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Sunday, January 06, 2008

The Incredible Shrinking NLRB


The Incredible Shrinking NLRB

That's what the Lawyers USA blog DC Dicta calls it, noting that the five-seat National Labor Relations Board will soon be down to only two members, Democrat Wilma B. Liebman and Republican Peter C. Schaumber. Former chairman Robert J. Battista's term expired Dec. 16, and members Peter N. Kirsanow and Dennis P. Walsh are serving in recess appointments that expire this month.

The shrinkage comes after a rocky 2007, the blog notes, "marked by a host of 3-2 decisions divided down party lines, a complaint issued against it by the AFL-CIO which claimed the board was systematically destroying the right of employees to unionize and conduct union activities, and a congressional hearing where members of the Board were called before U.S. lawmakers to explain the situation." Last week, the NLRB issued an announcement saying that the two remaining members would continue to issue decisions and orders by way of a delegation from the full board and that it had delegated temporary authority to the NLRB's general counsel over all litigation matters that would require board authorization.

Meanwhile, at his Employment Law Blog, Willamette law professor Ross Runkel has kicked off a 12-part series of posts examining the NLRB's legacy under President Bush. In the first, he considers the board's back-and-forth debate over whether to extend Weingarten rights to non-union workers. In the second, he discusses the board's December decision  upholding restrictions on the use of company e-mail for non-work solicitations. More to come from Runkel, all of which he will collect on this page.

Posted by Robert J. Ambrogi on January 4, 2008 at 11:02 AM | Permalink | Comments (0)

Saludos
Rodrigo González Fernández
DIPLOMADO EN RSE DE LA ONU
www.Consultajuridicachile.blogspot.com
www.lobbyingchile.blogspot.com
www.el-observatorio-politico.blogspot.com
Renato Sánchez 3586
teléfono: 5839786
e-mail rogofe47@mi.cl
Santiago-Chile
 
Soliciten nuestros cursos de capacitación   y asesorías a nivel internacional y están disponibles para OTEC Y OTIC en Chile

Friday, January 04, 2008

Recent Posts fon legal blog watch

Saludos
Rodrigo González Fernández
DIPLOMADO EN RSE DE LA ONU
www.Consultajuridicachile.blogspot.com
www.lobbyingchile.blogspot.com
www.el-observatorio-politico.blogspot.com
Renato Sánchez 3586
teléfono: 5839786
e-mail rogofe47@mi.cl
Santiago-Chile
 
Soliciten nuestros cursos de capacitación   y asesorías a nivel internacional y están disponibles para OTEC Y OTIC en Chile

from legal blog wath


Time Again for More Criticism of the Billable Hour

It's one thing for lawyers to criticize the billable hour amongst themselves, as Scott Turow did with the publication of his essay, "The Billable Hour Must Die," in the ABA Journal.  But now, the debate over the billable hour has spilled over from lawyer publications into the mainstream press, with articles such as "The Scourge of the Billable Hour: Could Law-Firm Clients Finally Kill it Off?," that appeared online at Slate.com on January 2, 2008. 

The Slate piece makes an important, albeit obvious point: Despite persistent criticism of the billable hour by academics, lawyers and bloggers, the system won't change until clients demand a change. And according to the article, that's what clients are doing now.

As the article describes, clients' desires have always driven law firm billing practices. Hourly billing gained traction in the 1950s, partly to cater to clients who wanted more transparency. But law firms also realized that they could earn more money by billing more hours -- and thus, began increasing billable hour requirements and finding ways to encourage redundancy rather than efficiency. But now, tired of subsidizing law firm gravy trains, large corporate clients are forcing firms to offer alternative billing arrangements, such as flat fees, volume discounts and banning new associates from working on matters.

From the article, here's how the legal world might look if the trend away from the billable hour continues:

The top end of the spectrum will remain largely unchanged. Companies will still pay hourly rates to hire white-shoe law firms for specialized, bet-your-company kinds of work. On the opposite end, however, clients will stop taking their rote legal work to law firms altogether. Companies already outsource relatively simple matters like document review to consulting services. And as technology improves, more programs will let companies handle their own contracts online. In the murky middle between one-of-a-kind advice and dime-a-dozen contracts, the push for alternative arrangements will prevail.

In some ways, the legal world is changing already, and moving in this direction. As we described here, one Boston law firm has banned the billable hour entirely.  And as Indiana family law attorney Sam Hasler describes in this comprehensive post, many family law attorneys have adopted flat fee structures, finding that clients prefer these arrangements because they result in more predictable legal fees. 

At the same time, for every step forward, there are forces that hold the profession back. Old habits die hard, suggests Stephanie West Allen at Idealawg.  The lawyer brain, accustomed to grueling schedules and prone to workaholism, may resist the killing of the billable hour. Meanwhile, Barry Barnett at Blawgletter suggests that firms that can't handle this kind of complex litigation without a staff of 59 lawyers won't be offering alternative billing plans (like a contingency fee) anytime soon. 

So, is 2008 the year that we'll really see client pressure on firms to offer alternative billing, as Wired GC predicts?  Or, like the billable hour, is all of the continued talk of getting rid of it, simply redundant?

Posted by Carolyn Elefant on January 3, 2008 at 12:26 PM | Permalink | Comments (1)

Ouch -- D.C. Calls Former Lawyer and Supreme Court Litigator 'Not Indispensable'

"It's not as if one person is indispensable," said D.C. Attorney General Peter Singer to the Washington Post, explaining why his decision to fire Supreme Court litigator, Alan Morrison won't compromise the District's case before the Supreme Court in District of Columbia v. Heller. The case will address the question of whether the District's handgun ban violates the Second Amendment.  Ouch!  After all, if a Supreme Court advocate like Morrison, with twenty oral arguments under his belt and who played a substantial role in researching and drafting the District's 15,000 word brief due at the Court tomorrow is regarded as fungible, what hope is there for the rest of us?

As Tony Mauro reports at the Blog of the Legal Times, Morrison speculated that he was fired because he was viewed as a "loyalist" of Nickles' predecessor, Linda Singer, who resigned on December 21.  Nickles did not offer any additional explanation for firing Morrison, except to say that the District had decided to take a different direction in the case.  And to be fair, even without Morrison, the District's Supreme Court team still includes top talent like Tom Goldstein and Walter Dellinger, though apparently both are already booked for arguments in other cases before the Court this month and next.

What do you think?  With this kind of "dream team," does the elimination of one of the players make a difference?  Or will Nickles' decision to bench Morrison midway through the case compromise the District's chance of success at the High Court?

Posted by Carolyn Elefant on January 3, 2008 at 10:44 AM | Permalink | Comments (0)

A Lawyer Sitting With the Sharks

Some lawyer stereotypes -- such as the image of the lawyer as a shark -- are so pervasive that it's easier to embrace them rather than try to erase them.  And that's apparently what Bozeman, Montana family law attorney Chris Gillette decided to do, when he installed an eight ton shark tank in his office.  (H/T to Lowering the Bar.)  Gillette originally planned the shark tank as a joke, but then realized that it could also help create a more comfortable atmosphere for his clients, who are often dealing with stressful situations.  Of course, I don't quite understand Gillette's logic; after all, when I think of a soothing environment, a seat in close proximity to a shark tank doesn't come to mind.  At the same time, I suppose that a shark tank could help family law clients put their problems in perspective by making them realize that, bad as the court process may be, it's still better than being trapped in a tank with carnivorous fish.

In any event, based on this discussion at his Web site, Gillette doesn't seem shark-like at all.  Among other things, Gillette's Web site explains to clients that he acts cooperatively with opposing counsel and will, if appropriate, consider compromises and negotiations even if proposed by the other side. 

Posted by Carolyn Elefant on January 3, 2008 at 10:25 AM | Permalink | Comments (0)

America's Funniest Legal Videos, Online Now

Looking for a few laughs?  Well then, why settle for watching mediocre late-night TV shows that (with the exception of Letterman) remain without their writers, when you can chortle at the superior comedy of lawyers behaving hilariously at The Billable Hour's newly launched Video Venue. (H/T to Monica Bay at the Common Scold.)  According to The Video Venue (TVV), the site features video clips by, for and about lawyers, law students and legal professionals, that "can and will make you laugh, in a court of law or elsewhere." The site already includes over a hundred videos on topics such as billing, ethics, work/life balance and law school. 

To encourage lawyers to submit videos, TVV is running a contest, through January 31, 2008, to find the Funniest Legal Video on the Web, with a $50 gift certificate for the The Billable Hour online store as the grand prize. 

Posted by Carolyn Elefant on January 3, 2008 at 10:17 AM | Permalink | Comments (0)


Saludos
Rodrigo González Fernández
DIPLOMADO EN RSE DE LA ONU
www.Consultajuridicachile.blogspot.com
www.lobbyingchile.blogspot.com
www.el-observatorio-politico.blogspot.com
Renato Sánchez 3586
teléfono: 5839786
e-mail rogofe47@mi.cl
Santiago-Chile
 
Soliciten nuestros cursos de capacitación   y asesorías a nivel internacional y están disponibles para OTEC Y OTIC en Chile

Thursday, January 03, 2008

The Liberal Skew in Higher Education--Posner

The Liberal Skew in Higher Education--Posner

It is no secret that professors at American colleges and universities are much more liberal on average than the American people as a whole. A recent paper by two sociology professors contains a useful history of scholarship on the issue and, more important, reports the results of the most careful survey yet conducted of the ideology of American academics. See Neal Gross and Solon Simmons, "The Social and Political Views of American Professors," Sept. 24, 2007, available at http://www.wjh.harvard.edu/~ngross/lounsbery_9-25.pdf (visited Dec. 29. 2007); and for a useful summary, with comments, including some by Larry Summers, see "The Liberal (and Moderating) Professoriate," Inside Higher Ed, Oct. 8, 2007, available at www.insidehighered.com/news/2007/10/08/politics (visited Dec. 29. 2007).) More than 1,400 full-time professors at a wide variety of institutions of higher education, including community colleges, responded to the survey, representing a 51 percent response rate; and analysis of non-responders indicates that the responders were not a biased sample of the professors surveyed.

In the sample as a whole, 44 percent of professors are liberal, 46 percent moderate or centrist, and only 9 percent conservative. (These are self-descriptions.) The corresponding figures for the American population as a whole, according to public opinion polls, are 18 percent, 49 percent, and 33 percent, suggesting that professors are on average more than twice as liberal, and only half as conservative, as the average American. There are interesting differences within the professoriat, however. The most liberal disciplines are the humanities and the social sciences; only 6 percent of the social-science professors and 15 percent of the humanities professors in the survey voted for Bush in 2004. In contrast, business, medicine and other health sciences, and engineering are much less liberal, and the natural sciences somewhat less so, but they are still more liberal than the nation as a whole; only 32 percent of the business professors voted for Bush--though 52 percent of the health-sciences professors did. In the entire sample, 78 percent voted for Kerry and only 20 percent for Bush.

Liberal-arts colleges and elite universities are even more liberal than other types of institution of higher education. In liberal-arts colleges, the percentages liberal, conservative, and moderate are 62 percent, 4 percent, and 35 percent, respectively; and in elite universities the figures are 44 percent, 4 percent, and 52 percent. Professors in the 26 to 35 year-old age range are less liberal and more moderate (though not more conservative) than older professors, which I attribute to those youngsters' having reached maturity after the collapse of communism. It is thus no surprise that only 1 percent of the young professors describe themselves as "left radicals" or "left activists," compared to 17 percent of those aged 50 or older.

The summary in the Gross-Simmons paper of the previous literature on professorial political leanings finds that, at least since the 1950s, American college and university faculties have been more liberal than the nation as a whole, but that the liberal skew is more extreme today than it was in the 1950s. This is my experience. Between 1955 and 1962 I was a student at Yale College in the humanities and then at the Harvard Law School, and neither the humanities faculty at Yale nor the Harvard Law School faculty was noticeably liberal (the former was actually rather conservative), and I mean by the standards of that era, not by today's standards. Today both institutions are notably liberal, though the present dean of the Harvard Law School has been attempting with considerable success to make her faculty politically more diverse. The Gross-Simmons study notes that the liberal skew is not limited to the United States, but is found in Canada, Britain, and much of Continental Europe, as well.

The survey results raise two questions: What is the explanation for the results? And what are the consequences? I address only the first question.

There is nothing mysterious about the fact that the members of a particular occupational group should have a different political profile from that of the population as a whole. A 1999 survey of U.S. military officers found that 64 percent were Republican, 8 percent Democratic, and 17 percent independent. In contrast, a 2002 study found that 40 percent of journalists are liberal and 25 percent conservative--a breakdown similar to but much less extreme than that of professors.

The conservatism of military officers is easy to understand--conservatives are much more favorable to the use of military force, and to the values of honor, personal courage, discipline, hardiness, and obedience, which are highly prized by the military, than liberals are. And the liberalism of journalists probably reflects the tastes of their readers; in my 2001 book Public Intellectuals: A Study of Decline, I found that the liberal-conservative split among public intellectuals (roughly 2 to 1) corresponded to the ratio of the circulation of liberal newspapers and magazines to the circulation of conservative ones.

It is tempting to conclude that the liberal bias of journalists and professors (especially in the humanities and social sciences) is the same phenomenon--the liberalism of the "intelligentsia," usefully defined by the Merriam-Webster Online Dictionary as "intellectuals who form an artistic, social, or political vanguard or elite." But that just pushes the question back one step: why should an intelligentsia be liberal? Because intellectuals are naturally critical of their society, which in the case of the United States is rather conservative, or at least not "liberal" as academic liberals understand the word? That is not a satisfactory explanation, because a society can be attacked from the Right just as easily as from the Left. Some of the most distinguished intellectuals of the twentieth century attacked social, cultural, political, or economic features of their societies from the Right--think of Martin Heidegger, William Butler Yeats, T. S. Eliot, Friedrich Hayek, and Milton Friedman. Today, in fields such as law, political theory, and economics, there is a vibrant conservative movment--the puzzle is why it is so distinctly a minority movement in the university world. Moreover, our college and university professors, especially those whose interests and background overlap most closely with those of the majority of journalists, appear to be markedly more liberal than journalists, the other major division of the intelligentsia.

One explanatory factor may be that colleges and universities select for people who are comfortable in a quasi-socialistic working environment. Virtually all colleges and universities in the United States are either public or nonprofit, there is usually salary compression within fields, tenure shields professors from the rigors of labor-market competition, and professorial compensation substitutes fringe benefits (such as tenure), leisure, and other nonpecuniary income for high salaries. The ablest academics generally have the highest opportunity costs--the brilliant chemist could get a high-paying job in the private sector, the brilliant law professor could make a lot of money as a practicing lawyer, and so forth--which suggests that the ablest academics attach especially great value to nonpecuniary relative to pecuniary income and hence are likely to feel especially alienated from a capitalist economy.

This may be one reason why elite universities are more liberal than nonelite ones. (The greater liberalism of liberal-arts colleges may just reflect the fact that such colleges employ fewer scientists and engineers, who are less liberal on average than professors in the humanities and the social sciences.) In addition, there is the curious but well-documented fact that Jews are far more liberal than their socio-economic standing would predict; they are also disproportionately found in the faculties of elite colleges and universities. Furthermore, conservatism is associated in many people's minds with religiosity, and faculty in nontechnical fields in elite universities are rarely religious. Catholics and evangelical Christians are underrepresented in such universities. Professors who are conservative in matters of economics, crime control, and national security but liberal with regard to social issues such as abortion rights, homosexual marriage, and separation of church and state would hesitate to describe themselves as conservatives, and many would not vote Republican.

Another factor that may explain the liberal skew in the academy is political discrimination. Academics pick their colleagues, so once a department or school is dominated by liberals, it may discriminate against conservatives and thus increase the percentage of liberals. There is a good deal of anecdotal evidence of such discrimination, but the best test (though hard to "grade" in soft fields) would be whether conservative academics are abler on average than liberal ones. If conservatives are disfavored, they need to be better than liberals to be hired. Political discrimination is less likely to be prevalent in fields in which there are objective performance criteria, which may be why there is a smaller preponderance of liberals in scientific and technical fields.

Related to discrimination is herd behavior, or conformism. Despite their formal commitment to open debate, academics, like other people, do not like to be criticized or otherwise challenged. The sciences, well aware of this tendency, have institutionalized practices, such as peer review, insistence that findings be replicated, and high standards of logical and empirical rigor, that are designed to foster healthy disagreement. These practices are much less common in the humanities and the soft social sciences.

One response to discrimination or herd behavior favoring liberals in academic has been the formation of conservative think tanks; if their professional staffs were added to college and university faculties, the liberal skew would be less extreme, though the difference would not be great.

A further point also related to both discrimination and conformity bias is that once a field acquires a political cast, it will tend henceforth to attract as graduate students and thus as future professors students who share its politics, as otherwise (as Louis Menand pointed out in a comment on the Gross-Simmons study) the students may have difficulty surviving graduate school, obtaining a good starting job, and finally obtaining tenure.

My last point is what might be called the institutionalization of liberal skew by virtue of affirmative action in college admissions. Affirmative action brings in its train political correctness, sensitivity training, multiculturalism, and other attitudes or practices that make a college an uncongenial environment for many conservatives.

For all these reasons, although the weakening of left extremism in college and university faculties can be expected to continue, the liberal skew is unlikely to disappear in the foreseeable future.

Posted by Richard Posner at 05:09 PM | Comments (32) | TrackBack (0)

Events, Field, and the Liberal Skew in Higher Education-Becker


The study by Gross and Simmons discussed by Posner in part confirms what has been found in earlier studies about the greater liberalism of American professors than of the American population as a whole. Their study goes further than previous ones by having an apparently representative sample of professors in all types of colleges and universities, and by giving nuanced and detailed information about attitudes and voting of professors by field of expertise, age, gender, type of college or university, and other useful characteristics. I will try to add to Posner's valuable discussion by concentrating on the effects on academic political attitudes of events in the world, and of their fields of specialization. I also consider whether college teachers have long-lasting influences on the views of their students.

As Posner indicates, the type of persons who go into different fields varies by the characteristics of the field, so that students who become sociologists tend to be more liberal, while those who enter accounting tend to be more conservative-see Table 8 of the Gross-Simmons study on political identification of professors by field. It is also true, however, that the nature of the material analyzed in a field affects the political identification of persons in that field. The late eminent economist George J. Stigler claimed in an article many years ago that the study of economics tends to make the student more conservative because economics emphasizes that the hidden longer run effects of many government policies have much more negative consequences than the initial direct effects. Economists also show how decentralized competitive markets contribute to the general welfare. Similarly, the study of sociology emphasizes the oppressive effects of certain social forces on particular groups, like the less educated and minorities, which influence the attitudes of sociologists toward the prevailing capitalist economic system.

Admittedly, it is difficult to see the connection between the political attitudes of professors in various other fields and the nature of these fields. For example, why do less than 4 percent of historian, according to Gross and Simmons, consider themselves Republicans, whereas 23 percent of nurses do? Perhaps one important factor is that teachers in practical fields, like engineering, nursing, and medicine, see the limitations of what can be accomplished by various types of interventions, whereas those in theoretical fields, like mathematics and literature, can dream of more utopian solutions. Still, the dichotomy between the theoretical and the practical has trouble explaining why a field like history has such liberal academics since many historians deal with various disasters brought about by government ventures.

The differences in political views by age are informative. Generally, younger men and women are more liberal than older ones since age brings experience with the limitations of what can be achieved by grandiose programs. This is captured in the old adage that goes something like "if you are not a socialist when young you have no heart, but if you remain one when you get older you have no brains". Yet Table 15 in Gross and Simmons shows that academics aged 26-35 are significantly less liberal than those aged 50 and older. I suggest that events of the past 30 years are a major reason for this age-reversal on liberal tendencies. The collapse of communism, the growth of the Asian tigers that have emphasized private enterprise and export-oriented policies, the rapid development of China and India after abandoning communism and socialism, respectively, all reduced the attractiveness of Marxist, socialist, and communist ideologies. These events had less effect on the views of older academics since their views were largely determined when older academics were young, but these events had a great influence on attitudes of younger academics since their beliefs were formed while these transforming events were occurring.

Even economists, traditionally more conservative than those in other social sciences, are now much more market oriented and less sympathetic to various forms of government intervention than they were when I was a student many years ago. During the interim, not only did communism, etc collapse, but Keynesian interventionist attitudes also lost favor, and many more studies have shown the harmful effects of different attempts at government interventions in labor and other markets. The retreat among economists from interventionist policies is found not only among American academic economists, but also among younger economists in Europe and Asia, and also to some extent in Latin America. The reason is that the same forces affected economists elsewhere as affected American academic economists. I suspect, but do not have the evidence, that younger academics in other countries are also decidedly less liberal than older ones in other fields as well.

Given the indisputable evidence that professors are liberal, how much influence does that have on the long run attitudes of college students? This is especially relevant since some of the most liberal academic disciplines, like the social sciences and English, have close contact with younger undergraduates. The evidence strongly indicates that whatever the short-term effects of college teachers on the opinions of their students, the long run influence appears to be modest. For example, college graduates, like the rest of the voting population, split their voting evenly between Bush and Kerry. The influence of high incomes (college graduates earn on average much more than others), the more conservative family backgrounds of the typical college student (but less conservative for students at elite colleges), and other life experiences far dominate the mainly forgotten influence of their college teachers.

This evidence does not mean that the liberal bias of professors is of no concern, but rather that professors are much less important in influencing opinions than they like to believe, or then is apparently believed by the many critics on the right of the liberality of professors.

Saludos
Rodrigo González Fernández
DIPLOMADO EN RSE DE LA ONU
www.Consultajuridicachile.blogspot.com
www.lobbyingchile.blogspot.com
www.el-observatorio-politico.blogspot.com
Renato Sánchez 3586
teléfono: 5839786
e-mail rogofe47@mi.cl
Santiago-Chile
 
Soliciten nuestros cursos de capacitación   y asesorías a nivel internacional y están disponibles para OTEC Y OTIC en Chile