Will the NLRB Change Its Position on Captive Audience Speeches?

This is the question that Paul Secunda considers in a new paper, “The Future of NLRB Doctrine on Captive Audience Speeches.” Under established doctrine, employers may require employees who are contemplating unionization to attend meetings at which speeches opposed to unionization are presented.  However, the National Labor Relations Board has recently undergone some significant membership changes that could conceivably lead to reconsideration of the “captive audience” doctrine.  Paul’s paper describes how this reconsideration might come about and discusses potential outcomes.  His conclusion:

I believe the Board will likely not prohibit all captive audience meetings as I believe they could, and should, do under current law.  Rather, the Board is likely to engage in a more restrained approach based on already-existing doctrines and cases given the Board’s desire to avoid the misimpression that it is merely engaging in politically-motivated flip-flopping.

Paul’s paper was part of a symposium at Indiana University-Bloomington on labor and employment law under the Obama Administration.  The abstract appears after the jump.

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Interstate Travel and Marriage

As Professor Idleman alerted our Constitutional Law course last year, there’s nothing like the posture of a criminal defendant challenging a law’s constitutionality. Compare Bowers v. Hardwick, 478 U.S. 186 (1986) (plaintiff who was charged but not indicted under Texas’ sodomy laws unsuccessfully sues attorney general in action seeking to declare laws unconstitutional) with Lawrence v. Texas, 539 U.S. 558 (2003) (criminal defendants’ charges expunged when sodomy laws declared unconstitutional). Sure the passage of time had more than a little to do with the diverging outcomes in Bowers and Lawrence — but the criminal defense posture didn’t hurt.

A criminal defendant and a plaintiff encounter necessarily inconsistent judicial receptions. Put simply, the claim of one who faces the cruel stigma of criminality — where his or her prospective jail time flows in part from a voter-initiated constitutional amendment — will receive a more exacting hearing than a civil complaint filed by an unjailed plaintiff, disgruntled on the losing side of that same amendment’s enactment.

Because Lawrence declared unconstitutional all sodomy laws, however, how could a gay American be criminalized?

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“If I’d Wanted to Teach About Feelings, I Wouldn’t Have Become a Law Professor”

That’s the intriguing title of a new paper by Andrea Schneider, Melissa Nelken, and Jamil Nahaud.  The title expresses the authors’ mock horror at the thought of “bringing feelings into the room when teaching negotiation.”  They recognize that legal education is not exactly known for helping students to get in touch with their feelings: “learning ‘to think like a lawyer’ has traditionally favored cognition and ignored the powerful role of emotions in all human undertakings.”  Yet, they are convinced that law students will benefit from studying emotions:

One of the goals of focusing on feelings in a negotiation class is to help students learn that they can be emotionally engaged with clients and, therefore, with their own work as lawyers without becoming identified with them. Lawyers who understand clients at an emotional level are better able to represent the client’s needs.  And a lawyer who is sensitive to the emotional cues of his counterparts in a negotiation is better able to navigate the tricky waters of dispute resolution in a way that satisfies his client’s needs without riding roughshod over the other parties involved.

After laying out the benefits of covering emotions in a negotiation class, the authors then provide several practical examples of how negotiation teachers can effectively incorporate a study of feelings into the classroom experience.

This paper is just one of three new papers by Andrea on various aspects of teaching negotiation, all of which appear as chapters in Venturing Beyond the Classroom (Honeyman et al., eds. 2010).  The abstracts and links for the other two appear after the jump.

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