EQUALITY - aka RESPECT

Massachusetts is struggling with a problem that keeps popping up in the news. And people keep being stunned and amazed.

Women in this state make 70 cents for every dollar that men make.

And that is in this bastion of education, liberalism, and progressivism. Massachusetts had the first law in the country about equal pay, in 1945, according to several of these articles and posts. Here is a little blurb about the activity that may well have led to that law - concern about the women who stepped into industrial jobs for the WWII effort. At that time, (and still in many minds), jobs were classified as male and female. Some employers cut the pay for welding or other "male" jobs when women took those jobs during the war. The AFL-CIO was concerned that returning veterans would find their pay remained cut after they took back their pre-war positions. When vets came back from the war, Massachusetts passed what has become known as the Massachusetts Equal Pay Act (MEPA), M.G.L. Chapter 149, §105A.

Here are a series of articles and blog posts through the years, starting with the most recent, where the press alert the public to this startling piece of news and call for action:

Wage Gap For Women Persists Despite Some Progress (Boston Globe 9/28/14)

Massachusetts Women and the Wage Gap (Fact sheet 4/2013 from National Partnership for Women and Families)

Mind the Gap (Boston Magazine 2/2013)

The Importance of Fair Pay for Massachusetts Women (Fact Sheet 4/2012 from National Women's Law Center)

It's striking that the 2012 fact sheet mentions the gap as 81 cents to the dollar. The 2013 fact sheet says 77 cents to the dollar. And the 2014 article says 70 cents to the dollar. Women seem to be losing ground, even as these articles, fact sheets and conferences are flailing away at the problem! Just in 2 years, we've dropped from 81 cents to 70 cents, or lost 11 cents to the average man's dollar! Hmmph.

There are a number of federal and state laws in place that are supposed to prevent discrimination or unequal pay on the basis of sex (or race, for that matter). A handy, publicly available pamphlet from the law firm Foley Hoag is one of the links on this state web page about Massachusetts Laws About Wages. (scroll down on the page to "Other Web Sources" to find "Massachusetts Wage and Hour Laws: What Every Employer Needs to Know, Foley Hoag.") According to the pamphlet, employers can justify differences in wages based on

* a merit system
* a system that measures earnings by quantity or quality of production
* a seniority system
* differences in training, education, experience
* any factor other than gender or race

It all sounds so benign. And yet it works like this. A woman may take time off when she has a baby. She may even stay out of the workforce a few years, while her children are little. During those years, the cadre of men or childless women who entered her profession at the same time she did, move along, gaining experience, and moving up the professional ladder. This can work just the same for a woman who takes time off to care for aging parents or in-laws, too, of course. The individual who dropped out to take care of child or parents is falling behind their cohort.

The mother, later, comes back to the workforce, as if she had been in stasis, professionally. She may not have been able to keep up with new developments, and new technology. The mother has been quite busy doing other things that are very important, not just to her and her family, actually, but also to society as a whole. We should value and recognize the importance of parenting and care-taking, no matter which gender is taking time to focus on this task. Perhaps as more men become stay-at-home fathers, this might start to change.

But the return to work, unless the individual can buff up skills with some courses, is tough at best. The worker has fallen behind on developments and skill sets. Even if she/he can make up through training courses, those years of wage growth and professional networking, ladder-climbing have been missed. While the entry cohort has advanced 5 years, the mother has remained at the professional level where she stepped out of the workforce to parent. One more way in which women, on average, fall behind in pay levels.

There are lots of others ways. Just a week ago, the CEO of Microsoft explained how women should allow karma to help them get pay raises, rather than being so bitchy as to actually ask!

Blog Action Day Coming Right up

Woo Hoo! Blog Action Day is coming up in October. This year the theme is inequality.

I guess everybody has something to say about that.

I'll be brooding upon the theme but e-mail me if you have brilliant insights to contribute:

emckenzi54@gmail.com

Edwin Mellen Press suing blogger and new employer over critical post

The Edwin Mellen Press has filed a lawsuit against Dale Askey, now university librarian at McMaster University in Ontario.  They also name McMaster, even though when Askey wrote the blog post in question, he was employed at Hale Library as  --> an associate professor at Kansas State University.  Mellen claims $3 million in damages from Askey and from McMaster University!  They originally just sued Askey, but quickly refiled to include deeper pockets.  It is interesting to note that the blog post was from September, 2010, and Mellen's initial notice to sue came  shortly after Mr. Askey moved to Canada to take his job with McMaster, in June, 2012!  Read farther down about the difference in U.S. state law compared to Canadian law for something interesting to think about the timing of Edwin Mellen's suits!

The post in question has been removed from Mr. Askey's personal blog, Bibliobrary, but can be easily located by reading the Edwin Mellen legal petition, here, kindly supplied by the Canadian Association of Professional Academic Librarians, who strongly support Mr. Askey. They supply a link to a Change.org petition in support, and a partial list of the various other academic organizations which have rallied in his support. 

 The blog post was titled "The Curious Case of Edwin Mellen Press," and Mr. Askey blogs, in relevant part, (handily underlined by Mellen's counsel for us):

 Edwin Mellen has been on my radar as a dubious publisher for over a decade now, and given that libraries monographic budgets are ever-shrinking, I find myself amazed by the durability of Mellen. 

    ... No, they are not technically a vanity publisher, since apparently they earn enough from libraries with their egregiously high prices to avoid asking for subsidies from authors. But at the end of the day, so much of what they publish is simply second-class scholarship (and that is being kind in some cases), and in a time when libraries cannot purchase so much of the first-class scholarship, there is simply no reason to support such ventures. ...

 ... The dirty little secret of libraries is that such purchases are rarely evidence of careful consideration, but rather a sign of how much of the work of acquisitions we outsource to vendors, who supply these books on approval.  Why? Well, since those suppliers take a cut of sales, it is in their interest to sell as many high-priced volumes as possible, and in that scenario, a publisher such as Mellen is a golden goose.  ....

     A few commentators suggest that this may be a SLAPP suit, or Strategic Lawsuit Against Public Participation.  In a SLAPP law suit, the plaintiff does not actually expect to win the suit, but files the petition in hopes of silencing a critique by burdening them with the costs of litigation. In some U.S. jurisdictions, depending on statutory law or court precedent, if a judge concludes that the petitioner has mis-used the court system in order to intimidate the defendant, he or she may 

*  Dismiss the complaint at an early-stage motion; recover damages; challenge subpoenas and protect defined personal information; and protect privileged publication and participation in public proceedings and litigation.   (California)

*  Or, more relevantly, NY, where Edwin Mellen's U.S. offices are located. New York's Anti-SLAPP laws require the defendant to first show 2 things:

1)   First, you must show that the plaintiff suing you is a "public applicant or permittee."  The statute defines a "public applicant or permittee" as an individual or entity that has obtained or is seeking "a permit, zoning change, lease, license, certificate or other entitlement for use or permission to act from any government body." The term could include real estate developers, mining companies, garment manufacturers, and private landowners looking to build new structures on their land, among others. In essence, to meet this requirement, you will have to show that the party suing you requires some sort of government license to operate or proceed with a project.  See the excellent link above.

2)  Second, you must show that the plantiff's claim against you is an "action involving public petition and participation." The statute defines an "action involving public petition and participation" as one that involves a public applicant or permittee (above) seeking damages from a defendant on the basis of the defendant's efforts "to report on, comment on, rule on, challenge or oppose" the application to the government. For example, the definition would include a garment manufacturer's lawsuit against a public interest organization campaigning to have the manufacturer's state registration revoked. For another, the definition would include a real estate developer's lawsuit against a blogger who reported on the developer's attempts to secure a building permit, or who called upon local citizens to oppose the application.

      If you meet these 2 standards, you can file a motion to dismiss.  This does not allow you to halt discovery (unlike California, above). But if you prevail on the motion to dismiss, then the defendant in a NY SLAPP case can be awarded costs and attorneys' fees if the case was without basis in fact. If they can show they suffered harm, the defendant can be awarded compensatory damage in the amount to make them whole.  And if they can show that the ONLY reason for the lawsuit was to injure their rights, the NY SLAPP defendant may also be awarded punitive damages.

       Kansas does not have any SLAPP statute or case law.  However, if Edwin Mellen brought suit against Mr. Askey in the U.S., I wonder if Askey might have been able to remove the suit to New York state, where the suit might have become far more dangerous to Mellen?
    
      You can check Mr. Askey's blog dated Feb. 21, 2013, to see his thanks to a very long list of organizations which have come out in support.  There have been a number of articles about this as well:

Chronicle of Higher Education

Inside Higher Education

Library Journal (which notes that Mr. Askey is currently paying his lawyer expenses for both suits, which are both continuing, out of his own pocket!  McMaster is only covering the costs of the suit against the University.)

InfoDocket blog, (from Library Journal) with an excellent list of links for supportive comments and news stories.

     I was interested to read in several of these stories that Edwin Mellen Press had filed a similar suit for libel against the well-regarded journal Lingua Franca in 1993.  They lost that law suit, though Lingua Franca is now defunct, apparently from other causes.  There is even a book about the suit, The Edwin Mellen Press versus Lingua Franca: A case study in the law of libel, by Paul H. Reid, Jr.  Published by Edwin Mellen Press -- somebody either has no shame or a huge sense of either humor or irony!  

     The decoration is from an article in the Economist online paper dated Jan. 8, 2009, "Libel Tourism," which is interesting in itself. It appears that at least for a while, British citizens were suing non-Brits in British court, often very wealthy Brits against very humble non-Brits, over claims of libel. 
 

A Great Way to Celebrate Earth Day

We learned yesterday that two of Pace Law School's environmental law blogs, PEN-e, maintained by Jack McNeill, the Associate Law Library Director and current chair of the Academic Law Libraries Special Interest Section of the American Association of Law Libraries, and GreenLaw, which is maintained by our environmental law faculty, have been recognized as among The Top 50 Blogs for LexisNexis's Environmental Law & Climate Change Community. According to the press release,

These top blogs offer some of the best writing out there. They contain a wealth of information for all segments of the environmental law and climate change industry, and include timely news items, expert analysis, practice tips, frequent postings and helpful links to other sites and sources.

These blogs also show us how environmental and climate change issues interact with politics and culture. These sites also demonstrate the power of the blogsphere, by providing a collective example of how bloggers can—and do—impact and influence the law and business in the environmental and climate change arena.

Each of the Pace environmental law blogs fills a niche. GreenLaw supplies insightful analysis and commentary about environmental law issues in the news, while PEN-e "provides a gateway to news, commentary, legal research sources, new books and articles, and legislation on Environmental Law, Energy, Land Use Law and related legal topics."

Taking a Hammer to a Mosquito

When dealing with students, it is usually better not to overreact. Although this is true all year long, it is especially true during final exams, when tension levels rise. Right now, my library is literally packed with students, and it is becoming difficult to find a place to study. The staff is endeavoring to ensure that burned-out lightbulbs are replaced in a timely fashion and that the building is a comfortable temperature at all times. We try to remain calm when responding to complaints brought to us by students, but at times it is difficult. An article in The Chronicle of Higher Education made me think about ways that law school administrators interact with students.

The article describes a satirical blog, SUCOLitis, which aims "to be something like The Onion of law-school life." Focusing on Syracuse University College of Law, the blog features "fake headlines about beer pong, third-year students serving burritos, and the election of the university's 'sexiest Semite.' It delights in attributing fake quotes to students and faculty, as well as to famous alumni ... " I think that my reaction to the blog would have been to ignore it, but Syracuse took a different approach. "The law school has threatened 'harassment' charges against a student who is allegedly a writer for the anonymous blog." The student, Len Audaer, is being investigated, but Syracuse refuses to give him any information about the charges against him unless he signs a gag order. This information comes from a press release issued by the Foundation for Individual Rights in Education (FIRE), an organization "known for its efforts to stop campus officials from restricting the free-speech rights of students and faculty members." The blog, which is on WordPress, was made private last week, and readers have to access it using secure accounts. More information about the controversy appears here. Coming down hard on the student blog author has generated the kind of negative attention that most law schools try to avoid.

Massachusetts adding cameras to courtrooms

The Boston Globe reports today that the Massachusetts Supreme Judicial Court announced proposed new rules about cameras in courtrooms at all levels of the judicial system. The rules are not final yet, and comments are encouraged; the article tells interested readers where to send comments. The rule was crafted by the Supreme Court's Judicial Media Committee with input from journalists over the course of this year.

The rules are designed to increase citizen access to courts and trials, including blogger access. There is already a rule allowing 2 cameras in every court: one for television and one for newspapers. The new rule would allow 3 cameras, designating the new camera for Web access. The Court is clearly paying attention to the new role that citizen journalists have been playing in coverage of local news. As newspapers find it difficult to fund investigative reporters, these volunteer bloggers have often filled an important gap in coverage. While I certainly hope that professional journalists will continue to be available to cover important state trials, it's nice to think that a case of local interest could be covered by a blogger even when the papers decide it's not "big enough."

In a summary released yesterday, the court said “the news media would be defined as those who are regularly engaged in the reporting and publishing of news or information about matters of public interest.’’

The rules would allow journalists to use laptop computers and other electronic devices while court is in session, provided it is not disruptive.

Even with the new rules, judges still have the authority to ban cameras in certain circumstances. Also, journalists would still be barred from recording jurors at all times during a trial, whether it is a civil or criminal matter.

(from the Globe article by John R. Ellement, a staffer from the Globe who has shared in the Globe's 2003 Pulitzer prize. I was curious because of the rule, who was reporting.) This is the Court that pioneered webcasts (and archives of them) of oral arguments in their court. The Court really is seeking public feedback before making the rule final. Comments can be sent:

Christine P. Burak,
Secretary, Supreme Judicial Court Rules Committee,
Supreme Judicial Court,
John Adams Courthouse,
One Pemberton Square,
Boston MA 02108 on or before Jan. 28, 2011

The photo of the Court listening to arguments is from the Suffolk Law School website that houses the webcasts and archives.

Blogs in the Spotlight

The National Law Journal's supplement, Law Schools--A Special Report, highlights five "pioneers in law blogging," who are some of the best-known bloggers in legal academic--Professors Douglas Berman (Sentencing Law and Policy); Paul Caron (TaxProf Blog); Christine Hurt (The Conglomerate); Brian Leiter (Brian Leiter's Law School Reports); and Eugene Volokh (The Volokh Conspiracy). The brief profiles of the bloggers contain some interesting nuggets about why they started blogging and how they juggle their time commitments. Professor Hurt revealed that it is difficult to start blogging, at least for some people. Academics are accustomed to sharing their work with colleagues and to reworking their ideas many, many times before publication. "The thought of throwing something up on the computer scene [sic] for the whole world to read in five minutes doesn't resonate with a lot of people." Professor Berman began blogging in 2004, and has "learned to rein in his impulse to post fast-and-furious reactions to news and events. ... Over time, [he's] gotten more sensitive to being more mature, to resist the significant urge to go for the quick, sexy, clever comment." All of the professors interviewed say that blogging is a tremendous incentive for keeping up to date in their area of expertise and makes them more effective classroom teachers.