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Abstract:
The expansion in the use of arbitration means that many people, including lawyers, are somehow involved in the process of settling a dispute through arbitration. Persons who establish the procedures governing an arbitration, handle an arbitration, or teach a course about it often have questions about what the best practices for an arbitration hearing are. This article suggests that one important source of best practices for arbitration, which the literature too often ignores, is litigation and trial lawyering skills principles and methods (litigation principles).

In Section I, this article will discuss the subject of litigation principles and illustrate how specific principles and methods foster the values of problem-solving, aiding the decision-maker, and presenting an organized and persuasive case. Section II will provide general background on what arbitration is. Section III, will focus on describing how a prototypical arbitration process might look. In Section IV, the article will raise procedural, and related, issues upon which either rule-makers or advocates likely seek guidance. The section discusses specific litigation principles and applies them to recommend best practices as to these arbitration issues. Finally, in Section V, the article will conclude by discussing the utility of this approach to developing best practices for scholars, teachers, and practitioners.

arbitration, lawyering skills

Abstract:
As the nineteenth century drew to a close, Samuel Warren & Louis D. Brandeis proclaimed that technological change necessitated new protections for the right to privacy. Today, new protections for the right to privacy are called for once again because, in the American workplace, technological change continues unabated and little privacy is afforded employees from employer monitoring using the technology. Moreover, employers are disciplining and terminating employees based on information uncovered by monitoring. Recently, many employees have been terminated for off-duty blogging. Employees are often disciplined for using e-mail for personal reasons while at work. And global positioning systems ("GPS") have been relied on to discipline drivers and other employees.

This is the first academic article to provide a detailed review of labor arbitration decisions governing the right to privacy from employer monitoring in over thirty years. The article uses the decisions, on employee privacy and technologies such as GPS, e-mail, and the Internet, as a springboard to propose privacy protections in the non-Union private sector workplace. It, thus, fills a gap in the academic literature. The framework suggested provides the greatest protection for off-duty behavior, intermediate protection for on-duty expression of thought, such as through computer usage, and baseline protection for on-duty actions. It could be implemented through legislation of minimum rights or mandates for employers to adopt safe-harbor policies.

privacy, arbitration, labor, employment, technology, monitoring

Abstract:
Barbara Kingsolver's Animal, Vegetable, Miracle: A Year of Food Life is a must-read for lawyers and legal scholars in the areas of food law, environmental law, agricultural law, and education law. Indeed, I recommend it to anyone interested in the future of the planet or our children. The over-arching point of Kingsolver's book is that Americans should eat more locally-grown food. Kingsolver's position is that eating locally-grown food promises to be part of the solution to several of the major problems facing us at the start of the 21st century, such as global warming and childhood obesity. Many of the issues that Kingsolver addresses are legal ones, and many of the implications of her arguments also bear on legal topics. This review discusses the legal issues raised by the book and provides annotation to relevant legal articles, including articles on increasing opportunities for food production in local economies; global warming; childhood obesity; the Federal Farm Bill; the Plant Variety Protection Act of 1970; pesticide pollution and loss of wildlife habitat; lawsuits involving patented plant varieties; laws and regulations related to genetically modified foods; labeling laws governing Recombinant Bovine Somatotropin Hormone; proposals to reduce the public health risks of mad cow disease in the United States; green zoning; local ordinances governing community gardening; elimination of the regulatory quota system for tobacco; and the National Animal Identification System.

locally-grown food, global warming, childhood obesity, food production, local economies, Federal Farm Bill, Plant Variety Protection Act, patented plant varieties, genetically modified foods,

Abstract:
Looking for movies or video clips to use in your legal writing class? Thinking about blogging? Simply want an interesting document to use on the document projector? This draft of a piece forthcoming in The Second Draft provides quick tips about easy ways that one professor has successfully used technology to enhance her students' learning. Like the forthcoming piece, this draft provides footnotes about where to locate materials, but it also provides additional footnotes recommending scholarship on wikis and podcasts.

legal writing, pedagogy, technology, teaching tips

Abstract:
Scholars generally agree that the law in the United States fails to adequately protect employees from technological monitoring by their employers. And groups as diverse as the ACLU and a coalition of multi-national businesses are calling for legislation to address privacy concerns stemming from the rise of new technologies. Yet, few, if any, academic articles have proposed an actual draft of legislation designed to protect employees from technological monitoring by their employers. If recent calls for privacy protection to address emerging technologies are to succeed, blueprints for legislation must be provided. This article, thus, contributes to the call for reform by proposing a federal statute to protect employees’ privacy from technological monitoring by their employers.

The article surveys potential sources of law and legislation that, while inadequate on their own to protect employees’ privacy, serve as a foundation for the proposed legislation. While each of these sources has been reviewed by scholars in the past, consideration of all as a potential source upon which to model legislation is a notable strength underlying the proposed statute. The basic framework of the proposed statute is to provide protection based on the degree of intrusiveness of the privacy invasion. The framework provides baseline protection for on-duty actions, intermediate protection for on-duty communications and use of employer communications technology, and the greatest protection for off-duty behavior. Other notable features of the proposal include the comprehensive nature of the proposal, in comparison to most prior scholarly proposals; the flexibility the statute provides to employers to engage in necessary monitoring; provisions designed to foster employee involvement in implementing and enforcing workplace technological monitoring policies; and the involvement of a government agency, the Department of Labor, in educating interested parties about employee privacy issues and in enforcing the statute. While passage of legislation protecting employees’ privacy from employer technological monitoring may face an uphill battle, it is possible and should be done.

employment, privacy, legislation

Abstract:
The question is: Who is the client? Many ethical decisions attorneys must make emanate from this basic question. Thus, for those employment lawyers who represent, interact with, or sue unions or corporations, it is important to understand who the client is for different purposes such as representation, the attorney-client privilege, and ex parte communications. Because Kentucky recently adopted new rules of professional conduct, this paper uses Kentucky law as a microcosm through which to think about this larger question. Kentucky’s prior rules were based on the prior version of the ABA Model Rules of Professional Conduct, still at least partially in effect in approximately twenty-two states. And the current rules mirror, almost identically in pertinent parts, the current model ABA rules, known as Ethics 2000, on which approximately eighteen other states model the pertinent rules. This recent change permits scholars and attorneys from a wide variety of states to benefit from the insights about Kentucky law.

Section I discusses the law governing a corporate employer attorney’s relationship to the client and summarizes the law applicable to a union attorney’s relationship to the client. Section II describes the duty of confidentiality and its relationship to the attorney-client privilege. Section III considers how far down the chain of command an employer or a union can assert the attorney-client privilege. Among other topics, Section III discusses relevant rules of evidence, related authority dealing with employers, cases regarding unions asserting the privilege, and fiduciary exceptions to asserting the privilege. Section IV addresses privileges related to the attorney-client privilege that a union may, in some circumstances, be able to assert. Finally, Section V discusses the law governing ex parte communications with employees of a represented employer.

professional responsibility, ethics, employment, labor law, attorney-client privilege, ex parte communications

Abstract:
The United States Court of Appeals for the District of Columbia has posited that mere presence of a union agent near a polling place is objectionable conduct. The National Labor Relations Board ("Board") should take the first opportunity to clarify that mere presence of a union organizer in the vicinity of an election is objectionable only when the sole possible purpose of the presence is surveillance. To harmonize its precedent, the Board should explicitly overrule all arguably contrary precedent and explain the distinction between electioneering and surveillance cases. This casenote provides an overview of the Board's electioneering precedent, discusses the case of Nathan Katz, 251 F.3d 981 (D.C. Cir. 2001), and then suggests the manner by which the Board can harmonize its precedents dealing with the presence of organizers in the election vicinity.

labor law, electioneering, surveillance, union agent

Abstract:
This piece provides examples of two high-profile cases where attorneys could have avoided small but significant errors by editing legal documents. The piece then discusses four useful editing tactics: swapping editing tasks with a colleague, setting the document aside, reading the document aloud, and editing in planned stages. Examples of planned stages include a page-by-page review, a review for content and flow, a review for citation errors, a review for grammar and style, a review for misspellings, typographical mistakes, and citation form, and a review for errors particular to the writer.

legal writing, editing