Employment as Transaction
61 Pages Posted: 29 Jan 2009 Last revised: 24 Nov 2014
This piece offers a fresh perspective on the upper-level employment law class based on the theme of employment as transaction. Like much of law school, employment law is often taught from a public advocacy perspective in which the primary role of the lawyer is to vindicate workers' rights or responsively defend managerial action. As a doctrinal matter, however, courts are showing increased attention to the role of private ordering in defining workplace rights and assessing liability, even in regulatory areas. Courts routinely examine employers' efforts to redress unlawful behavior under antidiscrimination law and consistently sanction the use of arbitration agreements waiving rights to a federal jury trial if they satisfy the requisite contract formalities. At the same time, an evolving branch of employment law scholarship has recognized the role of corporate actors and other intermediaries in achieving the normative goals of workplace regulation. Thus, the way in which employers internally implement and respond to the law is an important site of study for those seeking to ensure the realization of legal rights.
These complementary developments in law and theory provide both a unifying theoretical framework for teaching employment law and policy and an opportunity to reconfigure the course to address both recent and long-standing critiques of legal education. A principle insight of the Carnegie Foundation's 2007 report on the quality of legal education is that legal pedagogy artificially segregates instruction in substantive expertise, practical skills, and professional values. Using an actual class exercise as an illustration, the piece demonstrates how a basic employment law course can be redeployed as a skills/doctrine hybrid that not only integrates practical training into the substantive course, but exposes students to the especially neglected area of transactional skills. Incorporating a transactional learning experience is a significant stride toward preparing students for a proactive practice in which they are capable of counseling clients, ensuring regulatory compliance, and managing risk, skills sorely needed in a world of increasingly transactionalized relationships.
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