Toby’s blog

For the last year, Congress has been considering the implementation of the Employee Free Choice Act, a bill that seeks to alter the National Labor Relations Act of 1935. The bill has provoked hot debate across party lines (and in the current presidential campaign). Supporters generally feel that workers need heightened protection from anti-union coercion by employers; opponents believe that the elimination of secret ballots in union election could lead to union-side coercion of employees and claim that the bill fails to protect employee privacy. Such was the atmosphere in which the American Constitution Society recently invited professionals on both sides of the issue to present their perspectives.

“We’ve gone almost six decades without a change in labor relations policy,” said labor relations expert, James Brudney, a visiting professor at HLS. “In that time, labor laws have become broken… and there is too much room for unlawful employer activity such as the termination of union supporters.” In making his case, Brudney pointed to the steady decline of the number of new union members nationwide. 7% of the labor force is unionized today, compared with seven times that number 45 years ago.

Still, as Joseph Ambash, a labor attorney with Greenberg Traurig argued, the plight of unions cannot be ascribed to employers alone. “It’s not that the laws are broken, it’s that the union business is broken,” he said. “Employees can’t be persuaded it’s worth it to join a union.” He furthered his point by positing that it is blatantly undemocratic for unions to require signature cards, which are used in a union organizing campaign to show support and justify a representation election. Employees who sign cards are stating they want a union election. “This act would deprive employees of their right to hear both sides of the story.”

Mac D’Alessandro of the Service Employees International Union commented: “Joe’s right; we can’t convince workers that unions are good for them because we can’t get access to them.” D’Alessandro framed his point in the larger context of workers under siege by reminding the panel that in addition to job security concerns, many workers continue to struggle while the salaries of employers have grown exponentially over time. “The Employee Free Choice Act levels the playing field for employees in a non-coercive environment.”

Yet for labor attorney Robert Morsilli of Jackson Lewis LLP, the devil is in the details in the Act. “One of the damning features of the Employee Free Choice Act is that after 120 days, the parties in an employment contract lose control of the bargaining when the decision goes to binding arbitration, which rarely works out well.” Given the posturing of negotiators, he suggested, there is hardly ever an appropriate one-size-fits-all contract. “When you get down to it, what’s this law really about? It’s about circumventing an employer’s ability to communicate with his or her employees about union matters.”

Interested in Sports and Entertainment Law? Care to find out how to pursue it? Clinical Professor Peter Carfagna is your man. In addition to his post here at HLS, he counsels clients in the areas of litigation, government relations, and complex business transactions. He also served as General Counsel of IMG for over ten years. This spring, he’s teaching Sports and Law: Representing the Professional Athlete. We caught up with Professor Carfagna recently to get learn more about the Sports Law Clinic.

What is the Sports Law Clinic here at HLS?

The Sports Law Clinic at HLS selects students who have taken either the beginning or intermediate Sports Law courses I offer and places them into “real life” sport law settings where they can experience the day-to-day challenges that sports lawyers face. In particular, this year’s placements included the following: The Boston Celtics and the Boston Red Sox; the Cleveland Browns and the Chicago Bears; the Skadden Arps and Shearman & Sterling law firms where sports lawyers at those firms supervise the externs’ assignments; the IMG Legal Department, which I used to supervise for 10+ years as Chief Legal Officer; the Seattle Mariners Legal Department; the Major League Baseball New York headquarters Legal Department; and other placements in sports law firms and legal departments.

The goal of the externship placement is to allow the HLS student to springboard from his/her Sports Law classes at HLS into a real life experience where his/her knowledge of sports law will make the student an immediate asset to the practitioners whose projects I also supervise while acting as a Visiting Lecturer at HLS.

What kinds of work are students responsible for and what projects have you done?

The project primarily includes contract drafting, legal research and memoranda writing; interaction with the supervising attorney and his clients, as well as assistance in handling episodic legal issues that arise in the areas of contract law, intellectual property law, antitrust law, and general corporate/commercial negotiations and pre-litigation settings.

You often hear how difficult it is for students interested in Sports and Entertainment Law to break through into the industry. How true is this and what advice would you give to any student facing this challenge?

The best way to break into the sports law industry is to be placed as an HLS clinical extern/intern! Seriously, the best way to earn a permanent position is to work for a sports law department or a law firm that practices sports law, and to do an outstanding job. Hopefully, after the intern satisfies his supervisors that he can be a “value add” to the sports law work that is already being done by the Legal Department for the law firm, a permanent offer will be made – if not upon graduation, then perhaps later on in the student intern’s legal career.

What do you think is the most unique aspect of the Sports Law Clinic and why?

The most unique aspect is that success in a Sports Law clinical experience requires a combination of background knowledge in a variety of legal disciplines. As described above, it includes the ability to prepare first drafts of various types of sponsorship and customer-related contracts and other legal documents. In particular, the precision required for contract drafting in the sports law area is emphasized at HLS for this very reason, so that the students can “hit the ground running” when asked to prepare a first-draft of a sponsorship agreement, for example, at the beginning of the student’s internship experience.

I just got a brand-new e-mail newsletter in my inbox from the Harvard Negotiation & Mediation Clinical Program. Here’s a screen shot:

If you want to sign up for this newsletter, send an e-mail to  hnmcp at law.harvard.edu.

Professor Bob Bordone recently returned to speak with us about the Harvard Negotiation and Mediation Clinical Program, of which is Director.

The Harvard Negotiation and Mediation Clinical Program (HNMCP) provides HLS students with practical, real-world experience in the fields of negotiation, dispute resolution, and conflict management, with a particular focus on conflict mapping and dispute systems design. Students in the program are paired with outside organizations, institutions, or individuals who provide projects related to negotiation, dispute resolution, or conflict management.

Bob Bordone: 8:29

When Dean Kagan gave her State of the School address a couple of months ago, she alluded to several pilot programs taking hold at HLS. One such initiative was the Program on Terrorism and the Law, which was officially launched with last week’s panel discussion that brought together some of the nation’s leading authorities on terrorism, including: Congresswoman, Jane Harman HLS ’69; National Counterterrorism Center Director, Michael Leiter HLS ’00; Professor Jack Goldsmith; and Professor Phil Heymann.

“I think this program will be useful for Harvard on both an intellectual framework level and on a practical level,” said Congresswoman Harman. When Professor Minow posed the question of what Congress should be doing now to address terrorism, the entire panel expressed the need for a Congress to define and outline a new framework for identifying and lawfully prosecuting terrorists. “For one thing, Congress needs to get serious, stop the partisanship and blame game on the war… and stop dealing with this problem on an ad hoc basis.” Professor Heymann agreed. “Addressing terrorism requires that we decently, not 100%, secure America. We must strive to preserve tolerance and freedoms, and we must also preserve our alliances.”

Further, Heymann explained that since the government will not be able to stop all serious attacks in the decades to come, it must strive to reduce the enthusiasm of hostile parties to attack the U.S. “There’s no question that is a mistake to push this issue off until the next election,” Leiter added, “The gap right now really is less on the intelligence side and more on the policy side… we need to focus on the long struggle versus the war at hand, and it’s always hard to get adequate funding for long-term foreign service issues.” For his part, Professor Goldsmith focused on what he felt should be an immediate goal of Congress to address the military detention of terrorists. “As a product of this Administration’s unilateralism, there is no legitimate system for detaining them… I hope Mukasey will make this his issue,” he said, “But before the next election, I believe we will have a detention policy.”

In response to the growing concern over the Administration’s consolidation of power, Harman adamantly asserted that Congress must reinsert itself in policy drafting. “This executive has chosen to play the fear card which makes it easy for people to throw up their hands… terrorism is a tactic, not an enemy,” she said, “Congress has abdicated its duty to legislate.”

Recently, the Program on Negotiation hosted social psychology professor, Lee Ross, in a discussion on naïve realism as a barrier to dispute resolution. Traditionally understood as a ‘common-sense’ way of understanding human perception on an individual level, naïve realism has been interpreted by Professor Ross as a bias of human inference. He has applied this theory to explain the difficulty in resolving the Arab-Israeli conflict and with his own participation in the public peace process of Northern Ireland. “Naive realism not only gives rise to social misunderstanding and conflict, it also create barriers to successful negotiation and dispute resolution,” he said.

“Essentially, we can’t divorce ourselves from our own take on reality,” explained Ross. By way of introducing naïve realism, Ross posed three ‘dangerous’ convictions, in the first-person, that serve as the cornerstones of the theory. First, “I see others as they are, objectively and free from distortion”; second, “Other fair-minded people share my views provided they have the same facts as I”; third, “If others do not share my views, they have not been given all the facts, or they’re too lazy or simplistic, or they’re biased by their own self convictions.” These tenets apply to the perceptions and feelings that shape the experiences that underlie one’s understanding of universal truths. “At any moment,” said Ross, “you believe your understanding is the best, most complete understanding there is.”

To illustrate the implications of naïve realism, Ross presented the findings of research that suggested that people expect their peers to be less objective and more self-serving than they are in matters of self-interest. For instance, Stanford undergraduates, when asked to complete a survey about their positions on national issues and the merits of figures ranging from Hillary Clinton to Dick Cheney and then compare the degree of similarity of their responses to those of other students, the results reflected that students thought their own attitudes reflected normative considerations to a greater degree than their peers. “There is essentially a linear relationship here among those who identify their opinions and the opinions of those who agree with them as rationally correct,” said Ross.

In addition to objective biases, judgmental overconfidence plays a large role in naïve realism. “People are wildly overconfident in general about their estimates,” explained Ross. Other factors that influence naïve realism are undue optimism about one’s ability to persuade, and perceptions of media and mediator bias. Ross called President Bush a naïve realist, pointing to a time where he convened an unsuccessful meeting of multi-generational political dignitaries that included Madeleine Albright and Robert McNamara, all of whom opposed his Iraq policy, to persuade them of his view on the issue.

For anyone interested in studying and pursuing human rights and humanitarian law at HLS, opportunities are fast on the rise, according to a recent alumna. “When I was a student here, there weren’t many ways to get involved in human rights law,” said guest speaker Naz Modirzedah, HLS ‘02, who manages the International Humanitarian Law and Middle East portfolios as a Senior Associate at the Program on Humanitarian Policy and Conflict Research (HPCR). Now, with the creation and expansion of the Harvard Human Rights Clinical Program, the growth of internship networks through the Office of Public Interest Advising and student organizations like Advocates for Human Rights, students have access to a wealth of resources.

Created in 2000 as a joint project of the Harvard School of Public Health, the Swiss government, and the Office of the UN Secretariat, HPCR has worked to broaden its scope from its initial commitment to international humanitarian law to human security and conflict management.

Modirzedah, who previously worked for Human Rights Watch, and later served as Assistant Professor and Director of the International Human Rights Law MA Program at the American University in Cairo, has sought to bridge academic debate with policy implementation. “Our job is to figure out which compelling debates to pursue and what issues pose the greatest challenges to humanitarian law… when we write a policy brief, we’re thinking about how it should be addressed at the senior decision-making level.”

When asked about the schism that has traditionally existed between humanitarian relief organizations and conflict resolution involving human rights, Modirzadeh indicated that there has been increasing overlap between the fields. “Regardless of where you want to end up ultimately, if you open yourself to jobs and internships with Oxfam or C.A.R.E., your opportunities will be greater, especially in those places where it’s just hard to find human rights work,” she said.

Further, on the question of whether to specialize in a certain region, Modirzadeh urged students to send a clear narrative in their cover letters. “My sense on the hiring side is that you want to be able to package yourself in different ways if not regionally then thematically.” With regard to internships, Modirzedah drew from her own experience to suggest that students have a clear idea of what they want to gain from any experience, whether it be a full summer internship abroad, a paid research assistantship, or pro-bono volunteer work.

“Lots of these organizations have never had interns before or have limited experience with them, so guide them…be modest and arrogant; modest by knowing you might be a risk to the organization, but arrogant in your right to have expectations.” In addition, Modirzedah believes that producing some form of written work while interning is a huge asset to any student looking to market his/her knowledge to different organizations. “You can also think of your coursework, such as a clinical, as pitches to employers of your research background… many times, these are just as good as consultancies, and can make for very fluid transitions to your professional life,” she added.

Finally, HPCR provides HLS students with a unique opportunity to work in-depth on international humanitarian law projects that they would not otherwise have exposure to. “IHL is a growing field,” concluded Modirzedah, “and it’s powerful to help developing countries map out solutions to complicated issues.”

A few days ago, the Program on Negotiation (PON) and the Harvard Negotiation Law Review (HNLR) co-sponsored “Deal-Making and Strategic Negotiation,” a day-long symposium featuring attorneys and scholars discussing corporate governance issues, negotiation techniques, and consequences arising from several major deals. As you may know, Harvard’s Program on Negotiation is an interdisciplinary institute joining together scholars, students, and practitioners from law, business, sociology, government, and a host of other areas across the university and beyond. The HNLR is a student-run journal linked with the PON.

One of the student organizers of the symposium sent me a recap after the event:

“Considering that much of the 1L curriculum focuses on litigation, the Harvard Negotiation Law Review’s symposium was a great opportunity to learn more about the (majority of) lawyers who don’t do their work in the courtroom. The symposium focused on two recent blockbuster business deals; Oracle’s hostile takeover of PeopleSoft and the initial public offering of MasterCard stock. Unlike the typical law school symposium, the program featured two business-school style cases, including one written by superstar negotiation professor Guhan Subramanian, who was amazing in helping the HNLR organize the event.

“Leading experts from across the country also participated in the debate, including University of Colorado Professor Scott Peppett (HLS ’96), a founding member of the HNLR, and David Millstone (HLS ’05), who collaborated with Prof. Subramanian on his case as a part of his 3L paper. The presentations from the experts were all very interesting, although, it was a bit disconcerting to see my Contracts professor, John Coates, mercilessly mocking a few large law firms for their ‘incompetence’ in handling the Oracle-PeopleSoft matter; especially since the legal tab for both sides ended up totaling $100,000,000!

“Afterwards, we celebrated the success of the symposium with a wine and dessert reception, where Prof. Peppet gave us some ‘unsolicited advice’ about the future of the journal, while marveling that it was still around 11 years later. Of course, we can’t celebrate too much; next year HNLR is publishing two issues for the first time, and we’ll need the spend the summer getting the working papers from Wednesday’s symposium into shape for a new slate of 1L editors in the fall.”

“Most of the best negotiators do little in the way of arguing, and they do a lot of listening,” says Bob Bordone, lecturer on law and deputy director of the Harvard Negotiation Research Project. The Project trains students to resolve disputes in ways that are efficient, and offers fantastic career results and fulfilling skills, not to mention a class that’s a lot of fun. “We think very carefully about the pedagogy. We use video a lot, we bring in outside people…it’s not just lecture,” says Bordone.

The size and strength of the program ensures a wide range of opportunities for students interested in learning more about negotiation. “The field really got its start here at the Law School,” says Bordone. “Our program focuses on people thinking outside of the box and being creative.”

Podcast: Harvard Negotiation Research Project (12:20)