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.

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.

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.

Paul Lippe, a well-known Silicon Valley GC and founder of Legal OnRamp (LOR), recently posted an essay on the Am Law Daily that essentially argues that law schools, at least in their present form, are not relevant to the future of law.

via Empirical Legal Studies: Law School 4.0: Are Law Schools Relevant to the Future of Law?.

As a recent law graduate, perhaps I am biased, but I personally believe that academics has a great deal to offer the professional community, although the current legal educational methodology could use some revisions. Academic legal research should supplement professional law, just as academic medical research does for the medical profession, but it should also produce effective and well-trained lawyers.

Despite my belief that I benefited from three years of law school, I still believe there is much to be improved. For example:

• A single final at the end of a term is not the best way to measure or encourage effective learning.
• Forcing everyone to go through moot court (appellate arguments) but not learn how to argue motions in front of a trial court judge misses what most trial lawyers do.
• Similarly, teaching exclusively from appellate courses – and barely showing students a single brief – misses another key part of what many lawyers do.
• Additionally, and perhaps most importantly, acting as if all of us will go on to be trial lawyers at large firms neglects what many of us will really be doing during our legal careers – which is in reality is hugely varied, ranging from general counsel to trial attorney to judge to venture capital to academic researcher to, well, anything.

A professional school that fails to teach the profession  —  in at least a few varieties and forms  —  as it is practiced today is not much of a professional school, however effectively it teaches students to “think like a lawyer.”

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Facebook

Facebook is a social networking Web site focused on connecting people with each other. Many of us have now experienced the joy (and occasional pain) of (re-)connecting with people from high school, college, or law school through the site.

Many people have decried the negative aspects of Facebook in the job search, primarily the ability of potential employers to find personal information (such as drunken party photos, political/social leanings, etc.) out about you through the service. Although this can certainly be a problem for a naive individual, it should not keep you from using the service, provided you: (1) do not post photographs (or better yet, do not participate in situations) that you would derail your chances of employment (drunkenness, drug use, etc. – this is particularly true for legal professionals) and (2) keep your personal life confined (through various Facebook limiting mechanisms) to those who know you. If in doubt – don’t put it online.

From a job seeking perspective, Facebook will not find you a job. It is not Monster.com or similar job search site. Instead, it is an extension of old-school networking – meeting people, connecting with people, sharing with people. Use similar approaches on Facebook that you would use in person, but remember: Facebook is focused more on personal connections that professional ones, so treat it accordingly.

• Do not attempt to “friend” business connections who you barely know via Facebook. (Save those for LinkedIn, next on the list).
• Do let your actual friends know via Facebook that you are looking for a job.
• Do search for people you may know who do work like you wish to do, or who work where you want to work. You may be surprised that you actually know someone who can put in a good word for you.

LinkedIn

LinkedIn is like Facebook for professionals, minus the games, the sharing, the pictures, and everything else that makes Facebook so “sticky.” But these limitations are its biggest asset, because they turn it into a truly professional zone. Everything you put on LinkedIn should be professional, with only a passing nod to your personal life (to make you real). In terms of posting information to LinkedIn, it is best to think of it as an in-depth, network-enhanced resume. It is not for arringing to meet friends at the movies, nor for sharing your vacation pics to Cancun.

Unlike Facebook, LinkedIn is the perfect place to connect with business acquantances who you do not know well. In this sense, think of LinkedIn as your social Rolodex of business contacts, with recirocal connections, recommendations, and easy searching.

• Do connect with those you meet.
• Do not connect with people you have never met, unless you arrange an introduction (supported by LinkedIn). To do otherwise is to invite trouble and do your reputation more harm than good.
• Do update your status on LinkedIn with professional information related to your job search.
• Do search for companies and look for people you know there.
• Do pay attention to “friend-of-friends” who you may be able to be introduced to through LinkedIn. This is a very valuable part of LinkedIn networking!
• Do get recommendations from current and former co-workers. A LinkedIn profile of an active job seeker with no recommendations is potentially problematic, as it suggests that no one wants to recommend you!
• Do keep your profile updated with current information.

Plaxo

Plaxo is in some ways like LinkedIn and Facebook: it connects people with each other. It has a more professional bent than Facebook, and in that way is more similar to LinkedIn (including an online profile hat is more like a resume than Facebook’s, for example). Its current incarnation is more focused on “lifestreaming”: gathering up and synchronizing your online life in one place:

Plaxo is about synchronizing all that’s important to you in one single place. It’s about staying in touch with all those who you care about… your family, your friends and your business contacts. With Plaxo’s Pulse, we keep you up to date with what your friends, family and Business contacts are up to.

• You can Share photos, videos, reviews and more…
• You can share content from the websites you use like Flickr, YouTube, Digg and a growing list of activity stream sites you can activate.
• You can represent yourself on the web with your own profile. Choose what to share and with whom.
• And with the Plaxo Address book, get the information you need for the people you know and Sync it to places you already use.
• You Plaxo calendar syncs with Yahoo!, Gmail, Outlook, Mac and a growing number of sync points to make sure you don’t forget what you’re doing.

Plaxo is all this in one place and that’s why it’s the most efficient and fun place to be in. And most important of all, you decide who gets to see what.

It is worth it to establish a Plaxo profile while job searching, and keep it updated. (Not having recommendations on Plaxo is also less of a problem, as long as you have them on LinkedIn.)

Plaxo’s aggregation support for your online activities is powerful, but has the potential to mix your personal and professional lives together. Thus, be very careful of this.

• Do establish and maintain your profile.
• Do use the aggregation and synching tools, if they are useful to you.
• Do not mix personal and professional updates.
• Do use Plaxo’s tools to contain your personal updates to your personal friends.

Twitter

Twitter is a newer contender to the social media landscape. It permits posting short status messages, which may include links to articles, blog posts, pictures, etc. In a professional context – remember, you are job seeking – these status messages should stay away from “crazy party last night” and steer more towards the “excellent article, I recommend you read it.”

Unlike Facebook, LinkedIn, and Plaxo, connections in Twitter are one way: you can follow people, or they can follow you, but reciprocity is not required.

To find useful people to follow, look for those in your field. A good place to start is LexTweet, which aggregates legal Tweets – consider joining as well and participating.

My recommendations:

• Do read about how others are using Twitter professionally.
• Do keep your postings professional.
• Do mix in some personal updates to be “real,” but remember – a potential employer may be reading them, so be judicious.
• Do “add value” by Tweeting useful information.
• Do not use tools to mass add followers, or similar “spammy” behaviors.

JD Supra

JD Supra is a different alternative to the above sites. Unlike the four above, it is focused exclusively on the legal community:

As a legal professional, you post your court filings, decisions, forms and/or articles to JD Supra’s database, a free tool for legal research. You also create an in-depth professional profile that is freely available simply by browsing or keyword searching, or via link from any of your posted documents.

A profile on JD Supra provides a useful addition to your LinkedIn and Plaxo profiles – but that’s not the core value of the site. The main point is to demonstrate your value to potential employers (and clients, for that matter) by sharing your work via JD Supra: filings, briefs, articles, etc.

At first glance, it may seem like you are giving your work away for “free” – but in reality, you are receiving value: respect. Your value as a lawyer, after all, does not come through directly selling your prior work – but rather in using your prior work to sell yourself.

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NPR brings us some useful new “rules of the road” for those seeking jobs in today’s economy – I think this goes for lawyers as much as anyone. Just remember, while technology has altered some parts of job seeking and recruitment, the broad essentials (a good resume, networking, research, preparation, interview skills) remain the same.

Hiring managers say they stay clear of candidates who make these digital job-seeking mistakes:

• Not having an updated profile, with recommendations, on sites like LinkedIn or similar sites relating to your line of work
• Having a husband-and-wife e-mail address
• Having an AOL address. Some executives say those are very outdated.
• Not doing extensive research about the company, its culture and the position you’re applying for
• Not filing your resume digitally, even if you bring paper backups
• “Cold” e-mailing executives with whom you’ve never made a prior connection, either online or in person
• Asking an executive you’re hoping will hire you to be your “friend” on Facebook

via Job Seekers Find New Rules Of Recruitment : NPR.

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Jordan Furlong at Slaw.ca suggests that the current trend of big firms paying associates not to work for them is indicative of a larger crisis, created by an educational system that doesn’t provide new lawyers with the skills they need:

[T]he profession is going to go through a crisis, one triggered by a growing buildup of law school graduates who can’t find work. Year after year, we’ll produce more new lawyers than the market will hire – the large firms won’t be taking on nearly as many, while legal talent demand overall will narrow to lawyers with proven skills and/or experience. And these masses of unemployed law graduates are going to make us face an ugly truth we’ve been avoiding for years: we’re doing a terrible job of training our future lawyers.

via The Canary In Our Coal Mine >> Slaw.

As a recent law graduate, I certainly feel that I would struggle at certain aspects of practising law at this stage of my career. Many of these weaknesses are very practical: managing clients, knowing what documents to submit to a court, conducting discovery, etc. Some of these are, quite frankly, left to paralegels even by the most experienced lawyers, a practice that may be efficient, but can lead to paralegals knowing more about the “actual” practicalities of law that lawyers!

Law school made me a better legal researcher, reader, writer and thinker. These are critical legal skills, but not the only ones. My time externing for a judge gave me more “real” experience, as did my summer internship. Clinics are similar in their practical skills training.

Perhaps we need to officially accept the need for an apprenticship-style program as part of the law school system? (Either within the 3-year program, or a required component before taking the bar.) This kind of on-the-job training is the best way to get the necessary skills to practice, and making it part of legal training would remove the dodge of getting clients to pay for turning raw lawyers into minimally-effictive ones.

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John Pfaff has been writing a series of articles for PrawfsBlawg over the last month or so, focusing on “Empirical Legal Scholarship” (ELS). ELS brings empirical social science research, including especially statistical studies, into the realm of the law. (Law & Economics would be another, related attempt to bring math and the law together.)

One of the problems he points out in his introductory piece is the lack of formal training that many legal academics have in statistics (as contrasted with, say, theoretical economists). Certainly most of the lawyers, law students, and law professors I know (though far from all of them) seem to come from a humanities background (with the exception of those working in the patent field, which tends to attract those from a more technical or scientific background). While this often leads to the ability to deal with a wide range of issues in an effective manner, it does make it challenging for some of us (I include myself in this, since despite my background in software development, academically I come from the humanities) to grapple with statistical data in an effective and sophisticated manner.

In the courtroom, this is supposed to be solved by the adversarial process, which requires each side to present experts capable of explaining their analyses to a (potentially non-mathematically trained) judge and a law jury. Daubert and Frye increasingly put the initial screening burden on judges, and this has increased the benefit (and, I think the need) for judges to grasp sophisticated analyses presented by experts. I have seen this struggle in the employment discrimination context (where courts have grappled with how to deal with data that may or may not demonstrate systemic discrimination) and, perhaps most notably, in the torts context, especially when dealing with pharmaceuticals (how should epidemiological data be treated, for example?)

Professor Pfaff writes:

Empirical evidence has long posed a problem to the adversarial, common law system. As Tal Golan points out in Laws of Men and Laws of Nature, courts have struggled for at least three centuries with how to use complex scientific evidence in the courtroom, and the problem is only going to get worse in the years to come. Lay judges and lay jurors have never had the epistemic competence to understand technical scientific and empirical evidence, and thanks to the technological revolution of the past three decades the volume and sophistication of such evidence is only going to grow.

(Incidentally, Tal Golan is the primary professor I’ll be working with when I begin in the History of Science PhD program at UCSD in the fall.)

Outside the courtroom, in the world of law journals, it can be hard for student editors untrained in statistics and data analysis, to differentiate good empirical studies in legal articles from bad ones. Adding in peer review might arguably help, but only if the “peers” involved themselves have a background in such empirical research. Otherwise, law professors may be no better than young law students in dealing with statistics—and, given that many younger students are more comfortable with technology (having grown up with Excel, for example), may even be worse at it.

Professor Pfaff believes that “[s]ome sort of reform is inevitable, and I think a shift towards courtroom-EBP is the way to go.” This means focusing on an “evidence-based” policy (similar to evidence-based medicine), as he describes in The Path Ahead: Evidence Based Empirical Work. The point is to apply the scientific method and to critically evaluate the quality of evidence, data, and studies.

In addition to looking to evidence and its quality, this path ahead means doing overview (and synthesis) studies to confirm a view of the big picture, instead of extrapolating from individual studies to larger answers without checking alternatives across various studies and approaches.

I recommend reading the series of articles (and the comments) and PrawfsBlawg.