Why legal scholarship?

Some readers outside of academic circles may understandably wonder about the usefulness of engaging in scholarly research and writing, especially when much of what professors produce seems abstract, theoretical, and laden with jargon and citations. I can’t speak for all academic disciplines or all scholars, but I can address the inquiry from my standpoint and experience as a law professor.

For me, engaging in legal scholarship has opened the door to the development of law reform proposals such as drafting the anti-bullying Healthy Workplace Bill and challenging the practice of unpaid internships. In both of these instances, the work started with a foundational writing in the form of a comprehensive law review article:

Here’s a snippet of what I say about that scholarly process in my forthcoming article, “Intellectual Activism and the Practice of Public Interest Law” (Southern California Review of Law and Social Justice):

For law professors, lawyers, and law students, the most likely publication venue for this foundational writing will be a scholarly law journal. The traditional law review article, even with its stodgy and sometimes excessive conventions of style and citation, requires us to document our sources and to spell out, in painstaking detail, the bases of a conclusion or recommendation. In this sense, it also serves as the primary database of sources informing our work, containing through footnotes our main bibliography, which in turn show how these materials relate to the overall analysis and argument. As a whole, it serves as the core document for subsequent efforts to bring a topic before a more public audience. If the writer has succeeded in the tasks of research and analysis, then the recommended action steps may justifiably be considered “evidence-based.”

That foundational research piece becomes the basis for developing law reform initiatives, such as “drafting model legislation or administrative rules,” “developing litigation strategies,” “supporting impact or class-action litigation through brief writing and other tasks,” and “designing bureaucratic or structural reforms.” It may also involve public education work such as blogging and social media outreach, providing interviews to print and electronic media, and partnering with supportive organizations.

In other words, doing legal scholarship creates opportunities to influence the law and how people think about it.

I wish I could say that legal academe has embraced scholarship for the potential usefulness of its content, but like so many other academic disciplines, questions of individual and institutional prestige and rankings tend to predominate discussions of what “counts.” In too many circles, scholarship has become mainly a commodity, signifying who stands where in the pecking order and deployed as currency to obtain appointments at more prestigious institutions.

In a 2010 law review article, “Therapeutic Jurisprudence and the Practice of Legal Scholarship” (University of Memphis Law Review), I critiqued that debilitating culture of scholarship and suggested that there are healthier ways for us to regard and use scholarly work. I framed my viewpoint in the context of therapeutic jurisprudence, a legal philosophy that implicitly favors laws and procedures that promote psychologically healthy outcomes.

In essence, I challenged a prestige-driven culture of legal scholarship that inevitably produces “a handful of ‘stars’ and a vast assemblage of ‘worker bees,'” with the twist being that a lot of people eventually lopped into the latter category have bought into that value system. The far better approach, I suggested, is to value scholarship for its content, meaning its ability to inform, enlighten, provoke, and persuade, and letting the rest take care of itself.

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Annotated Bibliography

For those interested in reading more about the intersection of scholarship and social action, I have included a short annotated bibliography of some 40 relevant, mostly non-legal books in my article, “Intellectual Activism and the Practice of Public Interest Law.”

What is at-will employment?

The legal rule of at-will employment is the presumptive employment relationship in the United States. It means that an employer can hire or terminate a worker for any reason or no reason at all, so long as that action does not violate existing legal protections. It also means that an employee may leave a job for any reason or no reason at all, again, subject to existing legal protections.

Outside the U.S., at-will employment is not the norm. In many industrialized nations, workers can be terminated only for just cause, which usually means inadequate performance, serious misconduct, or financial exigency. Within the U.S., such protections typically extend only to unionized workers (less than 12 percent of the workforce) and to select categories of employees, such as tenured professors.

At times, at-will employment can inure to the employee’s benefit, especially if someone has unique talents that can be shopped around in the midst of a robust job market. However, more often the employer holds the cards in at-will employment situations, especially when jobs are in short supply.

This is why employers in the U.S., in particular, have been extremely opposed to relinquishing their at-will right to hire and fire. It’s one of the main reasons why they resist labor unions that introduce collective bargaining to the employment relationship.

Here’s a snippet of what I wrote about at-will employment in my 2009 law review article, “Human Dignity and American Employment Law” (University of Richmond Law Review):

The low union density in America means that most workers are not covered by collective bargaining agreements and presumptively are at-will employees. In terms of voice in the workplace, the typical at-will employee enjoys, at best, the ability to make requests of, or submit non-binding suggestions to, an employer. Only the most fortunate individuals, notably those with special skills or in high-demand professional, athletic, or artistic vocations, possess the leverage to engage in individual negotiations over job security, compensation, and working conditions.

Consequently, in most non-union workplaces, the power to set internal employment policies, as well as compensation and benefits, remains largely in the hands of management, but is subject to compliance with regulatory standards. At larger companies, high-level executives establish broad parameters for employment relations, human resources offices administer personnel policies, and mid-level managers supervise and evaluate the work of sub- ordinates. They are supported by in-house lawyers who provide advice, counsel, and litigation support.

Of course, at-will employees are not without labor protections and safeguards. In particular, the 1960s and 1970s witnessed the emergence of a large body of statutory, administrative, and common-law protections granting various employment rights to individuals. The most notable of these are the Civil Rights Act of 1964 and other employment discrimination laws, the Occupational Safety and Health Act, and various wrongful discharge claims grounded in contract and tort law doctrine. The ongoing development of this body of law has resulted in greater safeguards against physical and dignitary harms, created several exceptions to the rule of at-will employment, and forged a modest safety net of wage and benefit protections.

For most American workers, this somewhat unwieldy legal smorgasbord serves as their primary source of legal protections on the job. Although the creation of individual employment protections was spurred in part by civil rights advocacy backed by the solidarity of social movements, workers often must effectuate these rights in solitary fashion, pursuing stressful, lengthy, and expensive legal proceedings, typically without the benefit of large group or union support. Modern employment litigation all too often encompasses the David versus Goliath scenario of an aggrieved worker and a small plaintiffs’ law firm vying against a large company armed with an overstaffed team of attorneys.

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Related posts

“Master and servant”: The roots of American employment law (2013) — “‘Master and servant’ is a legal term ported over from English common law, centuries ago. It is what it sounds like, a term deeply rooted in hierarchical, subservient personal and occupational relationships.”

At-will employment and the legality of workplace bullying: A brutal combo punch (2011) — “In the U.S., the combination of at-will employment and the lack of protections against workplace bullying make for a brutal combo punch that often leaves mistreated workers legally powerless.”

“On Limiting the Abusive Exercise of Employer Power” (2011) — “For legal geeks like me, one of the starting places for understanding the modern state of workers’ rights is a classic 1967 Columbia Law Review article by University of Kansas law professor Lawrence Blades, ‘Employment at Will vs. Individual Freedom: On Limiting the Abusive Exercise of Employer Power.’ . . . Although he may not have fully anticipated the growth of the service sector and the non-profit sector and the significance of employment discrimination law, his success is in how he foresaw the expansion of private economic power and shaped the thinking of employment law scholars and other legal stakeholders.”

The casino economy and psychological health at work

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The financial markets are in turmoil right now, making this a jittery time for investors large and small. Thankfully, the current stock market “correction,” as the financial analysts call it, is probably not the start of new recession. However, it definitely impacts people’s confidence in the state of the economy.

Stock market outlooks also affect the everyday experience of work. Just last week, I posted an article asking whether the Great Recession has stoked a continuing climate of fear in the workplace. While finances and economics may seem to be all about hard numbers, in reality markets are very psychological in nature. In times of major market uncertainties, those anxieties often trickle down to the everyday experience of work.

What will happen if the stock market is in for a rough ride? Among other things, employers in all sectors (private, public, non-profit) may be more nervous about hiring. It also means that pressures to produce more with fewer resources could intensify. Workers fearing unemployment may continue to endure bad work environments, rather than leave without another job in hand. Workplace bullying and incivility may well occur more frequently as tensions on the job rise.

This is modern life in the casino economy. The wins and losses of those playing at the big money tables affect those playing the nickel slot machines. And for folks in the latter group, the stakes are very high, even if their control over them is limited.

President Carter’s first great lesson in personal resilience

President Jimmy Carter has received a dire cancer diagnosis, one that he is facing with a sense of peace, grace, and courage that I find remarkable. The New York Times reports how he greeted news that cancer had spread to his brain:

“But I was surprisingly at ease,” Mr. Carter added. “I’ve had a wonderful life, I’ve had thousands of friends, and I’ve had an exciting and adventurous and gratifying existence.”

As President Carter’s health and treatment now play out before us, perhaps we should keep in mind why, at age 90, he has remained so visibly in the public eye. Since leaving the White House in 1981, he has built an extraordinary body of peacekeeping and humanitarian work, mostly through the non-profit Carter Center that he and his wife Rosalynn established.

Elected President

Jimmy Carter, a Democrat, was elected President in 1976. His path to the White House was an unconventional one. A one-term Governor of Georgia, he ran an outsider, reform-minded campaign that resonated with voters in the wake of the Watergate scandal that had led to Richard Nixon’s resignation in 1974.

Carter’s term in office, however, was a rocky one, characterized by a difficult economy on the domestic side and growing tensions in the Middle East, the latter culminating in the Iranian hostage crisis that consumed the last year of his presidency. In 1980, Ronald Reagan won the Republican nomination and beat Carter in a November election that also swept away dozens of leading liberal Democrats from the House and Senate. It was a watershed election that marked the revival of American conservatism.

Post-Presidency

For Carter, the 1980 vote was a humiliating public repudiation, a rare loss for an incumbent President. He instantly became a pariah within the Democratic Party and would be largely ignored during many succeeding party conventions.

But Carter, 56 years old when he left office, would not abandon his commitment to public affairs. A deeply religious and self-reflective man, he spent the immediate aftermath of his electoral loss contemplating his future. In 1982, he and Rosalynn would create the Carter Center, locating it in Atlanta and affiliating with Emory University. Here is how the current Carter Center brochure describes its work:

Founded in 1982 by former U.S. President Jimmy Carter and his wife, Rosalynn, The Carter Center advances peace and health worldwide. A nongovernmental organization, the Center has helped to improve life for people in more than 70 countries by resolving conflicts; advancing democracy, human rights, and economic opportunity; preventing diseases; improving mental health care; and teaching farmers to increase crop production.

Though slightly dated, historian Douglas Brinkley’s The Unfinished Presidency (1998) best tells the tale of how Jimmy Carter rebounded from his devastating 1980 defeat. It is a story of recovery (personal and professional), resilience in the face of rejection and adversity, and ultimate renewal.

President Carter’s battle with cancer may well have more lessons to teach us. But we can also draw considerable insight and inspiration from how he recovered and renewed his life after that terrible defeat in 1980.

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Personal resilience is a theme running throughout this article, and I know that many readers find this blog because of their own trials at work and career setbacks. The American Psychological Association has put together a resource page, The Road to Resilience, that some will find helpful. 

Working Notes: Engaging in intellectual activism

I’m delighted to share a draft of a forthcoming law review article on intellectual activism and news of a wonderful new board affiliation with a favorite group.

“Intellectual Activism and the Practice of Public Interest Law”

I’ve posted to my Social Science Research Network page a draft of a law review article, “Intellectual Activism and the Practice of Public Interest Law,” which will appear in the Southern California Review of Law and Social Justice, published at the University of Southern California law school. You may access a freely downloadable pdf version here.

Here is the article abstract:

How can law professors, lawyers, and law students use legal scholarship to inform and inspire law reform initiatives that advance the public interest? How can we bridge the gaps between academic analyses that sharpen our understanding of important legal and policy issues and practical proposals that bring these insights into the light of day and test their application? How can we bring an integrated blend of scholarship, social action, and evaluation into our professional practices?

I would like to explore these and related questions by invoking a simple framework that I call intellectual activism, which serves as both a philosophy and a practice for engaging in scholarship relevant to real-world problems and challenges, putting its prescriptions into action, and learning from the process and results of implementation. In the legal context, intellectual activism involves conducting and publishing original research and analysis and then applying that work to the tasks of reforming and improving the law, legal systems, and the legal profession.

This article explores the concept and practice of intellectual activism for the hopeful benefit of interested law professors, lawyers, and law students. It is a very personal piece, grounded in extensive scholarly, public education, and advocacy work that I have done in two areas: (1) researching and authoring proposed workplace anti-bullying legislation and building public awareness of the phenomenon of bullying at work; and (2) playing a visible role in an emerging legal and social movement to challenge the widespread, exploitative practice of unpaid internships. It also discusses my involvement in three unique, multidisciplinary networks and institutions that have nurtured my work in an intellectual activist mode, examines the relevant use of social media, and provides examples of how law students can function as intellectual activists.

The article also includes an annotated bibliography of books broadly related to intellectual activism. Those seeking guidance and inspiration on how to blend scholarship and social action will find some valuable stuff in this book list.

Human Dignity and Humiliation Studies

I have gratefully accepted an invitation to join the board of directors of Human Dignity and Humiliation Studies (HumanDHS), a global, transdisciplinary network of scholars, practitioners, activists, and students who are committed to advancing human dignity and reducing the experience of humiliation.

I have written frequently about HumanDHS and my participation its annual workshops, including a piece last week highlighting writings by some of its core members that dig deep into the meaning of dignity and humiliation in our society. 

Frankly, some requests to join non-profit boards feel like a burden. Others, however, naturally mesh with one’s ongoing work and activities. My joining the HumanDHS board fits squarely in the latter category.

Six points on the NY Times investigative piece on Amazon’s work practices

 

Last Sunday’s New York Times investigative piece on Amazon’s white-collar work practices has been stirring up a lot of discussion, and if you’re at all interested in the experience of work in today’s digital age, then you owe it to yourself to spend some time with it.

Times reporters Jodi Kantor and David Streitfeld tell a story of a highly pressurized, survival-of-the-fittest work environment, based on over 100 interviews with current and former Amazon employees:

At Amazon, workers are encouraged to tear apart one another’s ideas in meetings, toil long and late (emails arrive past midnight, followed by text messages asking why they were not answered), and held to standards that the company boasts are “unreasonably high.” The internal phone directory instructs colleagues on how to send secret feedback to one another’s bosses. Employees say it is frequently used to sabotage others. (The tool offers sample texts, including this: “I felt concerned about his inflexibility and openly complaining about minor tasks.”)

It is a culture driven by data, customer preference, and a single-minded devotion to company success. The article suggests that even serious personal circumstances are no excuse:

A former human resources executive said she was required to put a woman who had recently returned after undergoing serious surgery, and another who had just had a stillborn child, on performance improvement plans, accounts that were corroborated by a co-worker still at Amazon. “What kind of company do we want to be?” the executive recalled asking her bosses.

It’s a piece that digs deep into the culture of Amazon and the management philosophy of its founder and leader Jeff Bezos.

The Times article has triggered an avalanche of commentary on the Internet, especially among news and commentary sites that one might deem moderate to liberal in their orientation or that frequently cover the high tech industry. The New YorkerLos Angeles TimesSlateSalonThe Guardian, and Vox are among the countless sites that have weighed in — sometimes thoughtfully, other times more predictably.

It also prompted a response from Jeff Bezos (which I’ll discuss below) and a heavily read defense of Amazon by a current employee posted to LinkedIn.

While recognizing that this is a discussion-in-progress, I’d like to share six points that I’ve mustered about the Times Amazon story and its aftermath.

Observation No. 1: It’s too early to tell if this is a “tipping point” journalistic event

Is this the Big Story that gets us to look more critically about the experience of white-collar work in America? Judging from the mega-clouds of Internet commentary, one is tempted to say absolutely yes. But let’s return to this question in a year or two for an accurate answer.

In the meantime, I think it’s safe to say that this is a trending water cooler topic in many large organizations. Surely the Times article and related pieces will offer fodder for many, many class discussions in business schools, especially management, leadership, human resources, and business ethics courses.

Observation No. 2: Jeff Bezos’s response speaks volumes

Not surprisingly, Bezos has strongly denied the characterizations of Amazon’s work environment and practices reported in the Times article. In a follow-up piece, Streitfeld and Kantor reported that Bezos:

deplored what he called its portrait of “a soulless, dystopian workplace where no fun is had and no laughter heard” and said, “I don’t think any company adopting the approach portrayed could survive, much less thrive, in today’s highly competitive tech hiring market.”

He told workers: “I don’t recognize this Amazon and I very much hope you don’t, either.”

So here are the main possibilities:

  1. The Times got the original story very, very wrong;
  2. Bezos is being disingenuous;
  3. Bezos is simply on another planet when it comes to management philosophy, and/or,
  4. Bezos doesn’t know about employee practices and policies in his own company.

Could the Times have blown it? It’s highly doubtful. This investigation covered a ton of ground. The reporters also requested an interview with Bezos, which was refused by Amazon.

Personally, I think it’s a combination of items 2, 3, and 4.

Very revealing to me is what Bezos shared with his workers. Streitfeld and Kantor further reported on a memo that Bezos circulated to Amazon’s employees:

In a letter to employees, Mr. Bezos said Amazon would not tolerate the “shockingly callous management practices” described in the article. He urged any employees who knew of “stories like those reported” to contact him directly.

“Even if it’s rare or isolated, our tolerance for any such lack of empathy needs to be zero,” Mr. Bezos said.

Translation: We have zero tolerance for lack of empathy. Please drop a dime on anyone who falls short on this measure so we can purge them.

Yikes.

Observation No. 3: Meanwhile, back at the warehouse…

The enormous response to the Times story suggests that our economic class biases are showing. Allegations of terrible working conditions and low wages for Amazon’s warehouse workers have been surfacing for years, yielding nothing like the current outcry.

Last year, in a piece explaining why I cancelled my Amazon Prime account, I highlighted a Salon investigative piece by Simon Head, “Worse than Wal-Mart: Amazon’s sick brutality and secret history of ruthlessly intimidating workers,” which detailed the warehouse working environments:

As at Walmart, Amazon achieves [fast delivery systems] with a regime of workplace pressure, in which targets for the unpacking, movement, and repackaging of goods are relentlessly increased to levels where employees have to struggle to meet their targets and where older and less dextrous employees will begin to fail. . . .

Amazon’s system of employee monitoring is the most oppressive I have ever come across and combines state-of-the-art surveillance technology with the system of “functional foreman,” introduced by [Frederick] Taylor in the workshops of the Pennsylvania machine-tool industry in the 1890s. . . . London Financial Times economics correspondent Sarah O’Connor describes how, at Amazon’s center at Rugeley, England, Amazon tags its employees with personal sat-nav (satellite navigation) computers that tell them the route they must travel to shelve consignments of goods, but also set target times for their warehouse journeys and then measure whether targets are met.

All this information is available to management in real time, and if an employee is behind schedule she will receive a text message pointing this out and telling her to reach her targets or suffer the consequences.

Observation No. 4: We (or at least many of us) are complicit as customers

As some of these commentaries are recognizing, consumer demand for nearly instant gratification is fueling Amazon’s workplace practices. Amazon’s regard for its own employees may be questionable, but it gives customer service the highest priority. (A search for surveys on “best customer service” will verify this.)

However, that very consumer demand is feeding Amazon’s all-consuming workplace culture. Here is how I explained my decision to cancel my Prime account last year:

I cancelled my Amazon Prime account earlier this week, and until working conditions for their employees improve, I won’t be shopping there nearly as often as I have previously.

Amazon Prime is a premium membership service that guarantees two-day shipping on almost every item ordered. For frequent customers such as myself, Prime offers easy, dependable, click-and-ship ordering, with hardly any waiting time for delivery.

However, revelations about Amazon’s labor practices have become increasingly disturbing, more specifically the working conditions in its vast merchandise warehouses.

. . . Many years ago, I cut my working teeth in retail stores. When the store floor was busy with customers, or when a shipment of goods had to be unloaded from delivery trucks, we stepped up and got the work done right. When things weren’t as busy, we dialed it down a bit. Overall, people did their jobs steadily and dependably, and we didn’t need to have our every move timed and monitored by managers. We didn’t make a lot of money, but we were treated decently. Amazon, however, regards its warehouse workers as human robots.

I’m not suggesting that we completely boycott Amazon. But customer options such as Prime fuel their very worst labor practices. Surely these workers deserve better working conditions, even if it means that we wait, say, three days rather than two for a delivery.

Observation No. 5: Amazon’s workplace practices highlight the fault line between extremely hard driving management and bullying

The theme of workplace bullying does not manifest itself in either the Times article or much of the resulting commentary. Instead, the focus is on a management style and organizational culture that demands complete commitment and hyper-competition.

That said, assuming accounts of the company’s responses to severe employee health conditions are accurate, then Amazon has a remarkable empathy deficit. The intentions may be all about notions of “excellence,” but the practices reveal, well, an out-of-control sense of control over workers’ lives and well being.

Observation No. 6: Newspapers and their reporters still matter

This is why (among other reasons) we still need newspapers and investigative reporters who are capable of carrying out lengthy investigations and then reporting their findings in detail.

Most Internet news/commentary sites cannot do this. They may break a story now and then, but not one requiring this level of background work. The abundance of current online commentary on Amazon’s work practices was enabled by the spadework done by Times reporters Kantor and Streitfeld and their colleagues.

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This column makes me the latest among the stampede of commentators on this story. I hope it has provided some useful food for thought.

Did the Great Recession fuel a continuing climate of fear in the workplace?

Edvard Munch's "The Scream" (1893)

Edvard Munch’s “The Scream” (1893)

According to economists, the Great Recession is officially over, having “ended” sometime during 2009-2010. However, its negative shock waves continue to impact world economies, labor markets, and the experience of work. Among the most costly and underreported effects is how the Great Recession has enabled some employers to stoke an ongoing climate of fear in the workplace.

British psychologist and consultant Sheila M. Keegan, in her thought-provoking new book The Psychology of Fear in Organizations (KoganPage, 2015), suggests that even though the “recession has eased, . . . its psychological effects may well be with us for some years to come.” In fact, she offers the possibility that “just as the Second World War shaped the attitudes of a generation, so too the recent recession will shape the attitudes, behaviours and fears within organizational life for some decades to come.”

This does not bode well for the current state of our workplaces. In her Preface, Dr. Keegan states:

There is a considerable body of research that points to the rise of fear within organizations and indeed a climate of fear that is widespread and contagious. Employees feel fearful of job loss, of being demoted, bullied, shamed or humiliated. This level of fear can become self-sustaining so that it is difficult to separate the causes of fear; fear at work becomes normalized.

I’ll have more to say about this excellent book in a future post, but for now let’s center on the effects of the recession on psychological health in the workplace. Keegan is spot-on in her assessment: We’ve seen evidence, for example, that bullying-type behaviors tend to be more frequent in recessionary economies. We also know that this recession has led to massive job losses and continuing fears of unemployment. Less humane employers have played on workers’ fears by trying to squeeze every ounce of work out of them, while freezing or cutting their pay and benefits. Intentionally generated stress and anxiety are everyday parts of too many work lives.

Some might say that people simply have to suck it up and deal with it. Tough economic times are just that, right? Generally speaking, personal resilience is a good thing, but especially if the Great Recession has left a long-term psychological imprint on the workplace, then we need to talk about comprehensive responses and changes. Ultimately, we need to prompt a paradigm shift that puts human dignity at the center of our systems and practices of employee relations.

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Related posts

Our economic systems, psychopathy, and bullying at work (2014)

Making human dignity the centerpiece of American employment law and policy (2014)

Suicide and the Great Recession: Will we heed the tragic warnings? (2013)

For more on the links between recessionary economies and workplace bullying, go herehere, and here.

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