Category: Culture

19

Harsh Reality: You’re Fired!

So we’re down to the final two of in the latest iteration of Donald Trump’s “The Apprentice.” Ironically, I believe the show has a great deal to teach about the law of the workplace. The show highlights the at-will employment rule, and emphasizes common misunderstandings about the extent of workers’ job security.

Donald Trump’s cavalier method of dismissing his would-be underlings at the end of the show is distressing and troubling. In real life, being fired is a traumatic event. The loss of a job almost inevitably results in financial instability and often a diminishment of one’s professional and personal identities. To see a firing enacted in such a harsh and casual way should be emotionally difficult to watch. Yet the boardroom discussions and Trump’s catch phrase apparently are among the most popular aspects of the show.

When I’ve asked people – especially my students – why the firing on “The Apprentice” appealed to them, a few themes emerged. Some said that they empathized with Trump, because he was dismissing those who had performed poorly. Others, in a display of schadenfreude, admitted that they were happy to see others dismissed, just as long as it wasn’t them in that situation.

As Professor Pauline Kim (Wash U) has empirically documented, many non-unionized workers (and, presumably, many ‘Apprentice’ watchers) do not fully realize the extent of their own job insecurity. Often, people believe that if they show up at the office and do their jobs, absent any obvious difficulties with management or economic downturns, their employment will last. They believe what they think the boss has promised them: continued employment for hard work. But that is not the law.

Indeed, while it may be good management practice to document reasons for firing someone, the law does not require it. Under the at-will employment rule — the law in all jurisdictions but Montana — an employer may fire an employee for a good reason, a bad reason, or no reason at all. Although federal and state anti-discrimination statutes, whistle-blower laws, and other legal provisions put restraints on an employer’s ability to use a bad reason to fire an employee, the underlying at-will regime remains substantially unchanged. The reality of the worker’s bargain looks a lot more like Trump’s deal.

Altogether, reality TV’s portrayal of employment presents a realistically bleak picture for workers. You can work hard, but you still might get fired without notice.

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12

Senate Vote Suggests Fear Of Gay Love Trumps States Rights

So a Senate subcommittee voted 10-8 to send a bill to the floor banning states from recognizing same sex marriage. Arlen Spector voted for the measure, though he says he opposes it, and perhaps other in the majority did so as well. But this suggests, at minimum, a new level of confidence among conservatives. No longer need they oppose rulings like Roe on states rights grounds. The truth, it appears, is that they don’t care about those rights very much at all. At least those rights pale in the face of gay marriage. I wonder if those many Federalists who take states rights seriously will speak out. I hope so. Perhaps we’re just seeing solidification of a realignment. Democrats increasingly support states rights, and fear the courts. Republicans increasingly love the courts (or at least don’t fear them) and now can stake out fresh territory regulating the typically state-organized institution of marriage.

And a new generation of thinkers will have to decide if abstract meta-issues like states rights are serious business or just a means to an end.

0

Hi Mom!

Mommybird.jpgToday is mother’s day.

I could do a blog post on the social construction of motherhood; Joan Chalmers Williams’ work about discrimination against mothers in the workplace; or review historian Annelise Orleck’s book about mothers who became political activists.

I could do some, any, or all of these things here, but as I’ve brought my mom to NYC for the weekend, I need to make this brief so that I can spend more time with her.

Therefore, I’ll end with a gentle reminder to call your mom (or other nurturing figure in your life…) today. Otherwise you’ll risk the ire of the plaintiff’s attorney featured in the New Yorker cartoons, who to paraphrase loosely says: “Have your kids forgotten about you? We sue negligent children!”

1

Review of Apex Hides the Hurt

Apex.jpgIn this latest novel from Colson Whitehead, the (ironically) unnamed protagonist is a “nomenclature consultant” who takes delight in helping corporate American find the best names for particular products. He names a social anxiety drug “Loquacia,” and he names a multicultural band-aid (it is sold in numerous skin tones) “Apex.”

The novel loosely centers around a legal dispute (of sorts), with a city council deadlocked on the rightful name of a growing Midwestern town. Founded by Black settlers leaving slavery behind and striking out for a better life on the plains, the town was originally named “Freedom.” Only a few years later, a wealthy white industrialist brought his factory along with a new name for the town, “Winthrop.” Today the Winthrops are a family in decline, and a new economy entrepreneur wants to rename the town “New Prospera.”

With the city council split three ways, our narrator must arbitrate the dispute. I will not give any spoilers, but the end somehow leaves a number of questions unanswered. And, although filled with clever language, puns, and plays on words – the major strength of this book – the major plot lines fail to grab the reader’s attention, and the characters seem underdeveloped.

It could have been a great book about an unusual legal dispute, or about race in America, but somehow fell short on both accounts. (Points for clever puns though).

10

Big (Business) Love Is a Bust

biglove.jpgLarry Ribstein, Ann Althouse, and Christine Hurt all have recently commented on HBO’s new series “Big Love.” To one degree or another, each has focused especially on the business-law themes in the show, which they see variously as a source of weakness (Althouse), social commentary (Ribstein), or tremendous fun (Hurt).

For what it is worth, I’m mostly with A.A. here. The show’s evil character, Roman Grant, and its main hero, Bill Henrickson, are engaged in a long-running conflict which nominally regards the scope of profit-sharing clause in a loan agreement. Does the clause cover only the first store Bill built, or later stores as well? I like these issues well enough when I teach them, but as conflict fodder on a nighttime-soap, this is weak gruel. Compare the contract problems in B.L. to the simmering fight between Swearengen and Bullock and Wolcott (and others) on Deadwood about the proper role of law in constraining business, sex, and violence: the better show stands out by a mile. Plus, the writing on Deadwood is better – product, no doubt, of series creator David Milch’s golden pen. I’d give an example, but they are all profane. Notwithstanding Filler’s example, this is a family-friendly blog. Oh, ok, one link.

However, in the last B.L. episode, there was a hint that the conflict between the protagonists will soon move from accounting tricks to religion, as a character suggested that Bill was forced to leave his home at an early age because of Roman’s worry that he was a true prophet. In my view, this would be a good dramatic move. Contract interpretation, even including a neat parole evidence issue or two, simply isn’t sexy enough to compete with T.V.’s other offerings.

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

Fun! Fun! Fun! In The High Court Of Justice, Chancery Division

Mr. Justice Peter Smith, the British judge hearing the Da Vinci Code copyright case, has issued an opinion which contains some sort of hidden message. Italic letters in the first seven paragraphs spell out “Smithy Code.” In subsequent paragraphs, other letters also stand out, but they have yet to be deciphered. The judge was very candid about his work, saying in an interview “I can’t discuss the judgment, but I don’t see why a judgment should not be a matter of fun.” Gowri Ramachandran over at Prawfs agrees.

This is not the first time that a judge has crafted an opinion with an eye towards entertainment. Judge Kent’s famous order denying a motion to transfer has long been a Smoking Gun staple. Judge Buchmeyer’s opinion in Rimes v. Curb Records, written to the tune of Leann Rime’s “How Do I Live” is another goodie. (A portion of it can be found here.) Indeed, there is a whole website dedicated to curious and entertaining judicial opinions.

Are there institutional costs to using opinions in this way? In the individual case, it would seem to make little difference how funny or dry the opinion. But over time, if judges start to be seen as frustrated comedians, I wonder if the judiciary writ large loses some of its gravitas. Can a judicial comedian command the respect necessary to desegregate a school district, put a sitting governor in jail, or override a jury’s death verdict and impose life? (I discuss some of these issues in my piece, From Law to Content in the New Media Marketplace.)

I suspect that judges reap a benefit from these opinions beyond the opportunity to flex their funny muscles. I’m guessing – and I’d love to hear if this is right from those who know – that funny judges like Kent and Buchmeyer do particularly well hiring law clerks. Who wouldn’t want to clerk for a judge who airs it out from time to time?

There is also a broader question about whether the social role of judicial opinions changes when they are marketed by media outlets as “fun reading”. Will these content distributors push judges to produce more such opinions? Judicial decisions are, after all, free content. They aren’t copyrighted and the authors are paid with tax money. And the sale of quality free content produces very nice profit margins. Think these concerns are a bit silly? Think that nobody would really look at an opinion for fun? Consider today’s Birmingham News, where on the front cover the editors tease: “CAN YOU CRACK THE CODE? See the ruling online at www.al.com/birminghamnews/documents. ”

Will Shortz, watch your back!

0

You gotta have Friends

The California Supreme Court has ruled in Lyle v. Warner Bros., the Friends sexual harassment case. The plaintiff alleged a hostile work environment, stemming from writers’ use of offensive jokes about sex during script writing sessions. The court disagreed, ruling unanimously against plaintiff in upholding the trial court’s summary judgment decision. The decision states in part:

Based on the totality of the undisputed circumstances, particularly the fact the Friends production was a creative workplace focused on generating scripts for an adult-oriented comedy show featuring sexual themes, we find no reasonable trier of fact could conclude such language constituted harassment directed at plaintiff because of her sex within the meaning of the FEHA. Furthermore, to the extent triable issues of fact exist as to whether certain offensive comments were made about women other than plaintiff because of their sex, we find no reasonable trier of fact could conclude these particular comments were severe enough or sufficiently pervasive to create a work environment that was hostile or abusive to plaintiff in violation of the FEHA.

In addition, Justice Chin argued in a concurrence (relying largely on the writings of Eugene Volokh) that the plaintiff’s claim is barred by the defendant’s freedom of expression under the First Amendment. David Bernstein at Volokh.com has a post suggesting that the majority should have based its decision on that ground.

4

The epicurean ecumenical

One effect of living in a religiously plural society is an ability to reap epicurean rewards. I’m reminded of this every time I take the opportunity to stock up on Passover Coke. Passover Coke is made with sugar, rather than corn syrup. As such, it is acceptable for Passover use by observant Jews. It is also considered by most Coke drinkers to be a tastier beverage, and so non-Jewish buyers like myself take advantage of this opportunity to buy tastier Coke.

(When I buy Passover Coke, I only do so from full shelves. My inner ethical meter won’t let me buy the last, or even close-to-last bottle of Passover Coke from any store. I find myself imagining that such action on my part would affect some poor observant Jew shopping at the same store few minutes later — that I would deprive her of her chance to buy Coke, and she would have to sit through a Passover without Coke because of my selfish actions. So, no last bottles for me — but if the shelf is full, I make sure to stock up.)

It’s not just Passover Coke, either. It’s fun to hit a diner and order some Matzo ball soup. (That stuff is tasty, particularly on a chilly New York day) Also, during Hannukah, my old law-firm cafeteria sold cute little Hannukah chocolates that I regularly took home for the kids. And so on.

I hope that this epicurean ecumenicalism isn’t a one-way street. I hope that some of my Jewish friends enjoy the (probably more limited) epicurean benefits of Christian holidays — chocolate Easter bunnies and Cadbury eggs, candy canes and gingerbread.

And while I don’t want to overstate the point, I can’t help but think that enjoying the tasty celebrations of other religious groups has to have a salutary effect on inter-group tolerance and understanding. Perceptions of a group’s gastronomic profile can certainly affect society’s thinking. If lies about Jewish dietary habits (among other things) spread by the Czar’s secret police can lead to pogroms and hatred, then can’t a shared bowl of Matzo ball soup, washed down with some Passover Coke, lead to greater understanding and appreciation of diverse religious culture and tradition? I like to think so.

In the meantime, there’s a strictly-vegetarian Indian place up the 15 a ways, next to a Hindu temple, that I’m hoping to get to some time soon.