The Faculty Lounge

Textualism, Purposivism, and Intentionalism for a Dime

This is a true story about an event around five years ago, which I offer for potential insight on statutory construction.

On my way home from the law school one afternoon, I stopped at a local Whole Foods market for a few items for dinner preparation. I found what I needed pretty quickly and headed for the checkout line. The cashier rang up the sale and started to put my groceries in a paper bag. "No need for that," I said. "Just hand them to me and I will carry them." The cashier complied and I tucked a couple of items under my left arm while holding onto another. "Don't forget the ten cent rebate," I said, "as I began to swipe my credit card.

"I'm sorry," said the cashier, pointing to a nearby sign, "but the rebate only applies if you bring your own bag." Sure enough, the sign plainly read:

Ten cent rebate if you use your own bag

"Sure," I replied, "but the point of the rebate is that I am saving Whole Foods from using a bag."

"That's not the policy," was the answer. "The rebate is for bringing your own bag."

"What difference does it make?" I asked. "The benefit to the environment is the same, whether I have a bag or just carry my stuff by hand."

"You have to bring a bag if you want the rebate."

And that was the end of that. I'd already taken too much of the clerk's time, and we were only talking about a dime, so I just took my goods and left. But I kept thinking about it on the drive home, and now and then ever since. What was the correct way to construe the sign? 

The text was seemingly unambiguous: ten cents off if you have your own bag. But the intention behind it was equally obvious: to save paper bags and thus impose less waste on the environment. The purpose of posting the policy likewise appeared clear: to motivate customers to forego using Whole Foods's bags, and it had the desired effect on me.  (No, I didn't take a paper bag just because I was entitled to one at no additional cost.)

I therefore offer this vignette without comment, illustrating three equally plausible methods of interpreting the same provision, only one of which cost me a dime.

Roll in My Sweet Baby's Arms

How Can Workers Get More Pay? Two Articles in Today's News

Eric Posner has an excellent essay in today's New York Times -- "You Deserve a Bigger Paycheck; Here's How You Might Get It" -- explaining how employers' monopsony power depresses workers' pay:

In highly concentrated labor markets, wages fall — as economic theory would predict. For example, Elena Prager and Matt Schmitt examined hospital mergers and found that when hospitals expand through mergers and gain significant market power, the wage growth of employees declines. Notably, this decline affected skilled health care professionals like nurses — but not administrators and unskilled staff members like cafeteria workers, who could easily find jobs outside hospitals.

The work on labor market concentration has been supplemented by growing evidence that employers collude with one another and engage in other anticompetitive practices.

One solution to this problem, Posner says, would be increased federal antitrust enforcement against companies exercising monopsony power in the labor market:

Antitrust law applies to “restraint of trade,” and courts agree that when employers enter cartels to suppress wages, they violate the law. Yet until a few years ago, there were hardly any antitrust cases against employers.

That is a good idea that would be most welcome by labor advocates. But federal enforcement, or even private lawsuits against employers, can only accomplish so much. Recognizing that employers have depressed wages "especially in rural areas and small towns," Posner does not proceed to the obvious conclusion that unionization can provide an important and effective counterweight to employers' power over workers' pay (yes, it is a short essay).

The stagnation, and even decline, of  real income for the working class and middle class has occurred during the Republicans' 40 year offensive against labor unions, beginning in the Reagan administration and continued by state legislatures. In Janus v. AFSCME, the U.S. Supreme Court held that unions could not collect "agency fees" from non-members, even though they were required by state law to represent non-members in collective bargaining and other matters. (Agency fees were set at about 78% of dues, excluding money spent on political and ideological lobbying.)

Even so, unionization remains the most effective way for workers to combine and enhance their own bargaining power, without depending on the initiative of the FTC or DOJ (which, as Posner notes, has not been much in evidence).

Also in today's news, the unionized food service employees at Northwestern have voted to authorize a strike for better pay -- their first raise in two years -- and uniform health coverage.  As reported in the Daily Northwestern,

The average Compass worker represented by the union UNITE HERE Local 1 made $27,843 in 2019 and hasn’t received a raise since then, according to a union news release.

In February, Compass [the outside contractor for Northwestern's food service] stopped providing health insurance to full-time workers who worked less than 40 hours per week. This policy change left 74 of the 260 active, full-time Compass workers without health insurance that month, the release said. 

Veronica Reyes, a cashier at Foster-Walker Complex, has worked at NU for 11 years. She makes $14.05 an hour and voted to authorize the strike, saying many of her co-workers lost their health insurance during the pandemic. 

“With this little money, I cannot support my family,” Reyes said. “It’s not right. We deserve more.” 

Reyes said she prefers to negotiate rather than strike, adding she doesn’t want to leave her job because she loves working with students. 

In-person classes on Northwestern's Evanston campus have just begun for the first time since March 2020. The food service workers have chosen the perfect time to amplify their bargaining power by endorsing a strike. And they don't need to wait for antitrust lawyers to take up their cause.

Netflix Announces New Series "The Adjunct," as Follow-Up to "The Chair"

Cross posted from the Academe Blog, with permission of the author.

Netflix Announces New Series “The Adjunct,” as Follow-Up to “The Chair”

BY CATHERINE M. YOUNG

Follow the foibles of Claire Park, a Walt Whitman expert and part-time instructor at a small liberal arts college and large public university as she looks ahead to the fall semester and wonders how she will pay her November and December rent if her third class is canceled because not enough students registered for “iSing the Body Electric: Walt Whitman in the Digital Age.”

Guffaw as Claire picks up an extra class at a religious college and has a hilarious outfit-changing montage in which Claire decides to risk wearing pants, then decides against it, then puts on a long black skirt and a loose sweater, and her BFF tells her, “You look like a pregnant witch.”

Cringe as Claire can’t print her course materials on the adjunct printer and asks the Visiting Assistant Professor, Maria, if she can use her personal office printer, causing Maria to spill coffee on HER course materials. Claire and Maria, who might have been friends in another life, never speak again.

Watch Claire stand at the computer that sits between the microwave and mini-fridge in the main office because the computer in the faculty lounge has an ancient browser that won’t load any websites except AOL. Claire does not have the “administrative privileges” to update the browser.

Holler “YIKES!” as the department chair tells Claire to print her course materials at home. Claire debates confessing that she’s been out of ink for eight months.

Chuckle as Claire tries to hide her dented 2012 laptop from students by quickly removing it from her bag to the lectern before class starts.

Purse your lips as Claire conducts unpaid required office hours with students in a loud crowded hallway because she has no office.

Celebrate Claire’s triumph in securing a shared cubicle, only to discover that one of her cubicle mates leaves evidence of Acral peeling skin syndrome all over the keyboard.

Watch Claire petition the office manager for a can of compressed air with which to clean the keyboard. This is a twelve-week process. In the end, the office manager agrees to give Claire access to the compressed air for five minutes each week. When the office manager discovers Claire using the compressed air to clean her 2012 laptop, Claire’s weekly access is revoked.

Chuckle at the university security guard’s total exasperation at Claire’s “aw, shucks” face when she tries to swipe herself into work using her ID from the other college.

Grimace as Claire is cajoled into teaching a twenty-seat senior seminar and then finds out it’s been intentionally over-enrolled to twenty-seven students.

Wince as Claire eats her bagged lunch of peanut butter and jelly while her students swipe their meal cards for sushi and smoothies.

Let the pit in your stomach grow as Claire smiles incessantly to make the department chair feel at ease while he slings his leg over the armrest of his chair during their syllabus meeting. While debating the nuances of the meeting with her BFF, Claire calls this move “the chair chair.”

Watch Claire teach a newly developed class with controversial content while the person who developed the class is on paid research leave. Follow the “cancel culture” debate as a student makes good points and Claire tries to defend a curriculum she didn’t develop.

Cheer as Claire finally gets up the courage to ask the illustrious physics professor who has the classroom before her to erase the whiteboard when his class is over.

Tear up as a student discloses to Claire that she is the victim of a sexual assault, making Claire realize she has received no training from Human Resources. Watch Claire’s surprise when she finds out she is a mandated reporter.

Deeply inhale your breath through clenched teeth as Claire pauses while adjusting the lights because she got distracted by reading the “active shooter” directives posted next to the door.

Clench your fists with anxiety as Claire accuses a student of plagiarism and his response leads her to think he might commit an act of violence. Watch Claire request that the dean intervene.

Blanch as Claire brings substantial evidence of gender and racial bias in student evaluations to her department chair and the chair tells Claire that her “merit raise” will be based solely on the student evaluation score.

Cringe as Claire hides from the department chair for the entire fall semester because the chair told Claire she might have to resign due to pregnancy.

Tsk tsk when Claire is dropped from her regular teaching gig at one school so that the school doesn’t have to give her health insurance. Tsk tsk again when Claire gladly teaches at the same school a year later because “it looks good on her CV.”

Sigh heavily as Claire accepts too many classes for the spring because she doesn’t want to “burn any bridges” with the department chair, whom Claire overhears describing adjuncts as “horses in a stall.”

Whisper “yikes” when Claire applies for a tenure-track position at one of the colleges where she teaches and does not get an interview.

Catherine M. Young studies popular entertainments including musicals, circus, and vaudeville. She advocated for and helped collaboratively develop the City University of New York Graduate Center’s first-ever Doctoral Student Parental Accommodation Policy. She has been and is currently contingently employed. Her Twitter handle is @fickle_freckled.

Slavery and the History of Federal Powers

Revisionist scholars like Jack Balkin and Richard Primus argue that expansive federal powers are consistent with the principles of the Founding, the views of the early Congress, and/or Marshall Court decisions like McCulloch.  In a forthcoming article, I argue that this scholarship ignores slavery’s profound influence on the Constitution. Before the Civil War, virtually everyone agreed that Congress had no power to interfere with slavery in existing states. Because slavery was fundamental to the political, social, and economic order of the South, this national consensus on slavery dictated that Congress’s powers were extraordinarily narrow by today’s standards.

Of course, slavery’s influence on federal powers is well-known and widely accepted among historians.  My article seeks to “move the ball” by connecting this historical scholarship to the revisionist work of Balkin, Primus, and others. Although I am sure that they are well versed in history, this only makes their lack of any serious engagement with slavery so difficult to understand. (For example, in five articles on the topic, Primus’s most in-depth consideration is found in his most recent essay, which has only 3 pages of discussion). I hope my article encourages them to give more serious consideration to slavery’s influence moving forward.  As the current debates over teaching critical race theory have made clear, we must acknowledge and understand the implications of racism in the law in order to fight against it.  In fact, I argue that slavery’s influence on the historical understanding of federal powers provides a strong reason to reject any theory of interpretation that makes history dispositive of constitutional meaning (including Balkin’s Living Originalism, at least with respect to powers).

My article also engages with the work of David Schwartz, who, unlike Balkin and Primus, does seriously engage with slavery while still arguing that history supports expansive federal powers. In my opinion, however, he does so only by underestimating slavery’s influence.  In sum, Schwartz seems to suggest that, at least for the early Congress and Marshall Court, slavery was an exception to otherwise broad federal powers. His argument, however, gets it exactly backwards. Slavery did not operate as an external constraint on otherwise broad federal power. Instead, slavery was a powerful motivation for the antebellum consensus that all federal powers were limited in scope. This distinction matters, and we do a disservice to history by minimizing slavery’s pervasive influence on constitutional history. Only by fully acknowledging slavery's role can we  build the best case for the type of living constitution that would allow for meaningful change in the Supreme Court's federalism doctrine.

Assistant Dean of Legal Information Services and Professor of Practice (2021) Washington and Lee University: Law School

The listing is here https://apply.interfolio.com/93228

Location
Lexington, Virginia
Open Date
Aug 26, 2021
Description
Reporting to the Dean of the Law School, the Assistant Dean of Legal Information Services manages all aspects of the operation of the Wilbur C. Hall Law Library in a manner that supports the mission of the Law School. While this is a 12-month administrative appointment, the Assistant Dean will also hold faculty rank (non-tenure track) and the title of Professor of Practice, teaching one or more legal research courses annually as needed.

Washington and Lee University promotes a dynamic and inclusive environment that allows students and employees of multiple backgrounds, cultures, and perspectives to learn, work, and thrive together. Successful candidates will contribute to that environment and exhibit potential for excellence in teaching and for vigorous scholarship. In keeping with the University Strategic Plan, we welcome applications from underrepresented minority candidates and members of other communities that are traditionally underrepresented in academia.

Status: Full-Time, 12 Month, With Benefits
Position Type: Administrator with Faculty Rank
Work Hours: 8:30 a.m. - 4:30 p.m. Monday - Friday
FLSA: Exempt
Minimum Pay: $127,652

Essential and Related Functions

The Assistant Dean of Legal Information Services manages all aspects of the operation of the Wilbur C. Hall Law Library in a manner that supports the mission of the Law School. Specific responsibilities include the following:

Works with the Dean to establish objectives of the Law Library that best support the research, teaching, and programmatic needs of the Law School community.
Promotes a positive and creative work environment while undertaking supervisory functions relating to hiring, performance review, and professional development.
Establishes budgetary priorities for the Law Library in a manner that maximizes the benefit of library resources.
Creates and maintains print and digital collections appropriate to the mission of the Law School.
Oversees the management and development of innovative digital initiatives, including an institutional repository and the widely recognized W&L Law Journal Rankings.
Manages the Law Library’s physical space to maximize the benefit of this resource for the Law Library and the Law School more broadly.
Collaborates with the University librarian on a range of administrative matters to leverage University resources and to promote efficiency in the delivery of library services across the entire University.
In addition to managing the Wilbur C. Hall Law Library, the Assistant Dean of Legal Information Services will hold the title of Professor of Practice. In this capacity, the Assistant Dean will teach one or more legal research courses, including the first-year legal research course and advanced legal research, as needed. Additionally, the Assistant Dean may teach a doctrinal course in an area of expertise subject to need and feasibility.
Required Competencies

Strategic Thinking - Actively develops and aligns the departmental strategy with the University's vision, mission and values. Able to rally others behind the University's mission and create commitment to achieving long-term goals. Looks beyond the surface of problems, connects unrelated information and integrates it when making decisions. Able to quickly assess changing situations and recognize key risks involved in order to handle the problem or opportunity efficiently.
Change Adaptability - Champions change initiatives in own department, communicates rationale and provides updates throughout the change process to help others deal with ambiguity. Anticipates and addresses staff concerns throughout the change process, creating and maintaining open dialogue to obtain commitment and buy-in. Supports the practical utilization of new ideas that show promise and encourages diversity of thought in own department and others.
Communication and Networking - Adapts own style to deliver persuasive messages by understanding the audience, communication objectives and intended outcome. Serves as a role model by advocating a culture of openness and two-way communication across departments. Develops and maintains knowledge of key areas, persons in the University or larger community and uses social networks to build support for common purposes.
Drive for Results - Champions continuous improvement of work methods, policies and practices by providing resources and sharing success stories and lessons learned. Engages department in setting challenging goals and targets, encourages others to overcome obstacles and holds people accountable for results. Guides establishment of customer service processes to standardize a culture of customer service and sensitivity.
Talent Development - Supports processes to identify and reward talent by creating development opportunities, mentoring and coaching others to develop the next line of leaders. Proactively identifies and ensures development of critical future skills and capabilities for talent across the University and not just within a department. Takes time to actively build individual relationships on a formal and informal basis with University employees. Leads by example, by supporting the implementation of a sustainable performance development system (e.g., encouraging participation in goal setting activities, final year review, etc.).
The university requires employees to become fully vaccinated for COVID-19 and new employees must provide proof of at least their first shot prior to the first day of employment. Individuals may seek a medical or a religious exemption to the vaccination requirement.

Qualifications
The Assistant Dean will hold a J.D. degree from an ABA-accredited law school and a M.L.S. or equivalent degree from an ALA-accredited institution. Additionally, the Assistant Dean will have considerable experience in law library administration, including personnel management and management of financial resources.

In addition to possessing strong supervisory, communication, and leadership skills, preferred candidates will have an appreciation for the changing roles of law libraries in legal education and a willingness to continue the Law Library’s record of innovation in deploying resources in a manner that best serves the needs of the students, faculty, and other members of the Law School community.

Physical Requirements

Fingering: Picking, pinching, typing or otherwise working, primarily with fingers rather than with whole hand or arm as in handling.
Grasping: Applying pressure to an object with the fingers and palm.
Repetitive motions: Making substantial movements (motions) of the wrists, hands, and/or fingers.
Working Conditions

The worker is not substantially exposed to adverse environmental conditions (as in typical office or administrative work).
Sedentary work: Exerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently or constantly to lift, carry, push, pull or otherwise move objects, including the human body. Sedentary work involves sitting most of the time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.
Application Instructions
To be considered, applicants should submit the following materials through the Interfolio portal: http://apply.interfolio.com/93228

CV
Personal statement
Contact information for three professional references
Review of applications will begin immediately and continue until the position is filled. For more information please contact Brian Murchison, chair of the search committee, at murchisonb@wlu.edu.

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Application Process
This institution is using Interfolio's Faculty Search to conduct this search. Applicants to this position receive a free Dossier account and can send all application materials, including confidential letters of recommendation, free of charge.
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Equal Employment Opportunity Statement
Washington and Lee is an Equal Opportunity Employer. As such, we are interested in candidates who are committed to high standards of scholarship, performance and professionalism and to the development of a campus climate that supports equality and diversity in our faculty, staff and student body. Job description requirements are representative, but not all‐inclusive of the knowledge, skill, and abilities needed to successfully perform this job. Reasonable accommodations may be made to enable qualified individuals with disabilities to perform essential functions.

Statement of Commitment to Diversity

Washington and Lee affirms that diverse perspectives and backgrounds enhance our community. We are committed to the recruitment, enrichment, and retention of students, faculty, and staff who embody many experiences, cultures, points of view, interests, and identities. As engaged citizens in a global and diverse society, we seek to advance a positive learning and working environment for all through open and substantive dialogue.

CUNY Law Seeks Dean

This just in:

The City University of New York (CUNY) seeks an engaged and highly collaborative leader for the position of Dean of its School of Law. Reporting to the Chancellor, the Dean will have an extraordinary opportunity to lead a school that is a national and international leader in experiential legal education and recognized as one of the premier public interest law schools in the nation. CUNY School of Law is the nation's #1 public interest law school, its dual mission to educate lawyers in the service of human needs, and to transform the teaching, learning, and practice of law to include those historically excluded, marginalized, and oppressed make it a singular institution. As the only publicly funded law school in New York City, CUNY Law increases access to excellent legal training by pursuing its mission. The Law School's access mission is further served by its four year part-time evening program, launched in 2015.

CUNY Law is built on a tradition of radical lawyering: movements for social change are built with leadership and collaboration from the people and communities who have experienced injustice. The law school’s #1 ranking in diversity of the faculty and student body is an example of how its mission is realized through intentional recruitment and its status as a top-three clinical education program is a manifestation of CUNY Law’s commitment to partnering with local and grassroots organizations in the field. The CUNY Law community is one of activists, organizers, scholars, and advocates that stand united in the belief that only when the world can see the full range of human experience reflected and represented in the law will we have justice for all. This is an exciting opportunity to join the nation’s leading urban public university, led by a strong executive team and a highly cohesive group of leaders of all CUNY institutions, allowing for a plethora of unique collaborative opportunities.

What Can We Learn from Justice Thomas's Tocqueville Lecture at Notre Dame?

Josh Blackman has helpfully transcribed Justic Clarence Thomas’s recent Tocqueville Lecture at Notre Dame Law School and posted it on the Volokh Conspiracy. Most of the media attention has focused on Justice Thomas’s defense of SCOTUS’s independence and warning against jeopardizing “faith in the legal institutions,” but Josh points out that the entire talk has many more worthwhile observations, which he calls “gems.” Josh includes one full passage in the body of his post, but I don’t think it is as admirable as either he or the Justice think it is.

Question: Has there been times in your career when the legal questions you must resolve conflict with your Catholic faith? If so, how do you proceed?

Justice Thomas: No, not really. I think if it did, if I think if it gets something conflict, that great. Where I fundamentally think it's wrong, I would just go and do something else. The I'm at a point, you know, I said that early on, and I still believe that, but I have lived up to my oath. There are some things that conflict very strongly with my personal opinion, my policy preferences. And those were very, very hard, particularly early on. But you don't I don't do a lot of hand wringing in my opinions and tell people 'Oh, I'm really sad.' That's not the role of a judge. I mean, you do your job and you go cry alone. But there have been some words. But there have been some that broke my heart. And that just were really, really high. And I've been there sometimes, particularly early, you sit with the more seasoned members of the court, and you explain to them what's wrong. And when I first became a judge in 1990. My colleague, Judge Silberman, Larry Silberman, sat down with me. And one of the things that's really interesting is no judge ever tells you how to do your job. The only people who tells you tell you how to do your job, or people who've never been judges. But anyway, he said to me, he said, I'm just going to give you a little bit of advice, unsolicited advice. Before you sit on a case, ask yourself this question, what is my role, in this case, as a judge, not as a citizen, not as us as a as a as a Catholic or any What is my role, in this case, as a judge? That is a hard one. Because if you stay in that lane, there are some things that you as a citizen, or you as a personal preference would want to come out a different way. And that's what I've tried to do the other thing, and then I'll be quiet about it. But I have four law clerks, four wonderful law clerks. And they're very, very bright like your students. And they watch you I tell them to watch me. And that's something my grandfather always told us watch me and do as I do not, as I say. So he didn't really mean that do as I don't do as I say, part I can tell you that. But the I tell my clerks that you watch me for a full year, and my job is that you leave here with a clean with clean hands, clean hearts and clear conscience. We will never do anything that's improper. And I encouraged them to tell me every clerk works on every case. So if you see something, your job is to let me know. And we sit and we talk about it. But in 30 years or 30 terms, we I don't think a single Clerk will ever tell you we have that anything other than our job. (Boldface per Blackman.)

The first problem, of course, is that Justice Thomas does not tell us anything about the cases he cried over. Exactly which decisions did he join that were contrary to his policy preferences, and how often did that happen? Without any specifics, it is impossible to evaluate the frequent claim that originalist methods lead to determinable results independent of the judge’s personal values. Josh is evidently willing to take Justice Thomas’s word for it, but I would like more information.

Less obvious are the greater implications of Justice Thomas’s anecdote about his clerks. Justice Thomas informs us that he tells his clerks they must leave their positions with “clean hands, clean hearts and clear conscience.” To that end, he encourages them to watch him, making sure he does his job “as a judge, not as a citizen.” They need to tell him if they “see something” so that they can sit and “talk about it.” Again, we don’t know if any clerk has ever raised a conscientious objection of an opinion, much less questioned his clean hands. And if this has happened, we don’t know the outcome: Did Justice Thomas convince the clerk of his position, or did the clerk persuade Justice Thomas to change his mind?

We do know that all 120 clerks would stand up for Justice Thomas today. “But in 30 years or 30 terms, we I don't think a single Clerk will ever tell you we have [done] anything other than our job,” Justice Thomas assures us. Well, of course not. Like all other SCOTUS clerks, Thomas’s are hand-chosen. They are dependent on him for references, and they will benefit from their association with him for the rest of their careers. Who would expect any of them to report that the justice had been allowing his preferences to interfere with his job?

Approval from his clerks is certainly evidence of their loyalty to Justice Thomas, but it tells us nothing about the rectitude of his decision-making. (To be clear, I do not question Justice Thomas’s rectitude or sincerity, but his Tocqueville lecture provides scant evidence of deep reflection.)

Josh ends his post with the observation “well said.” I have a similar reaction, but only because Justice Thomas revealed more about his self-awareness, or perhaps lack of it, than he intended.

Songs about Songs and Musicians [UPDATED with The Heart of Rock & Roll + Garden Party]

There were fewer of these than I expected to find, but they do transcend genres.