Rant on the Economy

The collapse of the economy is the result of many different causes. There is plenty of blame to go around. For all too long, the government, under the spell of the mantra that “the government is the problem, the free market is the solution,” let much of the financial industry escape any real regulation by morphing into new forms of business that did not fall within the conventional regulatory schemes. As the Madoff and Stanford scandals show, the regulators gradually deregulated, through lack of vigorous enforcement, even in areas that are within their authority to regulate. As Judge Posner admitted recently, in that environment of rampant non-regulation, the Wall Street “Masters of the Universe” acted as he would expect, as “rational profit maximizers”: Unrestrained short term greed simply drove all good sense out of the market.

For example, most of the “credit default swaps,” and it appears much of the world of “derivatives,” is in fact gambling. Neither party to the swap has any connection to any actual economic activity. They are simply betting on the outcome of the actual economic activity undertaken by others.  In a world of rational regulation, no honest business would propose such a scheme because regulators would be expected to swoop in and determine these swaps to be what they are — unenforceable gambling contracts. Where was the accountability for those in the financial industry, the regulators and those in charge of the regulators who all acted so irresponsibly? A new structure of regulation and new regulators need to be put in place so that those with basic good sense have the reinforcement of prudent regulation.

Some of the blame seems wrongheaded.

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Lunch Bunches, Ten Second Chat, and Color Photo Seating Charts

I have learned over the years from my two kids, both now adults, that many people, including no doubt law students and potential law students, view law professors as a different breed of animal.  I guess in my family we do push the envelope since my wife, Margaret Moses, and I are both law professors. The friends of our kids, and, indeed, my law students, are shocked to discover, for example, that in my youth I worked in the factory at what was then the Allen-Bradley company — on the seventh floor of the building with the largest four-sided clock in the world — and that, even in the summer after my first year in law school, I was a truck driver moving people’s household goods from one end of the country to the other. Somehow law professors, even before they are law professors, live such different, abstracted lives that it is beyond comprehension that one of them drove a truck as a summer job or worked in a factory making electrical resistors, whatever they are.

While my kids no doubt have good reason for thinking that I am weird in various ways, I think of myself as falling within the range of what could be called normal. I want my students to get some chance to agree, or have a closer look to decide that my self-assessment is way off track. So, here are two techniques I use. First, whenever I see a student of mine outside of class, I go out of my way to say hi and to chat: The ten second chat. Students are very aware of us but many are afraid of making the first move when they see us outside of the classroom. Reaching out to them breaks the ice. The downside, of course, is that I get it wrong. Early this semester, I was in the elevator with one of my students, so I started to chat.  Unfortunately, she was a student in a different class than I had assumed, so I am sure that she thought I was even weirder than she might have if I had said nothing at all. But it is a risk worth taking.

Second, I arrange “lunch bunches” with the students in my class.

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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.

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