Allgeyer v. Louisiana

As I discussed earlier, Allgeyer v. Lousiana, 165 U.S. 578 (1897) expressed the unanimous opinion of the Supreme Court that freedom of contract was a fundamental right protected by the due process clause of the Fourteenth Amendment. While this case itself was applied to limitations of out-of-state businesses operating in Louisiana, its valorization of the “liberty of contract” was extended to employment regulations as well (Hall 398).

Holden v. Hardy

Still, despite this valorization of contract as liberty the year before, hints emerged of limitations on contract that would emerge more fully in the twentieth century. In Holden v. Hardy, 169 U.S. 366 (1898), Justice Henry Billings Brown “accepted the idea that employer and employee do not stand on an equal bargaining footing” (Hall 399):

the proprietors of these establishments and their operatives do not stand upon an equality, and … their interests are, to a certain extent, conflicting. … In other words, the proprietors lay down the rules and the laborers are practically constrained to obey them.

As regulations limiting children’s working hours in factories are a valid exercise of a state’s police power — which also includes enforced vaccination, quarantine, and other protections of the public’s general welfare — so too is an act that seeks to protect workers in a particularly dangerous occupation (mining).

Lochner v. New York

At the turn of the century, the “triumph of contract” was effectively constitutionalized: Lochner v. New York, 198 U.S. 45 (1905) held that the “liberty of contract” was a fundamental right protected by the Fourteenth Amendment. Lochner invalidated legislation limiting the workweek to 60 hours on the theory that

the general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.

The Lochner Court construed the law as an absolute interference “with the right of contract between the employer and employees,” then declared that “the general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution.” The Fourteenth Amendment’s Due Process Clause — originally intended to overturn Dred Scott and to prohibit so-called “Black Codes” — prohibits states from depriving any person of life, liberty, or property without due process of law. To the Lochner Court, the right to buy and sell labor through contract was a “liberty of the individual,” and was thus constitutionally protected.

The end of Lochner

Lochner was finally challenged successfully during the Depression, in West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), which finally allowed for a general minimum wage in Washington State — and thus overturned the maximalist version of freedom of contract.

The black codes often required “persons of color” to sign year-long labor contracts, with wages payable at the end of the year, and punished “vagrants” found in public with mandatory labor. Newly freed slaves were often prohibited from working in many occupations and from acquiring land. But even when not forced by law or force to sign such contracts, many African-Americans — with limited options — signed such contracts voluntarily.

Despite their unfair terms and limited voluntariness, Southern courts enforced these contracts. (It was, in truth, extremely difficult for African-Americans to challenge their terms, since the codes also limited access to the courts by former slaves.)

The Freedmen’s Bureau, established by Congress in 1865 as part of the Department of War, tried to mitigate the black codes. It attempted to “provide food, shelter, education, and legal protection to the recently emancipated slaves” (Hall 266), and even heard cases where the state judicial system was inadequate or lacked due process (266). According to Paul Cymbala, the Bureau also supervised contracts — although that might well have reinforced the power of “contract slavery” by encouraging freedmen to voluntarily sign such contracts.

Regardless of the racial basis of such contracts, the law continued to pretend, at least into the twentieth century, that labor contracts were the result of free bargaining between equal parties. In Allegeyer v. Louisiana, 165 U.S. 578 (1897), the Supreme Court explained that the Fourteenth Amendment guaranteed “liberty of contract” — 

the term is deemed to embrace the right of the citizen to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood or avocation, and for that purpose to enter into all contracts which may be proper, necessary and essential to his carrying out to a successful conclusion the purposes above mentioned.

Thus, the Fourteenth Amendment had shifted from a device to free enslaved labor, to one that consigned laborers to effective enslavement and terrible working conditions — provided there was a contract to that effect.

Reflecting on Avvo‘s Internet marketing conference for lawyers, Kevin O’Keefe of LexBlog writes:

I started on the Internet at AOL. I answered people’s injury, medical malpractice, and worker’s comp questions. The more questions I answered, the more work our firm got and the more successful we became. The more I listened to others and the more engaged I became, the more I enjoyed myself and the more people who contacted me to help them.

I discovered that Internet marketing was not all about me. It was about what I, as a lawyer, could do to help other people. Rather than buying cheesy yellow page ads and running expensive TV ads, I could get good legal work by helping people.

via For lawyers is the world really all about Google rankings? : Real Lawyers Have Blogs.

The lesson that good connections with people  —  arising from providing good quality content on a blog, helpful commentary in forums, useful information and replies on Twitter, to name just three examples  —  is the core of effective marketing is often lost.

You might call this “un-marketing” or “non-marketing” to distinguish it from frantic SEO, blaring billboards, or extravagant banner ad purchases. It’s deceptively simple: go out and help people, and clients will find you.

Taking this kind of approach does not mean foregoing an online presence. How can you put yourself out there and be helpful if you don’t join Twitter, don’t blog, and don’t contribute to forums? And once you start seeking out people to help, how can they and others find you later if you aren’t on LinkedIn or don’t have your own Web site?

Whatever you call it, the core message is to be helpful and do good, and the clients and customers will seek you out in return.

As a do-gooder, SEO, ad buys, and similar strategies should be done to be helpful. That is, such strategies should make it easier for people to find you, and for you to be helpful in return. They are secondary strategies, not primary ones.

For a do-gooder, primary strategies involve getting out there and providing utility to others: answering questions, being a resource, advocating positions you believe in, sharing your experiences and knowledge.

Doing good and being helpful isn’t a new marketing strategy. It’s just an old way of showing the world your worth, updated for new mediums. It takes Google’s “don’t be evil” and goes one better: go do good, and the clients will come (just don’t forget to make it easy for them!). It takes “add value” and takes it further: go be helpful!

Has this kind approach worked for you? Have better ideas? Think it’s crazy? Let me know in the comments.

Louis Menand, in his book The Marketplace of Ideas, identifies as the core problem the focus of humanities professors on replicating themselves. That is, they seek to produce new humanities professors in their own mold:

His new book suggests that contemporary higher education’s biggest problem is professionalization. The academic department has become a guild, and, like any self-regulating bureaucracy, its errand is to replicate itself. To draw on an example close to Menand, who is both a member of Harvard’s English department and an unfailingly interesting cultural critic at The New Yorker, the result is that “the university literature department is not especially well suited to the business of producing either interesting literary criticism or interesting literary critics.” What it does well, of course, is produce good literature professors.

via Louis Menand’s The Marketplace of Ideas. – By Gideon Lewis-Kraus – Slate Magazine.

To a certain extent this is true and necessary of humanities department, I believe. How else will new professors be produced other than through graduate school in the humanities? Potentially unlike other fields, there are very few professional opportunities outside of the academy. Law graduates become lawyers and law professors; engineering PhDs become professional engineers and engineering professors. But what do literature PhDs do, other than teach literature?

My thought here is that perhaps this is not really a problem with graduate school programs per se, but rather that graduate departments reflect larger societal issues. Personally, I believe corporations and government agencies could benefit from the skills and approaches humanities scholars develop, but this is a hard sell. There is a chicken-and-the-egg problem, of course, since the more specialized and focused graduate programs are on producing people skilled only in being professors, the less desirable these PhDs are outside the academy. At the same time, the less demand there is outside the university, the more focused graduate school will be on preparing their student for their likeliest career path: teaching at a university.

The solution to this  —  if there is one  —  is unclear to me, but I intend to continue developing my thoughts and ideas on this as I proceed through my PhD program.

Now that I’m on my second quarter of a PhD program in the History of Science, I am continuing to think about why I am doing this and what history  has to offer, both to me and to the world at large. One concern I already have is with the apparent obsession with the book as the primary mechanism of disseminating the work of historians.

To begin with, I’ve noticed a tendency in the discipline of history  —  common in many disciplines, of course  —  to focus inward (or backward?) and to avoid engagement with the rest of society. In departments of history right now, there is a distinct, and understandable, preoccupation with budget cuts and the lack of tenure-track faculty positions. The latter issue has caused a certain sense of crisis in history departments, especially amongst graduate students who are now consistently warned about the lack of jobs and the challenges of adjunct teaching. The former should lead to an increasing desire to justify the place of history (and its departments) in academy and society. Surprisingly, however, I have not seen a great deal of such justification as yet. Mostly I have instead seen the discipline continue to focus on the itself and its own concerns  —  to draw inwards. Academic disciplines are conservative, though, and a shift to engage with contemporary society in a real way is not easy.

That said, certainly I have seen a newer generation of historians focus on socially relevant issues, including culture, ethnicity, technology, etc. I have not, though, seen this focus reflected in the marketing or communications of the discipline. The shift to greater societal engagement, then, is not so much about contemporary issues, but is instead a problem of a failure to engage effectively with meaningful mechanisms of modern communications.

While I do believe that Twitter, Facebook, blogs, and other forms of social media are one potential means of communication yet to be engaged with fully by historians, I see this failure reflected more basically in a disciplinary obsession with full-length books (as opposed to article-length pieces or other shorter scholarly works). The tendency in my history seminars is to assign these long books for discussion. Legal, medical and scientific scholars, on the other hand, prefer journal articles to books (with the exception of textbooks, which serve a different purpose).

History values the book first. Publishing your dissertation as a book is essentially required if you want a chance at a tenure-track position. Reading at least a book per week per seminar is mandatory. Google Books is revolutionary, as it provides electronic access to books, something that is hardly revolutionary when it comes to articles!

Books can be wonderful, and can capture the sweep of history in a way that an article cannot. Such a sweeping approach, pulling the reader along for the ride, can make for good story-based history if well written, well edited, and not too caught up in historical detail. (General readers don’t want footnotes!) If more historians produces this kind of work, that might be a great thing for public understanding, and might even benefit the discipline. But those aren’t the books I’m talking about.

Most of the books I see in history are aimed at other historians (though they might pretend to be readable by the public, to try to entice a publisher to bite). Even the really good ones could often have been cut in half with some good editing. They certainly would have been more useful to me as a scholar if they had been published as a focused series of articles. And despite my sense that a good book aimed at the general public can be a great thing, wouldn’t more shorter pieces that are accessible at least to inform journalists  —  or as resources beyond Wikipedia  —  also benefit the public rather directly? I think people generally are expecting shorter, tighter, more focused written work today, for good or ill. I also think historians should stop fighting that trend, and start embracing it.

Honestly, I don’t know whether the general public would read more history if it were shorter. (Despite my hopes, I suspect not.) But I do think the work of historians could be more readily accessible to other disciplines  —  law, medicine, sociology, and so on  —  if their works were packaged in a more focused form than the book. This might go a long ways towards justifying the utility of history within the academy by encouraging other disciplines to make use of its work. Combine this greater accessibility with greater use of social media and modern self-marketing tools, along with a strong dose of the ongoing trend to engage with contemporary issues (while informing that engagement with a strong dose of historical understanding)  and I think historians and their discipline would receive a much higher valuation from both within and without the university.

So how about it, historians? Can you give up your precious books?

At least, don’t go to grad school in the humanities. That’s the message I’ve been hearing from a number of sources, including this recent article from The Chronicle of Higher Education:

It’s hard to tell young people that universities recognize that their idealism and energy  —  and lack of information  —  are an exploitable resource. For universities, the impact of graduate programs on the lives of those students is an acceptable externality, like dumping toxins into a river. If you cannot find a tenure-track position, your university will no longer court you; it will pretend you do not exist and will act as if your unemployability is entirely your fault. It will make you feel ashamed, and you will probably just disappear, convinced it’s right rather than that the game was rigged from the beginning.

via Graduate School in the Humanities: Just Don’t Go – Advice – The Chronicle of Higher Education.

But here I am, anyway, in a PhD program in history. What makes me think this is a good idea despite all the evidence to the contrary? Or am I simply delusional? (Probably.)

Recent law grads (me included) might suggest that going to law school isn’t such a good idea either, although that seems more to be a function of the current economic situation that a long-term trend, even if the legal profession is going through a “correction.” Long term, there will always be a demand for lawyers, in some form or another. (Debt is another issue that needs to be addressed.)

But a humanities graduate program is different. It’s professional training for one purpose: to do research in the humanities and, to a lesser extent, to teach in the humanities. What’s more, fewer and fewer professional positions exist, and those that do are increasingly adjunct positions with limited job security (i.e., no tenure  —  but then, who else in today’s workforce benefits from anything like tenure?).

The humanities system (at least in large public universities, which provide the bulk of positions) is set up, many say, to exploit cheap grad student labor in order to teach over-enrolled undergraduates in an increasingly under-funded educational system. The role of the traditional humanities professor is dying out.

True or not, social science or not, job prospects as a history professor are certainly difficult. So why am I in grad school?

First, I chose to focus on science, not general history. Rightfully or not, a focus on science tends to equal greater job and funding opportunities.

Second, I am not giving up law to focus on history. I fully intend to practice as a lawyer at least part time. (Diversification is important as much for individuals as for corporations, I believe.) So even if I can’t find a position as a tenure-track professor of history, I still have my law degree to draw on. I also spent 10 years in IT, and have that to draw on too.

Third, the contacts I am making through the program are valuable in any field. I am, for example, volunteering for committee appointments with senior faculty and administrators.

Fourth, I needed family medical insurance (if I lived in Canada or Europe, this wouldn’t be an issue) and the ability to spend more time at home than a first-year associate is allowed. Grad school, unlike law school, is funded and paid for.

So am I crazy? I don’t think so. But I also don’t expect to have an tenure-track position waiting for me at the end, nor is my self-worth dependent on that.

It turns out to be a remarkably efficient way of offering what Granat calls legal transaction services  —  tasks that are document intensive. For everything from wills to adoptions to shareholder agreements, elawyering has numerous advantages. Its cheaper, for example; a no-fault divorce, Granat says, might run a fifth of what seeing an attorney would cost. It’s also faster  —  customers can access the tools anytime and never have to interrupt their day to meet with someone in a distant office. Simply put, elawyering makes certain legal services more accessible.There are trade-offs, of course. “The relationship has less richness than what youd get from sitting in a lawyers office,” Granat says. “And if you have an issue thats more complex, then you still need to see a lawyer face-to-face.” In other words, its a lower-fidelity experience.But for most simple legal interactions, elawyering is, well, Good Enough. It gets the job done, even if it doesn’t let you ask every question or address every contingency. And not surprisingly, it’s on the rise. “Elawyering will be mainstream in three years,” Granat says. “I predict that in five years, if you’re a small firm and don’t offer this kind of Web service, you’re not going to make it.”

via The Good Enough Revolution: When Cheap and Simple Is Just Fine .

I have yet to see an explosion of virtual legal practices by attorneys (although I have seen a few ads for outsourced legal research, generally to India), but I think paralegals are leading the charge in this area. (See, for example, Paralegal Associates, based here in San Diego.)

The biggest worry I think many might have with this  —  a worry that might prevent this approach from being “good enough”  —  is one of trust, particularly in billing issues. With standard hourly billing (at sky-high rates), working virtually with a remote attorney is, well, scary. (Of course, how much real interaction do you really have on an hourly basis with a “regular” attorney?)

In the attorney space, there is an increased focus on alternatives to hourly billing, such as fixed-fee services for routine legal matters (wills, for example). This ties neatly in with virtual legal services, where in-person meetings are less necessary, and flat fees make good sense.

The other area that might make sense in this regard is virtual research: providing remote legal research to other attorneys, who can save time and money. I think this could be a real growth area for virtual legal services, and it keeps clients insulated from potential problems with quality, since a “regular” attorney still buffers any advice and so on.

Combine legal research with paralegal services and perhaps tech support, and you have a winner, I think.

The conventional rationale for copyright of written works, that copyright is needed to foster their creation, is seemingly of limited applicability to the academic domain. For in a world without copyright of academic writing, academics would still benefit from publishing in the major way that they do now, namely, from gaining scholarly esteem. Yet publishers would presumably have to impose fees on authors, because publishers would not be able to profit from reader charges. If these publication fees would be borne by academics, their incentives to publish would be reduced. But if the publication fees would usually be paid by universities or grantors, the motive of academics to publish would be unlikely to decrease (and could actually increase)  —  suggesting that ending academic copyright would be socially desirable in view of the broad benefits of a copyright-free world. If so, the demise of academic copyright should be achieved by a change in law, for the ‘open access’ movement that effectively seeks this objective without modification of the law faces fundamental difficulties.

via “Should Copyright Of Academic Works Be Abolished?” | Berkman Center.

An interesting proposal that I look forward to reading in more detail. My gut feeling is that, as an academic author, I would be comfortable with this, provided attribution was mandated (as with Creative Commons, which is really based on copyright). After all, while I do not expect to profit directly from any academic work I produce, I need the attribution to me to stay in order to survive in an academic profession that rewards publications and writings. If I lose the attribution, I lose that.

As I said, I look forward to reading Professor Shavell’s draft article in more depth.

Start now to generate opportunities to distinguish yourself from the competition and widen your circle of connections. Remember, relationships make the difference, especially in a tight market. You probably have more time available for research and writing now. Establish your expertise (or develop some), and give your resume some additional sparkle by writing an article on a legal topic you are interested in. via lawjobs.com Career Center – Aid Your Job Search: Get Published .

Importantly, she suggests that non-law review articles may be the best bet here:

You don’t need to write a law review article. Contact industry magazines, legal newspapers, business journals and online publications. They need new articles every month or even more frequently, and most don’t require blue book citation. Many employers are more likely to read articles in such publications than in law reviews.

This is good advice, and very similar to the idea behind blogging as a means for finding a job. By become an expert on a subject, and demonstrating both that expertise and your writing ability, you increase the chances of connecting with a potential employer. In addition, interviewing other experts in order to write your article gives you a reason to speak with potential employers or collegues without asking for a job – which can be key for good networking. Again, networking is the key – which is not always something I do very well!

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A blog can be equally beneficial to a more seasoned lawyer looking for a job after law school, as Niki Black writes at Lawyerist:

Blogging can be beneficial to the legal job seeker in many ways. Through a blog, you can:

• Demonstrate your substantive knowledge;
• Showcase your writing and analytical skills; and
• Convince prospective employers that you are on top of changes in your field.

For the attorney in search of a job, blogging will be most effective if the blog focuses on the substantive area of law in which you hope to practice.

via Start a blog, get a job | Lawyerist.

Blogging is just an updated method of networking. Certainly is doesn’t guarantee a job, but every path to show your talent and abilities takes you a little closer to connecting with the right employer or client.