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 to support and facilitate employee efforts to form or join labor a labor union. Though the bill has bipartisan support, it has provoked hot debate across party lines. Supporters generally feel that workers rightly demand heightened protection from anti-union coercion by employers; opponents conversely fear 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.”

Another day, another summer adventure! Before coming to HLS, 2L Michael Zabelin was a member of Americorps*VISTA, taught English in Ecuador, and was an intern at the Center for American Progress. In the fall he will begin working as a member of the Harvard Legal Aid Bureau.

“I found my summer internship with the Legal Assistance Foundation by taking advantage of the individual advising from the OPIA (Bernard Koteen Office of Public Interest Advising). In my meeting, Director Alexa Shabecoff suggested several options in the handful of geographic areas I was interested in spending the summer. Not only did Alexa provide names of organizations but also the names of HLS alumi and current students who had worked at these various places. After speaking with an alum who is currently working at LAF and a current student who had spent a summer there, I realized that LAF was going to be a great fit for me.’

“When preparing for my phone interview, I was pleasantly surprised to find out that the LAF supervisory attorney in charge of hiring interns was an HLS grad. This connection allowed us to have an easy start to the interview. He was especially impressed with my involvement with the Civil Rights-Civil Liberties Law Review of which he was an active member in his law school days.’

“Before coming to law school, I had done both a semester long internship and a year of Americorps*VISTA in the field of low-income housing. This experience led me toward the Home Ownership Preservation Project at LAF. We are a very busy project this summer as the bulk of our work is in mitigating the effects of foreclosure. From advising people of their rights when they are first foreclosed upon to bringing suit against fraudulent parties who cheated clients while claiming to be rescuing them from foreclosure, I am part of a team that is doing real work to make a difference for people who are being effected by this very real headline-grabbing problem. I leave work feeling good most days knowing that I was able to have at least a small part in making the system a little more fair for the people who have been left behind or treated unfairly in the past.’

“Aside from the interesting substance of the work that I am doing, I am also learning a great deal about the day-to-day life of a public interest lawyer. Everything from filing documents at the Daley Center Courthouse to scouring depositions for something useful to our case has become part of my lawyerly repertoire because of this summer. I’ve even caught myself applying things from first year Legal Research and Writing and Civil Procedure that, at the time I learned them, I was certain I never would actually need to know.’

“I look forward to bringing the skills I have gained this summer back to Cambridge in the fall. I am sure they will be helpful as I begin my first year as a member of the Harvard Legal Aid Bureau.’

I just noticed that the Bernard Koteen Office of Public Interest Advising has initiated a blog. This ought to be very useful for students considering careers in public service.

…Stephanie Robinson. You probably thought I was going to say Barack Obama. But there’s a more imminent election to replace Tavis Smiley as commentator on the Tom Joyner Morning Show. Stephanie is a lecturer here at Harvard Law School as well as an HLS alumna and the CEO of the Jamestown Project.

Thanks to Professor Ron Sullivan for the heads up on this!

(L-R) María Luisa Romero 3L, Tim Mayhle 3L, Professor James Cavallaro

María Luisa Romero: (19:09)

As her tenure at HLS begins to wind down, 3L María Luisa Romero stopped in to chat with staffer Julia Foresman about her human rights advocacy in Panamanian prisons. In the fall of her 2L year, as a student in Clinical Professor James Cavallaro’s Human Rights Advocacy seminar, María Luisa already had a project on Panama’s prisons in mind. She’d found there had been few international reports on the topic since Noriega’s ouster. During an independent clinical, met with prison system officials and members of the government, including the attorney general.

Last March, Cavallaro, Romero and two other students visited six prisons. María Luisa estimates these facilities hold more than 70 percent of Panama’s prisoners. During her research, she found, among many other abuses, flagrant corruption, overcrowding, and sanitation problems.

In Fall of 2007, María Luisa returned to Panama with Cavallaro returned to meet with other officials from the correctional system. The culmination of her efforts, which included the submission of a report to the U.N. Human Rights Committee, came a few weeks ago during a hearing before the Inter-American Commission on Human Rights.

To watch the recording of the hearing on March 7, 2008 before the Inter-American Commission on Human Rights, visit their website. The title of the hearing is “Human Rights Violations in Prisons in Panama.” Please note that the hearing is in Spanish.

Saw this on the home page and didn’t want you to miss it!

I noticed this give and take on recent Supreme Court cases on Slate and since two of the four participants are members of the HLS faculty, I thought you might be interested. Professor Jack Goldsmith is an expert on national security law and teaches constitutional law and other courses. Visiting Professor Walter Dellinger leads one of our Supreme Court Clinicals.

Visit this link for The Supreme Court Breakfast Table.

I get a biweekly e-mail from the Human Rights Program updating me on their latest activities. The most recent one discussed a report the Human Rights Clinic released on prosecutions of apartheid-era crimes in South Africa and HLS student participation in the negotiations to ban cluster munitions. I thought some people out there might like to be on the list, so I asked Mike Jones at HRP to fill me in. He responded:

“Students can sign up for it directly on our Web site…http://www.law.harvard.edu/programs/hrp. There’s a box on the left side under events where folks can enter their emails to sign up for our e-newsletter.”

Here’s some food for thought for all of you Law and Economics aficionados out there:

It was during a commencement speech here at Harvard exactly sixty years ago that Secretary of State George C. Marshall outlined his ambitious plan to rehabilitate and modernize the economies of Western European friends and allies in the wake of WWII atrocities. It is in much the same spirit that R. Glenn Hubbard, Dean of the Columbia Graduate Business School, spoke recently at HLS of a Marshall Plan for Africa “In 1960,” he began, “the average labor productivity in sub-Saharan Africa equaled Asia… there is no reason why the same scheme, based on economic reform, could not also jumpstart business and productivity in Africa.”

British Prime Minister, Gordon Brown first argued for the notion of extending the Marshall Plan to Africa in 2005. “Gordon’s plan focused on the social sector… it was essentially a bigger package of the same old stuff,” said Hubbard. Unlike Gordon’s plan, the original Marshall Plan emphasized the business sector and aimed to restore productivity to local businesses, circulate funds to rebuild commercial infrastructure, implement economic policies to restore the private sector, and distribute the funds evenly around Europe. “It offered something new…on the micro level,” said Hubbard, “There is a difference between the development of social services and the economic reform… charity is not economic development.”

The thrust of Hubbard’s argument is that a Marshall Plan for Africa would by and large replace NGOs with businesses to ignite the economic reforms that would in turn mitigate poverty and humanitarian crisis. “Business leaders have been conspicuously absent from African business talks, which is unfortunate,” Hubbard commented. “For this reason, I feel that business schools are cauldrons for the study of practices and management skills that work… Inventory that best practices in developed countries and import them.”

Hubbard admitted that his plan was not without its controversies, especially when several students questioned the differences of human capital and governance ability that existed in pre-war Europe and Africa and whether or not Africa’s social ills were going to be management problems in and of themselves. “This is your moral responsibility,” insisted Hubbard, “and the antecedent is resoundingly clear.”

Can’t get security clearance? Don’t bother applying for these jobs…

For those students interested in pursuing legal careers within the Government, a National Security Summer Jobs panel was held a few weeks ago by several 2Ls and 3Ls who had completed internships in New York, Washington, DC, and Virginia.

Erik Swabb kicked off the panel’s remarks. He interned with the Counterterrorism Section at DOJ. “Though unpaid, I was able to deal with substantive legal issues… and was given broad exposure to the National Security System.” Though a highly positive experience, Swabb was merely the first of most panelists to warn that feedback from agency attorneys can be difficult to obtain.

Megan Gaffney agreed and expanded upon Swabb’s account—she was also at DOJ but in the National Security Unit. “I also was dealt amazingly substantive work and really felt like I was contributing to the Division within my small group… but, the attorneys are indeed swamped with work.” Gaffney and Swabb insisted that interns be proactive in order to get the most out of their internships. “The attorneys, if nothing else, wanted me to be interested in my work,” said Gaffney.

Foremost of many students’ concerns was the need for security clearances. The panelists urged students interested in agency jobs to get the ball rolling early if for no other reason that to facilitate the start date of one’s job and to be able to participate in more highly classified assignment. As some of the earliest positions available to 1Ls, National Security internships will make offers this winter that are contingent upon successful completion of a security clearance.

Nervous? Don’t be. “The concern of passing a clearance for past drug usage or extensive travels abroad are not reasons enough not to apply,” said Daniel Adams, who interned at Defense in the Office of the General Counsel. “Be honest and up front, and they’ll be more forgiving than if you lie.”