Professing Passivity in AALS Class Conflict

Why did law faculty delegates to the Association of American Law Schools (AALS) House of Representatives vote to defeat a non-binding resolution to relocate meetings in the event of labor disputes? The resolution aimed to encourage AALS staff to seek  contract language that would allow for cancellation when conference hotels are subject to boycotts, picketing, or strikes.   Many sessions in this year’s annual meeting of law faculty in San Francisco were relocated or cancelled to avoid the Hilton service workers’ boycott, but the AALS leadership claimed its contractual obligations to the Hilton precluded it from moving the event (and it required unanimous approval of each section’s executive committee for relocation of individual panels).

Since the American Political Science Association was able to get out of its contract for a similar meeting without incurring contract penalties, using an escape clause allowing cancellation for labor disputes, it seems that we lawyers are constrained not by law but by the politics of our profession.   It seems this politics takes the guise of professional passivity.  I doubt there were many impassioned speeches openly supporting the Blackstone Group’s desire to use its rising hotel profits for purposes like enhancing executive pay rather than for alleviating the rising health care costs facing low-income hotel service workers. Instead, opponents of the resolution seemed to claim that law faculty and the AALS have little power to adjust their professional meetings for such contingencies.  The vote was 61-24 law schools against the resolution, with 46 law schools abstaining.  That large abstention rate suggests a further sense of powerlessness — perhaps some delegates were afraid of career repercussions for taking a stand or perhaps law faculty simply do not know or care enough to use their power to stand in the way of a legal system geared to the upward redistribution of resources, or perhaps the press of other demands on our time and attention makes it easiest not to fight this battle (I personally regret not paying careful enough attention to effectively organize  support within my own institution).

Among those who did take a powerful stand, Emma Coleman Jordan — a past president of AALS — spoke out eloquently and knowledgeably.  Excerpted below are some of her comments responding to opponents of the resolution:

The resolution will reduce the flexibility of future Executive Committees by placing “inappropriate limits” on Executive committee action.

This argument assumes that if the resolution is adopted, the Executive Committee will be required to cancel a hotel contract.  There is no such mandate proposed, even in most the extreme circumstance of a last minute labor dispute where there are no reasonable alternatives. The resolution is non-binding and therefore would only serve as policy guidance for the Executive Committee, The Executive Director and staff in carrying out their duty under Bylaw 3.1 to determine the “time and place” of the Annual Meeting.

The resolution does not impose a mandatory, immutable requirement to ensure that the AALS Annual Meeting, workshops, or section programs avoid holding meetings at hotels with ongoing labor unrest.  The resolution does however, state the “sense of the AALS Community” that the Executive Committee “should ensure” and “should negotiate for protective language” in future contracts.

The resolution is precatory.  It is perhaps the mildest prophylactic action that members could take to guide the discretion of future Executive Committees and Executive Directors on this issue.

Implementing the Resolution Would be Costly

The current situation with the Hilton Hotel is illustrative of the costs of failing to incorporate the norm of explicit concern for the labor disputes for low wage workers into the directives that guide future Annual Meeting planners. One could argue, that the status quo is costly. The HOP memo identifies the costs of the worst case scenario under the resolution: an unexpected, sudden labor action in the weeks before the Annual Meeting.  If the resolution is adopted, the worst case scenario would be less likely to have the dramatic impact of raising membership fees by 50-80%, reducing attendance, and other follow-on consequences of changing the location of the meeting at the last minute.

The economic cycle in the nation affects the AALS Annual meeting contracting process too. The long lead times for meeting contract negotiations means that there will always be unforseen economic risks associated with such long-term contracts.

One way conventional businesses protect themselves from future uncertainty is with insurance and futures contracts(where applicable).  If such marketplace protections are available for a non profit such as the AALS,then this resolution provides every incentive to explore the pricing for this coverage to mitigate losses.

The Status Quo is Costly

During several years the annual meeting has been disrupted by faculty members concern to avoid crossing informational picket lines in San Francisco.  Without a clear policy to guide the Executive Committee, and Executive Director we find ourselves having to respond to this situation without an important tool in the arsenal of the Executive Committee, an opt out clause without penalties. As the latest Hilton controversy illustrates, silence on this question can incur the costs of having to respond with last minute relocation and program placements because of member distress about entering hotels with active labor disputes.

The fact that new members are added to the Executive Committee every year means that contract negotiations are handled exclusively by the Executive Director and the Managing Director. When we add the fact that Executive Committee members are always, distinguished, but busy, members of the legal academy, the need for explicit policy guidance on the matter of how to handle potential labor disputes in meeting contracts, is exactly the type of subject the history of the association suggests is most suited to House of Representatives Resolutions. The fact that new volunteers are added to the committee each year means that no member now on the committee was on the committee when the contract covering the 2011 Annual Meeting was negotiated.  Thus, even the most diligent, smart, and wise Executive Committee will not provide the structural continuity and institutional memory required to insure that membership norms on labor unrest are carried out in a stable and predictable way.

AALS Reputation and Meeting Site Competition

Over the years the AALS reputation has extended far beyond its reputation as a reliable contracting partner.  While this reputation is important, it has often been assigned less weight in comparison to other deeper social values.  The AALS expresses its institutional commitment to “fostering justice…in the legal community” in By-Law 6-1, stating its “Core Values”.  This commitment to justice has included norms of racial, gender and sexual identity equality, even when expressing those values might incur costs of litigation or protest from those who disagree with the Association’s core values.  AALS has been a leader in the society at-large, through its leadership in the legal academy, on issues as significant and controversial as racial integration, affirmative action, and sexual identity equality in the military.  AALS has a well-deserved reputation for advancing justice in American society.

The present controversy raises another set of issues that many members, especially Georgetown University Law Center faculty, the sponsors of the resolution, consider to be equally important.  Fair pay and benefits for low wage service sector workers.  Thus, during the past two decades when the economic inequality between the highest wealth and the lowest wealth citizens has reached the greatest difference since the Great Depression, questions of justice in the economic realm demand our leadership as well.

As the actions of the American Political Science Association demonstrate, the competition for valuable convention space in popular venues may well expand to include demand by convention planners for the end of labor disputes with service workers.  Moreover, in the short-term, the economic downturn has resulted in more vacancies in hotels in major cities, so that the terms of contracts executed in a more prosperous o
economic climate are more open to renegoation.

For another powerful statements by law faculty supporting the resolution, see the comments by Paul Secunda, Rachel Arnow-Richman, and Kenneth Dau Schmidt on the Workplace Law Prof blog.

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This entry was posted in Events, Labor, Law Schools, Uncategorized. Bookmark the permalink.

One Response to Professing Passivity in AALS Class Conflict

  1. Martha McCluskey says:

    My colleague Jim Milles notes that the question of law faculty support for unions is important not just because of concerns about low-income workers but also because of recent political attacks on unionized public employees in general — including faculty in public higher education. See the Inside Higher Ed article, Turning on the Faculty at http://www.insidehighered.com/news/2011/01/21/public_college_faculty_fear_loss_of_public_support.

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