Learn more about Peltz-Steele v. UMass Faculty Federation at Court Listener and the Liberty Justice Center. Please direct media inquiries to Kristen Williamson.
Showing posts with label Atlantic. Show all posts
Showing posts with label Atlantic. Show all posts

Tuesday, February 1, 2022

As America, France share Enlightenment roots, why have worker rights so diverged? Or have they?

Thomas D. Aaron Wazlavek, Esq. has published an article in comparative labor law: The Pond Separates Cultures but Not Values: A Comparative Look at the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment.  The article appears in the Florida Journal of International Law at the University of Florida Levin College of Law.  Here is the abstract:

The differences and similarities between the United States common law concept of “right to work” and the modern development in France of the right to withdraw labor following the “Yellow Vest” movement in 2018 demonstrate a parallel diminution of workers’ rights. These changes are motivated by the same values inherent within capitalism that are superimposed through the law. This Article analyzes the social and legal contexts in both countries that demonstrate that the superimposition of these values through law is a continuing modern western trend. The key difference is that while the French model is designed to decrease the pressure for strike actions by workers, it also serves as a protection to workers as compared with the American model which exists as a tool to remove workplace protections by substantially altering the terms and conditions of employment. Further, this Article demonstrates that these concepts are both divergent and convergent in terms of core shared values and the peripheral aspect of laws setting cultural norms. This Article then concludes through comparative analysis that while the French right to withdraw labor is a product of legislative supremacy, and the American view within the common law is that at-will employment is the standard, the French model is a product of generations of social negotiations. The American model is a product of the easily swayed influences within the common law that allow a new legal theory with little to no precedential value at the time of its proposal to be adopted in sweeping fashion with very little civil discourse.

An attorney living and working in Rhode Island, Wazlavek (blog, LinkedIn, Twitter) presently serves as a contract coordinator for Teamsters Local 251.  It's not uncommon to see him on a Rhode Island street corner alongside sign-wielding workers.  He had already a wealth of experience in the labor movement before he went to law school.  He taught me a great deal about organized labor—its value when it works the way it's supposed to—and I was able to contribute torts and comparatism to his impressive repertoire.

The Pond started as a paper in Comparative Law, co-taught by an embedded librarian, the esteemed Dean Peltz-Steele, and me and tracks one of many remarkable parallels in the cultural evolution of the United States and the French Republic.  Just yesterday I read Rachel Donadio's fascinating treatment of secularism, or laïcité, in The Atlantic.  Observing the shared roots of the French principle with American anti-establishment doctrine, Donadio observed:

The histories of few countries are as deeply intertwined as those of France and the United States. Both nations are products of the Enlightenment, and each sees itself as a beacon among nations. Both embody a clear separation of Church and state. In the United States, the separation is defined by the establishment clause of the First Amendment, which prohibits the government from making any law "respecting an establishment of religion" or obstructing the free exercise of religion. The First Amendment was inspired by the earlier Virginia Statute of Religious Freedom, adopted in 1786, the work of Thomas Jefferson. Jefferson was ambassador to France when the French Revolution began, and the Marquis de Lafayette consulted him when drafting the revolutionary Declaration of the Rights of Man and Citizen, passed in 1789. Article 10 of that document states, "No one may be disquieted for his opinions, even religious ones, provided that their manifestation does not trouble the public order."

A shared legacy on labor regulation might not be traced so easily to the 18th century, but I would contend that American and French thinking about work and life is plenty in common.  Wazlavek maps that common cultural territory, and the article examines the social and economic forces that have prompted divergence, largely to the hazard of the American worker, and yet some recent convergence that prompted the Yellow Vest movement.

The article is Thomas D. Aaron Wazlavek, The Pond Separates Cultures But Not Values: A Comparative Look at the French Codification of Right to Withdrawal of Labor and the American Concept of At-Will Employment, 33 Fla. J. Int'l L. 75 (2021).

[UPDATE, Feb. 3, 2022:] Only two days after posting this item, I happened upon this compelling article as well: Stéphanie Hennette-Vauchez, Religious Neutrality, Laïcité and Colorblindness: A Comparative Analysis, 42 Cardozo L. Rev. 539 (2021).

Friday, December 31, 2021

Atlantic's Applebaum adds to reminscences of academic, editorial freedom; mob justice rules now

In an article in the October Atlantic, Anne Applebaum examined the potentially devastating effect of cancel culture on academic and editorial freedom.

With her usual incisive writing, Applebaum compared contemporary cancellation with the summary imposition of the scarlet letter on Hester Prynne and described how today's mob justice is dangerously empowered by social media.

What's missing from Applebaum's tale is recognition that the threat to academic freedom is not new.  Workplace mobbing has been studied since the 1980s ("ganging up"), and, as I have written before, sociologist Kenneth Westhues wrote about the threat to academic freedom in a 2004 book. I know of what I speak (2005-10, 2017-19).

The following lines struck me as most salient in Applebaum's analysis.

A journalist told me that when he was summarily fired, his acquaintances sorted themselves into three groups.  First, the "heroes," very small in number, who "insist on due process before damaging another person's life and who stick by their friends." Second, the "villains," who think you should "immediately lose your livelihood as soon as the allegation is made." .... But the majority were in the third category: "good but useless.  They don't necessarily think the worst of you, and they would like you to get due process, but, you know, they haven't looked into it."

This observation is spot on.  My heroes once were two in number, another time zero.  One of my heroes paid a price for his chronic condition of character.  Villains are rewarded by employers.  But I respect honest villains more than I respect the "good but useless," who are the vast majority of academic colleagues, for their hypocrisy is galling.  That this group is the majority is precisely what makes "ganging up," or "mobbing," possible; the villains, otherwise, are too few in number to get away with it.  Especially in legal education, I have been horrified repeatedly by the selfish indifference to wrongs in their midst borne by people who hold themselves out as champions of civil rights.

Sometimes advocates of the new mob justice claim that these are minor punishments, that the loss of a job is not serious, that people should be able to accept their situation and move on.

Indeed, in my experience, I vividly remember one colleague acknowledging the wrongfulness of the persecution, but advising that I "just wait five years" for people to forget the false allegations.  Never mind the opportunity cost to career, nor providing for my family in the interim, nor the uncertainty that five years would be enough, nor the inference of guilt that would derive from acquiescence.

"I wake up every morning afraid to teach," one academic told me: The university campus that he once loved has become a hazardous jungle, full of traps.

Check.  My classroom students are both my greatest motivation and my greatest fear.  I think of both every single time a class is about to begin.  It is a difficult and stressful dissonance to manage. 

[T]he protagonists of most of these stories tend to be successful....  They were professors who liked to chat or drink with their students, ... people who blurred the lines between social life and institutional life....  [Yale Law Professor Amy Chua:] "I do extra work; I get to know them," she told me. "I write extra-good recommendations." ....

It's not just the hyper-social and the flirtatious who have found themselves victims of the New Puritanism....  Others are high achievers, who in turn set high standards for their colleagues or students.  When those standards are not met, these people say so, and that doesn't go over well.  Some of them like to push boundaries, especially intellectual boundaries, or to question orthodoxies.

First, yes.  Westhues long ago identified jealousy, revenge, and schadenfreude as mob motivators.  Hard work and success make one a target.  Second, also yes.  To be fair, early in my academic career, work probably was too much my life: too much overlap between co-workers and social life.  In my defense, that's not unusual for an ambitious young person, especially after relocating to a new city for a new career.  

I've been disabused of that ethic.  Co-workers willing to sacrifice you to save or glorify themselves are not your friends.  Workplaces and schools design social events with the intent to mislead, imbuing senses of belonging and community that only serve the master's interests.  At today's university, students and faculty rather should be forewarned explicitly that if they find themselves on the wrong side of the groupthink, they will be devoured by the mob.

Workplaces once considered demanding are now described as toxic.  The sort of open criticism, voiced in front of other people, that was once normal in newsrooms and academic seminars is now as unacceptable as chewing gum with your mouth open.

Just so.  The kind of hard-nosed, openly aired editorial critique that was a staple of my education as a journalism student, and which conditioned me to take heat and to be stronger for it, I wouldn't dare administer in today's classroom.  Some of my law students understand the new game and read between the lines, and they'll be OK.  Some will be shocked the first time they are across the table from an adversary or in front of a judge who wasn't schooled to coddle.

Students and professors ... all are aware of the kind of society they now inhabit.  That's why they censor themselves, why they steer clear of certain topics, why they avoid discussing anything too sensitive for fear of being mobbed or ostracized or fired without due process.

True.  I have resisted modestly on this front, refusing to purge sensitive content from class materials.  But I do prioritize-down the sensitive, choose materials strategically, and exert tighter control of student discussion.  As usual, this decades-old practice in the academic trenches became a point of public concern only when Yale and Harvard professors started talking about it, as if they discovered the problem. 

If nothing is done, Applebaum concluded,

[u]niversities will no longer be dedicated to the creation and dissemination of knowledge but to the promotion of student comfort and the avoidance of social media attacks.

"[W]ill"?

The article is Anne Applebaum, The New Puritans, The Atlantic, Oct. 2021, at 60.

Friday, October 9, 2020

Could 'inverse' First Amendment save us from ourselves?

Journalism professor Stephen Bates, J.D., University of Nevada Las Vegas, has published a fascinating article in The Atlantic on "the inverted First Amendment," as envisioned by philosopher William Ernest Hocking (1873-1966) in the 1940s.

Hocking on National
Educational Television
As Bates explains, Hocking posited that a correct interpretation of the First Amendment command, "Congress shall make no law ... abridging the freedom of speech," incorporates the command that, sometimes, Congress must make laws that further the freedom of speech.

Post-war America was beset with the perception that mass media were out of control, contributing, as Bates describes, to "polarization, echo chambers, and provocateurs."  That's a good reminder for our times that since the Spanish-American War and subsequent, in part consequent, invention of modern journalism, it's never quite been the idyllic institution of our imaginations.  Hocking contributed a key study to the work of the U.S. Commission on Freedom of the Press, on which he served.

The commission, otherwise known as the Hutchins Commission after chair and University of Chicago President Robert Hutchins, produced a landmark 1947 report.  Concluding that the press is a vital institution in American democracy, the Hutchins Report could have been read as justification for government regulation in furtherance of social responsibility.  The report was read to bolster the controversial development of journalism professionalization and ethics codes.

Hocking's inverse, or positive, First Amendment would have compelled the government affirmatively to protect free speech and even to promote journalism.  This model of positive speech regulation is not unknown in American media law.  In the broadcast medium, because it was not afforded full First Amendment protection, the dubiously constitutional fairness doctrine was instigated by the Hutchins Commission.  In the same vein and medium, we still have, however increasingly irrelevant it is, the equal time rule.  There is some debate over whether there is not some minimal positive requirement in the First Amendment penumbra.  For example, due process in the Fifth and Fourteenth Amendments may be read to require that a court respond to a complainant's filing—a petition for redress of grievance—if only to dismiss it.

A positive First Amendment could have been the basis for a constitutional right of freedom of information, or access to information, in lieu of the later enacted and oft beleaguered Freedom of Information Act of 1967.  Some states and many countries, not to mention international human rights systems, declare a constitutional or human right of access to information, which may require government transparency and even the affirmative publication of information.

Pres. Roosevelt
proposes a Second
Bill of Rights in
January 1944.

More broadly, the notion of positive civil rights, as opposed to the mostly negative commands of the U.S. Bill of Rights, animates constitutional law in many other countries, especially in association with what are sometimes called "second" and "third generation," or "red" and "green" rights, guaranteeing socioeconomic interests, such as employment, food, housing, and a safe environment, as opposed to "first generation," "blue" rights of a political nature.  ("Generations" models of human rights have been criticized fairly as inadequate, if not patronizing, to describe socio-legal development, but the model is still usefully descriptive in some contexts.)  In fact, some positive, "second generation" rights would have been enshrined in U.S. law, had President Franklin Roosevelt's "Second Bill of Rights" gained traction.  The famously expansive constitution of South Africa well models the codification of socioeconomic rights, while the experience of the courts and the people of South Africa speaks simultaneously to the challenges of making the model work, and the arguable perils of constitutionalizing aspiration.

Prof. Bates
An inverted First Amendment could empower the government to combat misinformation, or "fake news," today in ways that the First Amendment as presently understood forbids.  However, Bates recognizes, such a positive First Amendment would have a dark side to contend with.  A strong interpretation of a positive First Amendment could justify government regulation that would suppress speech in the interest of furthering other speech, just as the fairness doctrine was said to have done.  Critiquing contemporary calls to regulate the internet, Paul Matzko for the libertarian Cato Institute wrote in 2019:

In one of her early newsletters, Ayn Rand excoriated the public interest standard as an excuse covering “the right of some men (those who, by some undefined criterion, are the public) to sacrifice the interests of other men (of those who, for unspecified reasons are not the public)” [1962].

Rand’s words were meant particularly for FCC Chairman Newton Minow, who, in what may be the only famous speech by an FCC commissioner, had described television as a “vast wasteland” and called for limits on the number of game shows, Westerns, and cartoons aired....

.... The more serious danger was the routine weaponization of the public interest standard to advance private or partisan interests. For example, during the early 1940s, the Roosevelt administration pushed for a ban on newspaper ownership of radio stations, ostensibly because of the public’s interest in preventing cross-media consolidation, but also to prevent anti-New Deal newspaper owners from having a radio platform from which to criticize the President’s policies. The FCC during Richard Nixon’s administration would use a similar rule to try and pressure the Washington Post into abandoning its investigation of the Watergate scandal. 

Sometimes the government does, itself, get into the business of journalism.  Yet recent rancor between President Trump and the Voice of America over what the President seems to perceive as partisan disloyalty shows that VOA's very credibility throughout the world depends on its statutorily mandated editorial independence.

The line between government action to protect a negative First Amendment, such as an artistic-value savings provision in indecency law, and government regulation to further a positive First Amendment, such as leveling the free speech marketplace with a must-publish or must-censor rule, is much finer in practice than in theory.  As Bates observes, "Hocking was a philosopher, not a lawyer."

The article is Stephen Bates, The Man Who Wanted to Save the First Amendment by Inverting It, The Atlantic, Oct. 7, 2020.

Friday, April 24, 2020

Report from a Social Distance Week 5: A Birthday, a Flood, and a Fire


April snow (RJ Peltz-Steele CC BY-SA 4.0)
My plan-B return to Africa in June was just canceled.  I kind of expected that.  Here in New England, it remains unseasonably chilly, lows this week at the freezing point, and highs usually in the low 50sºF, 12ºC give or take, and a mean wind chill.  One morning even brought a light snow.  The long-range forecast shows no warming for the remainder of the month.  We’re getting deeply anxious for the transition to spring, even as the names of the days have become arbitrary.  At least in this week 5 of isolation, we had occasion to celebrate a calendared milestone, my wife’s birthday.


What I’m Celebrating…
It was a Quarantine Birthday!

For my wife, I made a birthday cake!: a classic pound cake with hazelnut buttercream frosting.  I won no points on aesthetics, but the sweet taste was spot on.  I also made our dinner of vegetable pasta with mozzarella garlic bread, heavy on the garlic.  We had my wife’s favorite wine, Gazela vinho verde (she’s a cheap date).  And from her Amazon WishList, she received some admittedly non-essential but long desired Yuxier BBQ gloves (Spider-Man-style, but not really, because a Chinese maker wouldn’t dare test trademark).  Our daughter sent our favorite flavored honeys from the Savannah Bee Company, and there were lots of lovely cards: thanks, family and friends.

What I’m Reading
The Atlantic (May 2020).  The latest issue of my favorite magazine, The Atlantic, hit my doorstep this week, and I’ve never been happier to see it.  This month has the usual plenty of enthralling content, from an assessment of the fractured right in American politics (Robert P. Saldin and Steven M. Telles), to a photo study of social distance (Amy Weiss-Meyer), to an exploration of the everlasting allure of Scooby Doo (Christopher Orr)—this year’s May movie Scoob! will skip theaters.  Most-interesting-item honors go to MacDowell Colony fellow Francesca Mari’s “The Shark and the Shrimpers” for breaking down the legal system’s obscene exploitation of the BP disaster with faked compensation claimants.  The conduct of key plaintiff’s lawyer Mikal Watts, acquitted, I found frighteningly reminiscent of Ecuador v. Chevron's fallen star, Steven Donziger.  According to Mari, Watts even commissioned a documentary about himself; cf. Donziger’s PR panache.  Somehow, despite the well reasoned fury of U.S. District Judge Lewis Kaplan, Donziger last week wrangled the validation of 30 Nobel laureates.  That’s more Bizarro than the “liberate” tweets.

🙏 Our ongoing Bible reading has proceeded from First to Second Kings, and we’ve begun a Sunday Zoom study of my favorite book, James.  If you feel in need, or wish to support others, in these strange times, you are welcome to visit our church’s new virtual prayer wall, as well as Sunday service at 0930 US EDT.

What I’m Listening To

Floodlines (2020).  This eight-part audio series by Vann R. Newkirk II represents a first foray into podcasting for The Atlantic.  It’s a fascinating deep dive into the Hurricane Katrina disaster, exploring all angles, especially race and socioeconomic implications.  Newkirk skillfully weaves a narrative that traces New Orleans history from its roots in slavery to its contemporary demography.  A lot of what’s here wasn’t new to me, because, for work, I’ve done a more-than-normal amount of reading about Katrina, and I'm personally familiar with NOLA.  (The audio pacing is slow, and you can nudge up the speed if you use an intermediary such as Google rather than streaming from the home page.)  There’s still plenty here, though, for anyone, and maybe a lot for some: Katrina was 15 years ago, so young adults might not even remember it.  For my part, I had never heard of the case of Ivor van Heerden, who lost his academic post at LSU Baton Rouge in suspicious subsequence to his criticism of the Army Corps levees.  That one nugget from Floodlines part 3 sent me down a depressing rabbit-hole-reading of van Heerden’s ultimately unsuccessful litigation.  Academics, even with tenure, almost always lose to judges’ sycophantic deference to university bureaucrats, while a 2011 AAUP report had no trouble seeing through LSU’s pretext.  FIRE wrote about the importance of the van Heerden case just this week.

What I’m Watching

Code 8 (2019).  Eh.  It killed a couple of hours.  Did you know that Stephen Amell (Arrow) and Robbie Amell (The Tomorrow People) are first cousins?

For All Mankind s1 (2019).  A pandemic gift on free Apple TV+, I’m loving this series.  It’s not what I expected, and I don’t want to give away too much.  The premise of the show is an alternate history in which the Soviets won the moon race; that much was in the trailers.  Unexpected was the clever imagining of an alternatively unfolding history of American civil rights as a consequence of that pivotal national shame.  The title of the show turns out to have much greater significance than a fleeting reference to the Lunar Plaque or an innocent homage to Neil Armstrong’s famed phrase.  Joel Kinnaman returns to earth from Altered Carbon s1 to deliver a credible old-school astronaut struggling to find his place in a changing NASA, while Sonya Walger, as America’s top female astronaut, shines among an extraordinary cast of leading women.

KN Aloysh (Apr. 19).  My friend Komlan Aloysh launched his YouTube channel of interviews with African changemakers by sitting down to Zoom with Rhode Island-residing, Liberian tech entrepreneur Jacob Roland, founder and CEO of West Africa-serving Pygmy Technologies.  Their wide-ranging conversation reached from the transnational tech sector to Liberian food and culture.  Roland well observed, in whatever area one might wish to create, the Liberian market is ripe and ready.  And he tipped viewers off to top unspoilt beaches in Liberia, though I suggest you get there before Chinese developers do.  The show made me conscious of how much I am missing West Africa just now.

What I’m Eating

Bluewater Bar + Grill. This week's self-sacrifice (sarcasm) to #Save­Our­Restaurants went to a local institution and its generous and hard-working staff.  Our bounty included R.I. calamari, battered cauliflower, chili broccoli, burgers and truffle fries, and the pièce de résistance, cinnamon beignets worthy of their Louisiana heritage.

Bread machine.  “While you're watching Ozark and baking bread ... ,” Trevor Noah began a bit this week.  He had my number.  Ozark s3 is on the to-do list, and already I had dragged the bread machine up from the basement.  My aim was to save from waste the remaining brine from a finished jar of pickles.  For reasons unknown, my pickle-juice bread didn’t rise properly.  I got over the initial disappointment.  Though it was dense and a touch chewy, my undersized loaf was delicious, and I ate it up in the course of the week.

What I’m Drinking

New Orleans Blend.  My wife doesn’t usually care for dark roasts, but even she fell for this offering from Community Coffee.  Its rich texture kicks off your day with a Bourbon Street party in your mouth.  Maybe that’s the cabin fever talking, but laissez le bon temps rouler.

Bombay Sapphire East.  This geo-themed gin in classic Bombay blue boasts of Thai lemongrass and Vietnamese peppercorns.  I’m not sure I could distinguish it from straight Sapphire in a taste test, but I’m willing to pay for a foreign feel while stuck in the States.

Veiner Nössliqueur von Pitz-Schweitzer.  A yummy sample of hazelnut liqueur I picked up in Luxembourg: I used it in the icing for the birthday cake.  And maybe I sampled some according to the one-for-the-cup-one-for-the-cook rule.  The drinking policy at my work-from-home-place is super chill.

What I’m Doing to Stay Sane

Burn this.  Our town has suspended yard-waste pickup, so I collected from the yard and burned in the fireplace the winter season’s accumulated kindling.  We had a nice, hot fire for the birthday celebration.  Though I always worry whether the trees outside are alarmed by the smell of smoke from their fallen limbs.


This is the matrix.  Ramadan Mubarak to our Muslim friends, and blessed weekend to all.

Photos in Celebrating, Eating, Drinking, and Staying Sane are mine, CC BY-SA 4.0.