In 2021, only 11.6% of the workforce in the United States was unionized — down a half a percentage point from 2020. But after decades of decline, there are also hopeful signs for unions and the rights of workers. The rise of the gig economy, years of flat wages, and the economic turbulence unleashed by the Covid-19 pandemic have given rise to a new movement, from Amazon warehouses to graduate schools, with a particular focus on how to protect workers’ rights. In this moment, what can law schools do to advocate for workers, from scholarship and policy papers to clinics and classes?
Three experts talk about the past, present, and future of this movement with Berkeley Law Dean Erwin Chemerinsky: Sameer Ashar, a clinical professor of law and associate dean for equity initiatives at the University of California, Irvine, School of Law, and director of the school’s Workers, Law, and Organizing Clinic; Sharon Block, a professor of practice and the executive director of the Labor and Worklife Program at Harvard Law School; and Catherine Fisk, Barbara Nachtrieb Armstrong Professor of Law at Berkeley Law and faculty director of the school’s Center for Law and Work.
More Just from Berkeley Law is a podcast about how law schools can and must play a role in solving society’s most difficult problems.
The rule of law — and the role of the law — has never been more important. In these difficult times, law schools can, and must, play an active role in finding solutions. But how? Each episode of More Just starts with a problem, then explores potential solutions, featuring Dean Erwin Chemerinsky as well as other deans, professors, students, and advocates, about how they’re making law schools matter.
Have a question about teaching or studying law, or a topic you’d like Dean Chemerinsky to explore? Email us at email@example.com and tell us what’s on your mind.
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ERWIN CHEMERINSKY: Hello, I’m Erwin Chemerinsky, Dean of Berkeley Law. And this is More Just, a podcast how law schools can play a role in solving society’s most difficult problems. In 2021, only 11.6% of the workforce in the United States was unionized. And that was down a half a percentage point from 2020.
But after decades declined, there are also hopeful signs for unions and the rights workers. The rise of the gig economy, years of flat wages, and economic turbulence unleashed by COVID-19 giving rise to a new movement. From Amazon warehouses to graduate schools, there’s a focus on how to protect workers’ rights. Amid this movement, what can law schools do to advance workers’ rights, from scholarship and policy papers to curricular form the clinics and classes?
I’m joined by three distinguished experts on this topic. So I’m grateful to each of them for joining for this discussion. Sameer Ashar is a clinical professor of law and associate dean for equity initiatives at the University of California Irvine School of Law. Sharon Block is professor of practice and the executive director of the Labor and Worklife Program at Harvard Law School. And Catherine Fisk is the Barber Nachtrieb Armstrong professor of law and faculty director of the Berkeley Center for Law and Work here at UC Berkeley’s School of Law.
I think the place to start is by asking the question, what are the problems that workers in the United States face that law schools should be focusing on now? Sameer, if I could start with you.
SAMEER ASHAR: Thank you, Erwin, for having me on. And I feel very privileged to be on a panel with Sharon Block and Catherine Fisk. With regard to the problems facing workers, I think both Catherine and Sharon can speak with greater depth and knowledge of the campaign to constrain organizing of workers in the workplace over a 75-year-long period.
I’ll just say that it’s been a 70-year-long campaign to diminish worker power not just at the bottom of the wage scale but up and down the wage scale. And it has been unrelenting and entirely too successful. I’ll note two other maybe more kind of macro conditions that face workers in the current moment.
One is globalization. That is the free movement of capital across borders without corresponding rights for migrants. So individual workers are constrained by immigration laws and by national borders, while capital is able to freely move about from nation to nation, seeking out the best legal regimes in which to do business and in which to exploit labor and violate environmental laws or environmental– the norms that we need or preserve the environment.
The second kind of more macro condition that I think is important to understand is neoliberalism. If we understand it as the latest stage of capitalism, it basically enlarges private power and depoliticizes the social. And so we think that the appropriate way to understand workers’ rights is about a bargain that individual workers make with their employers.
And we don’t put the rights of workers into a larger political-social context in the way that took place mid-20th century during the New Deal settlement and with the creation of the National Labor Relations Act. And this has been, again, part of this 75-year-long campaign to kind of enlarge private power and depoliticize the social. Just one more note from these macro conditions– COVID basically, and the pandemic, reveals what the outcome of these macro conditions and this 75-year campaign is.
That is the most essential workers– Black and Brown workers, especially– have the least power and the greatest exposure to sickness and death. They’re subject to autocracy at work. And their lives basically have less value socially, politically. And they are getting sick in the workplace. And they are dying.
And I can speak to several clinic projects, where we see some of these conditions in operation. And so it kind of reminds me of Ruth Wilson Gilmore’s definition of racism– that is the state sanctioned or extralegal production and exploitation of group differentiated vulnerability or premature death. And, again, Black and Brown essential workers who are basically exposed to premature death as a result of the lack of power that workers have in the current context.
So I’ll leave it there. But those are some of the conditions facing workers that we need to grapple within the legal profession and in law schools as well.
ERWIN CHEMERINSKY: And I do want to come back and hear about the clinic programs that you were alluding to. But first, I want to hear from Sharon and from Catherine about your views about the problems that workers face and what law schools should be focusing on. Sharon.
SHARON BLOCK: I’m happy to jump in. I definitely want to hear what Catherine has to say too. I think at this point, as Sameer described this sort of 70-year-long path to where workers are in our economy today, the needs on the ground– that unions, that other kinds of worker organizations, that lawyers who provide direct services to workers are just so overwhelming and so urgent. What I try to think about is, how can we at law schools who care about these issues– what is an unmet need that we can fulfill? We’re probably, outside of the clinical context, not best positioned to provide that urgent direct support.
But we can do that work that maybe takes a little bit more time and a little bit longer horizon, sort of the policy vision, so that while those immediate needs are being met, we’re still building, hopefully, towards structural or systemic policy changes that can alleviate these really chronic and urgent conditions that are facing workers today. And so that’s certainly one thing that we’ve tried to do at the Labor and Worklife program.
ERWIN CHEMERINSKY: Well, I want to hear much more about that and what kind of long-term project you see law schools should engage in. But let me first– Catherine, you haven’t had the chance to speak to this question.
CATHERINE FISK: As Sameer said, and as Sharon knows from her work, labor law in the United States is broken in every possible way. On paper, workers have the right to form or join labor unions and to engage in other concerted activity for mutual aid or protection. That is a direct quote of an 80-year-old statute.
In practice, that right is almost impossible to enforce in the face of determined, organized, and well-funded employer opposition. The fact that workers at an Amazon warehouse in Staten Island recently won a union election is almost a miracle given the millions and millions of dollars that Amazon spent to prevent them from exercising their statutory right. But other aspects of labor law are also broken.
California, on paper, has excellent worker protections. But it’s very hard for some workers, especially undocumented workers, to access their legal rights, even though in California the Minimum Labor Standards laws apply to all workers without regard to their immigration status. There have been reports of ICE agents showing up at hearings where undocumented workers are trying to recover the wages for work that they performed that was stolen from them.
And an ICE agent shows up to arrest them at the hearing. When government offices are not safe spaces for workers whose rights have been violated, that’s a broken legal system. There are many solutions that we can talk about for these problems.
But it’s little wonder that we have the greatest economic inequality ever in US history at this time, where we’ve got law on the books that should address this but doesn’t meaningfully protect the most vulnerable and exploited workers among us.
ERWIN CHEMERINSKY: Let me follow up to each of you. You’ve described such deeply intractable problems. Sameer talked about the problems of globalization, where capital can cross boundaries easily but labor can’t. He talked about the problems of liberalism. He talked about we’ve been enlarging private power and depoliticizing the social.
Talked about how labor was broken in every way. Talking about the enormous inequality. These problems seem so hard to address. Let me just ask you before we start talking about specifics, is there a role for law schools, given how deeply embedded the problems you’ve described are in our society? Can law schools really make a difference with regard to this? Catherine, I’ll start with you now in light of the things that you just said.
CATHERINE FISK: Absolutely, law schools can play a role. We play a role in everything we do. In our teaching, we take students who might have experience with exploitation themselves as workers or maybe, as I was hearing about one Berkeley student whose father was a union organizer when she was young– the organizing campaign did not succeed because of employer opposition. He was fired after the union election. And that plunged the family into poverty.
You can take a student whose experience was that and show them that labor law doesn’t have to mean that a family goes from a working class to a destitute situation by helping them see how they as lawyers can make a difference. We can do it in our scholarship, both the long-form research that we law professors do, where we write about, for example, how the complex coronavirus relief legislation that was enacted in March of 2020 could be a blueprint for long-overdue fixes to our social insurance system so that, for example, app-based ride hailing and delivery companies can’t just opt out of all basic minimum protections. We can do it, of course, in our public and pro bono legal work, where we can involve students in projects.
And then, of course, law school centers can be hubs of research to help legislatures identify and address problems, where we can be thought leaders for how legislation can be more effectively designed or implemented, where we can be partners with organizations and government agencies that collect massive amounts of data, for example, on what workers are paid and be a kind of a one-stop shop for information about pay inequity, about non-compliance with minimum labor standards, about how we could redesign unemployment insurance to address the next pandemic, which we know will happen, or the next massive economic downturn.
ERWIN CHEMERINSKY: I don’t know, Sharon or Sameer, if you want to address the question more generally about are the problems so intractable that they’re beyond the scope of law schools or if we should begin talking about what clinics and centers are doing.
SHARON BLOCK: One thing I think where law schools can be very helpful is the fact that we’re situated within universities. And so we can bring together cross-disciplinary teams to address these intractable problems. I mean, so in the clean slate for worker power project that we did, we brought in our colleagues who were economists, sociologists, technologists, our colleagues at the Kennedy School who are our public administration experts. And so I think having all of that expertise in one location– and, hopefully, we all know each other or have a certain collegiality in sharing expertise– is really important, because these problems are so intractable.
I really believe labor lawyers alone are not going to solve the problem of what the future of labor law should be. So I think that’s a really important value, that being at the law school you have this reach across all these disciplines.
ERWIN CHEMERINSKY: It’s a great point. Sameer, I’d be interested in both your thoughts in general, but also you alluded to earlier some of the clinic projects that you’re doing, especially related to COVID. Be very interested in hearing about them.
SAMEER ASHAR: Sure, Erwin. I mean, just in response to your earlier question about the intractability and whether law schools have a role I guess my– I don’t want it to sound too glib. But my immediate response is that we do play a role. We are playing a role in creating the intractability of the problems that we face, that workers face.
I’ve been reading this book, The Code of Capital by Katharina Pistor. And, basically, she argues that lawyers are being trained in law schools– at all three of our law schools and much of legal education– to serve as coders for capital, to find new and more kind of cutting edge ways in which to protect private property and to put it beyond the reach of, again, what I was calling the depoliticized social earlier so that we can’t invest in the social insurance schemes that Catherine was referring to. And that’s just a fact.
Harvard, Berkeley, even Irvine, now, we send more than a majority of our students to large corporate law firms that are generally on the side of employers. And even if you’re not doing employer defense work, you are doing work that expands corporate power, that has fairly negative impact on labor power. If we accept that– and one could argue with it. But if one accepts that, then the question is, well, how do we begin to break the spell of the code of capital in legal education?
How is it that we counter the overwhelming culture that is largely built to serve future employers of our students. Of course, we all want our students to be employed. And we want them to have good-paying jobs. And we want them to donate to our schools. Right?
That’s all something that we believe in, as institutionalists. The problem is that it works backward into every crevice of the law schools that we work at– curricular and extracurricular. And so when I think of the clinic, the worker law and organizing clinic that I just started– did a soft launch at UCLA a few years ago. And I did a real launch back at UC Irvine in the fall, 2021. I think of it as a place where we can create a little bit of space in the curriculum for pro-labor, pro-worker students to find each other and to start working on projects together.
And so that is the way in which I aim to kind of, quote, “break the spell” of the sort of coding for capitalism or coding for capital that otherwise prevails in most of the rest of the curriculum. In terms of concretely what we do, we try to provide the very scarce legal resources that we have, right? Clinics, generally, are quite low volume practices. They’re not high volume practices that we try to provide those scarce legal resources to do several things.
One is to support nascent organizing by nonunion worker formations. As you mentioned, at the outset, Erwin, so much of the economy in the workforce lives outside of unions today. What is it, the 89% or 88%? And so particularly in the low wage sector, a number of worker centers that Catherine and I have written about together, and separately, have risen up in various sectors. And so we, in the clinic, try to provide legal resources to back some of those non-union formations.
Some of the organizations we’ve worked with include the National Day Laborer Organizing Network, Rideshare Drivers United, Warehouse Workers Resource Center– are just some of the exemplary organizations that we’ve worked with. We also try to support creative organizing by unions. So I think especially our collaborations with the UNITE HERE Local 11 in Southern California and Arizona that’s been visionary in terms of leveraging public policy to strengthen the organizing that they’re doing in hotels and food service operations. So we’ve been working on projects with them as well.
And then, finally– and this is not just a labor clinic. But in a community economic development clinic, you can think of supporting worker cooperatives, which are really, really– you’d have to say prefigured and small but an attempt for workers to begin to take some control over their economic conditions over the means of production, one might say, with lots of constraints. Obviously, not yet the answer to the lack of worker power and sort of economic inequality but maybe prefigurative– working with smaller worker cooperatives to help particularly migrant workers find new ways in which to profit from their own labor.
That’s a broad description of the clinic, Erwin. I can talk about it an example or two if that would be helpful.
ERWIN CHEMERINSKY: I think if you could pick an example or two of clinic projects, it might help make more concrete what you’ve just been describing.
SAMEER ASHAR: The case that I think about that we picked up last semester– we’re working in collaboration with the United Farm Workers in the Central Valley, of course, building on efforts that Catherine started when she was at UCI. Workers came to the UFW because they needed help during COVID.
They were working at a food processing plant in the Central Valley just outside of Bakersfield. One of their co-workers had died from COVID. The company was denying that person had died from COVID. The company was not taking all the steps that were required of it under both the state and the federal mandates to protect workers.
And they were forbidding workers from talking about the fact that COVID was spreading within the workplace. I think it’s a plant of about 450 to 500 workers. The workers came to the UFW for assistance. UFW was not going to organize that particular facility for a whole bunch of different reasons. But they wanted to do something to help them.
Initially, they filed a National Labor Relations Board charge, which didn’t go anywhere. And we were brought on to think about whether or not some other legal action might be appropriate. And so a team of students over the course of the last year have been working with those workers, working with the organizers, learning their story, putting it in the forum state court complaint litigation.
Actually, I didn’t finish the story. The employer was not taking actions to protect the workers. The workers then on their own, as we see oftentimes now, even in non-union contexts, did two one-day walkouts, where they left the workplace and stopped working on their own without support from a union.
And when they returned, the employer basically fired the leaders of that effort. So the leaders of that effort are our clients. And we’re getting ready to sue on the basis of full discharge in violation of public policy and retaliation. So that’s the kind of work that students are working on. Again, it creates a space for students who care to learn about what is happening but also to figure out affirmative things that they can do to put themselves on the side of workers, who are really beleaguered and under a great deal of pressure.
ERWIN CHEMERINSKY: That’s really helpful. Sharon, earlier you talked about how the centers that exist within law schools can be laying the groundwork for a much longer term strategy. You mention in passing the Clean Slate Project. Be fascinated to hear your perspective were generally about what senators could do but perhaps also about the Clean Slate Project as an example.
SHARON BLOCK: Sure, happy to talk about it. And I’ll just preface it by saying, having spent most of my career in public service and government, I have seen on that side the value of those kinds of outside efforts to come up with those sort of longer term, sort of more comprehensive policy frameworks because the worst thing that can happen when you’re a policy person in the government is to have an unexpected moment where maybe you can move something, whether it’s legislative or an idea for an executive order and you don’t know what to do. And you just don’t have the time in those kinds of jobs when you’re dealing, especially these days, with those– I just came out of the Biden administration.
And you can just imagine what the day to day is like. So knowing that there are folks who can turn to who have that time and mental space to think about those bigger constructs so that you can meet that moment if it does arise– it’s just a partnership that is the only way that you have any chance of moving any kind of new policy idea, I think, when you are in the government. And so that was really some of the impetus behind Clean Slate.
I work on it with my colleague, Professor Ben Sachs at Harvard Law School. We’re not naive. We knew that comprehensive major labor law reform was not going to move immediately but did think it was important that we helped with an effort to create that bigger picture, that longer term vision– one, of what a really empowering labor law could look like. Because one of the premises of Clean Slate is, as Catherine said, because she was a key part of clean slate, is that our current labor law is completely broken.
And so we said, if we were starting from a clean slate, if we were starting on a legislative clean slate, how would you build a legal structure that would actually be empowering, that would meet the moment and maybe a few moments into the future. And so we wanted to do that because we thought it was important to have that big, long-term vision in case that moment comes up. But also, if there are opportunities for incremental change, you want to make the most of those moments. And you can only do that if it’s a part of a rational plan moving toward something bigger than maybe only the small moments that our sort of broken legislative process allows for now and sadly, probably, into at least the foreseeable future.
But at least you can start sort of putting one step after another, even if you can’t do the big pieces. And so that’s what we did with the clean slate. We came up. It was January 2020 we put out a report, luckily, right before the pandemic shut everything down with a comprehensive vision for this empowering labor law.
And the way we got there was involving literally hundreds of people from around the world– other academics like Catherine but also union leaders, workers center leaders, folks leading grassroots organizations, leading think tanks, again, all different disciplines. We brought everybody together just to say, let’s be in this space and think differently and learn from each other. Process took more than a year.
And one part that was one of my most favorite parts of Clean Slate was that we had about 20 law students who served as research assistants. So we had all these folks involved. We broke folks up into working groups. We assigned the law students to be research assistants to each of these working groups, which was great for the working groups.
It was great for the students because they got to learn and dig in on different aspects of labor law. But it was also great because of the relationships that I could just see developing between the research assistants and the folks in the working groups. And some of the students actually kept in contact and got career advice and just, Sameer, to what you were saying of looking for those different role models where they could go with their careers if they didn’t want to go the big, long route but just didn’t have the contacts.
And often, I find, especially in labor, even with a place as amazing an office of public interest advising like we have at Harvard, those contacts in the labor movement and then if you go to sort of what people call the alt-labor movement, those sort of professional career advising contacts often aren’t there. And so that was just a really gratifying part of Clean Slate– to be able to enable those relationships. And so now that I’m back at the program, we’re looking at what the future of Clean Slate is to build from that vision of a comprehensive reform, to dig deeper, and to see what other policy gaps in the area of labor law reform we can help fill in that same collaborative kind of manner.
ERWIN CHEMERINSKY: That’s really helpful. Catherine, you in a couple of faculty members have just in the last year or so created the Berkeley Center for Law and Work. What are you trying to accomplish with this center? And how does it fit with what you were talking about earlier in terms of labor law being broken and how we can fix it?
CATHERINE FISK: CLAW, as we call it– Berkeley fans can think of a bear claw if you like because the bear is the mascot of UC Berkeley– was inspired, in my thinking, in part by the Clean Slate Project at Harvard, which– Sharon won’t say it, but I will. It changed the conversation about what labor law reform looks like. And the conversation will never go back to where it was before Clean Slate said, we need to think big.
And so CLAW tries, based in California, to do something similar. But because California has political possibilities that the nation does not, we’re a little more California focused. CLAW aspires to achieve things in three different areas.
First, raise. We want to raise worker voice and raise the floor of Minimum Labor Standards for low-wage workers. To raise worker voice, we are researching and proposing and building connections with organizations to advance alternative forms to build worker power. Earlier, Sameer mentioned the importance of worker co-ops. A worker co-op is enabling low-wage workers to be genuinely entrepreneurial in a way that could change their lives.
And it’s especially well-suited to undocumented workers, who, in most areas, can’t be legal employees. But they can be entrepreneurs. But for worker co-ops to succeed, there needs to be public investment in them.
In California, we have SEED, which is an acronym about Social Entrepreneurship for Economic Development that puts public money into funding worker co-ops. But there are other ways we could do this. In California, there is a bill pending in the legislature that goes by the acronym of the FAST Recovery Act, which would create sectoral councils to develop minimum labor standards in the fast food industry.
It would build on the model of the California Energy Commission or the California Coastal Commission, which bring together all the stakeholders in a sector– business, labor, and, in the case of fast food, franchisees, the people who operate the local fast food restaurants, to talk about how to have better labor standards that really work for everybody. Secondly, CLAW wants to lead– that is lead and shape economic justice policies for low-wage and immigrant workers in particular. This would enable us to be thought leaders for the California legislature to do what Sharon mentioned.
If you have space for legislation, what should that legislation look like? The California legislature considers about 100 bills every year on labor issues. They need expert advice about whether those bills are good or bad, how to make them better, what bills they should consider that so far nobody has proposed.
And the California Labor Code already has a lot of protections in it. And nobody really even knows what’s there. We’re trying to link students with community organizations or labor organizations and, of course, us to supervise them to do Project Labor Code, we call it, which is to study what is in the California Labor Code.
Is it working? Could it be improved? Could it be a model for other places in the country?
And then third, CLAW wants to envision new paradigms to address economic inequality and work equity. What would economic security look like if it was truly available for everyone? So, for example, California fairly recently abolished the piece rate in the garment industry because 120 years of experience with garment manufacturing in the United States has revealed, irrefutably, that the piece rate works not to encourage faster or more efficient work– although sometimes it does that– but mainly to encourage workers to produce more while getting paid less.
And so how could we build on what we now know about the economic impact of abolishing the piece rate in the garment industry in California to abolish the piece rate in agriculture, a much bigger sector of the California economy, or warehouse work, to Sameer’s point, where Sameer knows from his work with warehouse workers that the piece rate is one of the things that is literally breaking the bodies of workers in warehouses who cannot keep up? And so through all of this, CLAW is hoping to partner scholars both in the law school and across Berkeley, universities elsewhere, worker organizations, and students to transform the way we think about what the law is and should be and to propose or study legal interventions that could make a real difference.
ERWIN CHEMERINSKY: That’s terrific. Thank you for the description. As I was listening to you and Sharon describe the centers, Sameer describes his clinic, one thing that’s in the back of my mind is, should we be changing the law school curriculum? Sameer, you started the conversation by talking about how the problem permeates law schools in the way that they– put in my words– essentially favor capital over labor. Would you change the law school curriculum in order to better train students and teach students to be able to deal with the problems of workers in the United States?
SAMEER ASHAR: I think so. I mean, through small steps. I think– it seems to me like we embrace a mission in law schools to prepare students for future employment. But if we accept that as our only mission, then we engage in, in Duncan Kennedy’s words, reproduction of hierarchy. And so how do we focus on our most challenging social problems in law schools?
In part through clinics and centers, as has been described. But I think in the curriculum as well. My colleague Mersha Baradaran at Irvine, at a faculty retreat, recently said that we should begin to see law schools as a lifeboat rather than a cruise ship. And I think that’s really evocative and meaningful in this current environment of crisis.
We have a series of existential crisis that we face as a society and as a globe. And so how do we turn from kind of hole suites of courses that are focused on what I would characterize as corporate power, the expansion of corporate power, or bar courses that are with little consideration for access to legal process and to lawyers, that are almost academic with regard to the process that’s available to working class people and to poor people, to the vast majority of people even in the United States. And how do we turn towards more courses that grapple with the law of climate change, social and economic inequality, the crisis of democracy, the crisis in gender justice, the lack of access to shelter and subsistence, the restrictions on migration, and the sort of miseration of migrants that’s only going to be exacerbated by climate change and then, of course, the structural inequities that result from racialization and the use of race and ingenuity as ways in which to divide people, divide the working class, specifically, and impose more sanctions on some rather than others.
There’s so much room for our curricula to grow. And the question is how to do that. I think there’s lots of ways in which to draw on people’s expertise and charge them with designing courses that might begin to deal with some of the problems, the existential crises that I talked about, as well as to draw in people from the outside. I’ll say one other center model that I think is nontraditional– it’s not like either the Harvard or the new Berkeley model, which sounds really exciting. That’s the UCLA Labor Center in Los Angeles, which makes the entire University permeable to unions, which are fairly powerful in the city of Los Angeles.
And that also is sort of paired with a labor undergraduate studies program, as well as some representation at the law school in the form of Victor Narro, who’s a a legendary organizer. And so investing in making law schools and universities more permeable to workers and worker power seems essential. The other thing I’ll say is that I talked about this sort of whole span of existential crises.
I just want to suggest that labor power is central in all of those struggles. And, in some ways, labor power is all that we have to preserve democracy as well as do some of the other things that we need to do. So I think it’s essential that law schools think critically about how to make themselves more permeable, how to encourage new kinds of courses in the curriculum as well as encourage and foster scholarship that will grow this attention to the crisis of worker power.
ERWIN CHEMERINSKY: Sharon, Catherine, your thoughts about the curriculum? Or Sameer was just saying scholarship directions for law schools.
SHARON BLOCK: Plus 1 to everything that Sameer just said. I mean, I think we don’t use the word power enough in law school, and particularly in posing the question of how is the law allocating power and what are the strategies to create countervailing power, not just for workers. One thing, certainly doing this work for a while, is you realize that workers don’t live their lives as workers.
They live their lives as workers who are tenants, who are parents, who are customers. And the myriad ways that they find themselves being oppressed or struggling with growing and concentrating corporate power. And so finding a way for the curriculum to sort of recognize that dynamic, I think, is really important, that the law is not organic, that there were very intentional decisions made about how the law allocates power between different actors in the economy. And we don’t attend, I think, enough to that sort of backdrop fact in either labor law or across other aspects of the curriculum and how those things work in concert to create the conditions that we have today.
ERWIN CHEMERINSKY: Thank you. Catherine.
CATHERINE FISK: The traditional first year law school curriculum teaches the architecture of 19th century Anglo-American capitalism. And it is largely irrelevant to the lives of the vast majority of people. Contract law, for example, is irrelevant to most workers– so irrelevant that several years ago, Walmart publicly disclaimed having any contractual relationship with its workforce.
Most workers’ sole experience of an employment contract, so-called, is an agreement to arbitrate any dispute that they have with their employer– in other words, an agreement to give up all of the protections that I spend five hours a week every week in the fall teaching in civil procedure. So civil procedure is entirely irrelevant to most workers, most consumers because they go off into an arbitration system that bears no resemblance to the civil procedure that I teach. Tort law is available to most people only in the rarest of circumstances, in really extreme cases.
And so why do we take a group of excited, idealistic, curious students who show up at law school to start their 1L year and bore them out of their minds with a bunch of classes that they find difficult to grasp and largely irrelevant to the reasons why they came to law school. One thing that we as law schools can do is offer them opportunities to study the law that they came to law school inspired to learn earlier in law school so we don’t alienate them from what they were inspired by teaching them, well, real law is contracts, torts, property, civil procedure, and go forth. And now find a summer job.
If we allow them to take courses, whether it’s a seminar in the fall semester or an elective in the fall or the spring semester, it gives them some excitement about, oh, this is what the law is that could actually enable me to do something that I really care about, that inspired me to become a lawyer. I think it’s really important to offer clinical opportunities, as UCI does, with a mandatory clinic for every single law student. One thing about making clinics mandatory, as you know, Irwin, since it was your idea and you made it happen at Irvine, is that it forces the law school to expend the resources to make a clinical opportunity available to every student. And, also, it makes clinical education a core part of the law school rather than a peripheral part, which many students find the clinic– I mean, some students sort of hate law school, go off into the clinic. And that’s how they get through the last two brutal, boring years of law school.
And so I think there are lots of ways in which we can inspire and build on the inspiration that our students have in the classroom, whether that’s a clinic or an elective. I loved having 1Ls in my employment law class this spring. It was super fun. They were the most excited students in the room. So there’s just so much more we can do.
ERWIN CHEMERINSKY: All too quickly, our time for this conversation is ending. Let me just ask each of you to take a minute for concluding thoughts on what our topic is– what can law schools do to make a difference? Anything you haven’t said that you want to be able to express. And I apologize. Since we’re running out of time, there’s only a minute each.
Sameer, since we started with you, I’ll go back to you now. And then Sharon and Catherine.
SAMEER ASHAR: I love Catherine’s critical dissection of the first year bill which would give heart attacks to many of our colleagues. So I think courage– having a degree of courage– and having labor law faculty at your law school. I’ll note that University of Minnesota Law School just hired two great labor law scholars in trying to build out an area of strength. Labor law needs to be a growing field rather than a shrinking field.
And it’s my hope that law schools will follow Minnesota’s lead across the country, including my own, Irvine. So I’ll leave it at that. Thank you, Erwin, for the discussion.
ERWIN CHEMERINSKY: Thank you. Sharon.
SHARON BLOCK: Yeah, I’ll just maybe say something I said before but in a slightly different way. I just think it’s really important for law schools to define success for their students when they leave in a way that contemplates making a kind of contribution to workers that I think that we all hope our students will go off and do. There’s so many signals that students get in law school that define success about– as serving corporate clients in their monetary rewards or being in academia.
I mean, I love at Harvard we have the Wasserstein Fellow Program. Which brings public servants to campus to mentor students. But I think just finding those signals the other way are so strong. And I tell my students often. I defy anybody to love their career more than I have loved my career.
Plenty of people made more money. But I have loved what I have done– and just finding ways to share those stories with our students so they think– not feel like they’ve got to go it alone if they want to do something that’s different than what many of their colleagues are going to do after they leave.
ERWIN CHEMERINSKY: Catherine, the last word.
CATHERINE FISK: I’m more excited about the prospect for meaningful change in the law of work than I’ve been at any point in my 30 years as a law professor. The way people are talking about what worker power can do, the way that my corporate law colleagues are suddenly discovering ESG– I feel like, wow, you mean corporations might exist for some reason other than maximizing shareholder value in the most short term sense? That’s radical and revolutionary. Right?
I can joke about it. But the fact that that is now an exciting area of corporate law scholarship, and that people are finally thinking that important parts of any corporation, whether it’s Uber or Amazon or any other company, is the workforce, regardless of how they’re legally defined and the fact that workers are organizing in exciting ways, new ways, and are succeeding. This makes me optimistic that people, regardless of their position on the labor capital divided, recognize that if workers are immiserated, as Sameer said, democracy will not survive.
So it’s in all of our interest to address these problems. And I think we will.
ERWIN CHEMERINSKY: That optimistic note is a perfect place to end the conversation. Sameer Ashar, Sharon Block, Catherine Fisk, thank you so much for this terrific discussion. I hope you enjoyed this episode of More Just. And be sure to subscribe wherever you get podcasts. Until next time, I’m Berkeley Law Dean Erwin Chemerinsky. Thank you.