The Labor & Employment Curriculum

Back in the day, when I was at the law school, I had the opportunity to study Labor Law — union/management relations —  with Reynolds Seitz. It was the only “employment law” course in the curriculum at Marquette, and Marquette was quite typical of all law schools. I enjoyed the course very much and so, after my clerkship with Tom Fairchild, I became a management-side labor lawyer until I decided to move into law school teaching. The Dean at my first teaching post told me I would be teaching Torts and Labor Law, but that I had to make up two more courses.  So, I did.  One of them was a new course in Employment Discrimination Law. The area was relatively new, and I had been doing an increasing amount of it in practice. I saw it as interesting, important, and the wave of the future of employment law. I was shocked, however, to discover that at that time less than a handful of law schools had an Employment Discrimination course and that there were no published teaching materials. I had to assemble materials and have them copied and distributed to the students. It was a major effort, and I am glad that, as far as I know, no copies of my original efforts survived to embarrass me.  That challenge, however, became an opportunity. Employment discrimination law became a major focus of my scholarship, and I got several talented colleagues to work with me on several projects. First, we did a treatise, and then we got a contract from what was then Little Brown & Co. to do a casebook. Now published under the Aspen name, but still with the familiar red binding with black print, we are still at it. Our seventh edition was published last year, and we will be doing a supplement this summer. It is still an area that fascinates me and the law continues to struggle to achieve its primary goals of ending and remedying discrimination.

Across all law schools, more students now take Employment Discrimination than any other employment or labor law course. Channeling the union movement, Labor Law is now at risk of being dropped from the curriculum at many schools. Some of us console ourselves by claiming it is now a course in the history of labor law. This coming fall I will be teaching Labor Law at Loyola Chicago, where it has not been taught by a member of the regular faculty in the memory of living humankind. My plan is to try to combine both private and public unionization into one course, though I am not sure if I can pull that off. But combining the two areas reflects the strength that unions retain in the public sector that they lack in the private sector. Labor law will be, for the first time in a long time, in the news as a major political issue. Congress will consider amending the National Labor Relations Act with the Employee Free Choice Act. If enacted, that will allow a union to gain legal recognition by proof that it represents the majority of workers through signed authorization cards.

Ahead of Labor Law in terms of offerings and student signups is Employment Law, which covers the development of individual employment law — common law of contracts and torts, as well as statutes — a topic that took off in the 1970s, but which now seems to be receding in importance. The course typically includes some employment discrimination law and often includes a brief presentation of basic labor law and some other statutory schemes, such as wage and hour law. Employee Benefits Law is part of the curriculum, but its unique blend of tax and labor law usually means the course is taught by an adjunct whose practice focuses on this specialty area. At one point, I co-taught the course with a tax colleague, but when he retired I lacked the courage and stamina to keep up with this most technical area of employment law. I suppose that is another way of saying that tax law scared me.

So where is the labor and employment curriculum headed?  My guess is to add  a new course in international and comparative work law. About ten years ago, the ABA section on labor & employment law put out a huge treatise on the topic. That convinced me that, at least at a practice level, there was a lot going on transnationally. Plus, I like to travel and thought the course would be a natural for summer abroad programs. So I started once more to collect materials and began offering a seminar. In 2007, with another group of talented colleagues, we put together, and Cambridge University Press published, our casebook, entitled, “The Global Workplace.” Among many fine features, the book has a beautiful, artistic cover, unlike the red books of Aspen, the blue of Foundation and Lexis-Nexis, and the brown of West. We cover international employment law, including the International Labour Organization, the NAFTA labor side accord, and the EU, as well as the labor and employment law of nine different countries — the U.S., Canada, Mexico, the U.K., Germany, France, China, Japan, and India. Since the publication of our book, two approaches that have a different focus have hit the street.  One focuses primarily on international labor law without much comparative material and the other involves the publication of a series of paperbacks that can be used as add-ons in the domestic law courses. We, of course, like our approach, but it will be interesting to see which way the curriculum develops. Labor and employment law has been almost entirely domestically oriented, and so it is a big step for someone to undertake teaching transnationally, especially doing comparative work.  But, it is cutting edge, interesting. and a great way to really understand U.S. labor and employment law.

The worst fear of all of the people working in this area is that, in reaction to the economic crisis, the world will be entering an era of “deglobalization” — a backlash of protectionism both in this country and in many others. I try not to be too self-centered about that happening but, if it does, that will certainly undermine the rationale for international and comparative work law. Perhaps my course would then become “The History of the Global Workplace.”

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