by an associate, paralegal, or secretary, all in exchange for the grand total of nothing. (Well, except to occasionally get a free lunch or commuting expenses). From what I have heard, the level of supervision varies at these internships; students sometimes say the feedback and experience is good, other times they are mostly ignored and set to the routine task of document review.

Recently the Department of Labor promulgated the following list of factors to determine whether unpaid externships comply with the Fair Labor Standards Act (FLSA), otherwise known as our minimum wage law:

1. The training is similar to what would be given in a vocational school or academic educational instruction;

2. The training is for the benefit of the trainees or students;

3. The trainees or students do not displace regular employees, but work under their close observation;

4. The employer that provides the training derives no immediate advantage from the activities of the trainees or students, and on occasion the employer’s operations may actually be impeded;

5. The trainees or students are not necessarily entitled to a job at the conclusion of the training period; and

6. The employer and the trainees or students understand that the trainees or students are not entitled to wages for the time spent in training.

Although I’m sure that the last two factors are met with a for-profit law firm unpaid “internship,” the other four could cut against a law firm that doesn’t give students a good training experience.

In my mind, the entire practice of using students to perform for-profit legal work and not paying them leaves me highly suspicious. Pay the intern below what you would an associate, paralegal, or secretary, heck, pay them minimum wage. But pay the intern something.

31

I Wanna Be A Lawyer When I Grow Up

Yesterday my friend Caitlin asked me when I knew that I wanted to be a lawyer. At this point, a life in the law is so much a part of my identity that I had to stop and think about it. I’ve become immersed in all the details that go along with practice and now being a professor, so much so that it’s easy to forget what motivated that initial journey down the path of the law.

Of course, if I look deeply at it, I have two serious reasons for choosing to study law: intellectual challenge and social justice. But if I really think about it, practicing law appealed to me before I could articulate those reasons.

I was writing my first client advice letter. I was five. The letter concerned Snuffleupagus. Yes, the shaggy brown-woolly-mammoth-elephant Snuffy from Sesame Street. At the time that I watched Sesame Street, Big Bird was trying to get his friends to believe that Snuffy existed. But when Big Bird would bring Maria, Bert, Ernie, or the other muppets to see him, Snuffy disappeared to talk to his mother, get a drink of water, etc. Then no one would believe Big Bird, and Snuffy continued to be the “imaginary friend.”

Even to my five year old self, it appeared that Snuffy’s existence could be definitively shown by an offer of proof. In that letter (which my mother helped me mail off to the public TV station) I suggested that Big Bird should start taking photographs of Snuffy or set up a precise time when the skeptical friends could come by.

I’m interested to see what motivated our readers to enter the legal profession. And it’s okay to admit that “The People’s Court” had something to do with it.

0

Blue Shoes and Happiness

BlueShoes.jpgRecently released: the seventh book in Alexander McCall Smith No. 1 Ladies’ Detective Agency series. The series follows the adventures of detective Precious Ramotswe, who runs a detective agency out of her husband’s garage. In this installment, Mma Ramotswe investigates a kitchen thief, witchcraft at a game preserve, and some instances of blackmail.

I’ve enjoyed these books for some time, and so I was happy to learn that McCall Smith is a law professor at the University of Edinburgh. (I admire lawprofs who are multi-talented). After becoming a professor, he helped establish a law school at the University of Botswana and drafted a treatise on criminal law in Botswana. He has also been a visitor at SMU law school.

Despite the author’s legal background, these books are really not about law, although occasionally it creeps in. Come to think of it, the books really aren’t strictly detective stories either. They’re about ethics, they’re about African culture, they’re about the characters who you feel you already know. More the foundations of law than the law itself.

If you’re looking for a great series to start your summer off right, these books are beautifully written, profound, and life-affirming. And how can you resist a book with the title “The Kalahari Typing School for Men”?

2

Retaliation Against Workers at Immigration Rallies

Immigration and employment are closely linked subjects. After all, the 1986 Immigration Reform and Control Act criminalized an activity that we don’t normally think of as illegal – that is, the activity of work itself (when that work is performed without proper documentation). It’s been fascinating to follow the debate and to see the strange political bedfellows involved; congress is going to continue considering potential compromises. On May 1 these issues took center stage on the “Day Without an Immigrant” protests and boycotts (some of which continued past that day). For reports, see this CNN story and recent posts at ImmigrationProf here.

According to the print Wall Street Journal, however, the May 1 immigration rallies were somewhat constrained. If all of the 11 million workers who are working without authorization walked out on their jobs, that would cause serious harm to the national economy. The article raised the idea that the “strike” was muted in part because workers were afraid that they would be fired or otherwise retaliated against if they chose to take part in protests. The New York Times had earlier reported on retaliation against workers who had attended pro-immigration rallies.

Professor Paul Secunda over at WorkplaceProf offers the following intriguing analysis of retaliation for these protests building on a labor law theory:

From a legal standpoint, one of the most overlooked aspects of the National Labor Relations Act (NLRA) is that it not only protects unionized workers, and those seeking unionization, in their ability to engage in concerted activity for mutual aid and protection in the workplace, but also protects non-unionized workers, like many of these rallying immigrant workers, in their ability to engage in the same activity.

Consequently, non-unionized workers are also protected against adverse employment action by their employers to the extent that the rallies are considered a type of concerted activity for mutual aid and protection, which is directly related to concerns in the workplace. To the extent that employers nevertheless take adverse actions based on participating in these rallies, the impacted employees may be able to seek reinstatement and backpay through filing unfair labor practice claims with the NLRB.

Paul’s analysis certainly would lead to a progressive pro-speech / pro-expression outcome. But at the same time, walking out on work for this type of protest isn’t prompted by anything that the particular employer did. Attendance is a basic job requirement, and the employees could express themselves during non-work hours. Finally, if it is undocumented workers who are involved in the protest, the decision in Hoffman Plastics means that even if the workers were able to show that their rights had been violated, they wouldn’t be able to receive the backpay.

If all we’re left with is an employment analysis, then the remedy is even more constrained, since most workers are at will. I suppose there may be some kind of Title VII protection (for national origin discrimination) if all of the retaliated-against protestors are being treated more harshly than a worker of a different ethnic group who is absent for a day.

Interestingly, in another part of his post, Paul claims that most employers probably will not retaliate for self-interested reasons:

Finally, and perhaps the best reason for employers not to take any action against employees participating in immigration rallies is because, from a practical standpoint, it does not serve their interests. After all, many of the same companies and industries that are suffering the most from absent workers because of these rallies are the same companies which have the most to gain through the continuation of the current immigration state of affairs. It would thus seem in these employers’ best interests to encourage these workers to demonstrate for more flexible immigration laws and not to punish them for doing so

.

I suppose that depends on which employers, or how employer “economic interests” is defined. If the laws are changed to allow illegal aliens to regularize their status, that means that the “threat of calling the INS” no longer will have any power over undocumented workers. And these undocumented workers may then choose to organize or push for other rights – rights that they haven’t felt comfortable asserting because of the fear of deportation. And the employers who are currently hiring undocumented workers don’t want that.

Now, if the government shifted the focus from deporting immigrants themselves, and instead cracked down on employers (who perhaps have brought additional attention to themselves by firing employees who are attending immigration rallies), I suspect that the burden of the law would fall much differently. We would see a whole different set of incentives come into play, and that might lead to meaningful immigration reform.

5

A T-Rex Named Sue

TRexSue.jpg

As Dan S. correctly pointed out here, there are three law review articles that have “Tyrannosaurus” in the title, and all three deal with various aspects of the legal battle for a particular dinosaur named “Sue.” Sue has also been the subject of a Nova documentary and at least two full-length books (one entitled Rex Appeal).

Here is the brief version of Sue’s story. In August 1990, commercial fossil hunters from the Black Hills Institute discovered Sue on a parcel of land within a Sioux reservation in South Dakota. The land was ostensibly owned by a rancher named Maurice Williams. The fossil hunters provided Williams with a check for $5,000, but Sue’s fair market value was later established at over $8,000,000. The fossil hunters, the landowner, the tribe, and the federal government went to court claiming ownership.

The Eighth Circuit eventually ruled that because the land had been held in Native American trust, and because the dinosaur was part of the “land,” Sue could not be sold without government permission, and that the federal government held Sue in trust for Williams. The fossil was eventually put up for auction, with a combination of corporate and non-profit interests joining together in their purchase. Sue now holds court at the Chicago field museum.

With that set of facts, you can take numerous angles on the case. In my article, I chose to describe how I use this case in class to teach contract defenses. In short, the Tyrannosaurus Sue article occupies the intersection of my interest in contract law, teaching theory, and terrible puns:

1) Contract law. Although the Court based its decision on principles of property law and statutory interpretation, it would have been fascinating if the court had examined the case from a contract perspective. Think of all the great contract defenses that could be raised to challenge the transaction, i.e. unconscionability, mistake, misrepresentation, duty to disclose. If you change the facts around slightly in a hypo, you can get into the discussion of defenses even more.

2) Teaching theory. I show my class the Nova Special on the discovery of the dinosaur, and spend a class exploring various theories of the case and talking about the defenses. It’s multimedia, it’s problem-based, it promotes active learning. You know, all the good stuff.

3) Terrible puns. Where to start digging on this one? The article contains numerous puns, the quality of which, er, kept degenerating. As a condition to my contract to publish the article, I insisted that footnote 23 remain:

An arm’s-length transaction with a T-Rex would be an interesting arrangement, given their tiny forelimbs.

So there you have it. Dinosaur law.

1

Glad to Be Here

Thanks, Dan S., for the warm Concurring Opinions welcome! I’m happy to be here, writing whatever I want, I mean, advancing the intellectual legal dialectic of this most scholarly blog. Enough filler for now (no offense, Dan F.), more about contracts, employment, law and popular culture (and dinosaurs) to come.