Under the heading of hard bargaining tactics gone bad (and bad lawyer advice), we can now add this story. When a group of eight faculty members at the General Theological Seminary in Manhattan decided to stop working in order to protest their newly hired dean and president, Rev. Kurt H. Dunkle, all purgatory broke loose. Under advice of their counsel, the faculty wrote a rather strongly worded letter outlining their demands regarding the dean. (See the nasty details of the dean’s behavior here).
Unimpressed with the tone of the letter, the Board of Trustees for the Seminary considered the letter, instead of the opening bid that the faculty intended, as a mass resignation. They dismissed the eight faculty members (leaving the students at the Seminary with only two instructors.) In this case, the eight faculty members’ hard bargaining tactic to have their foul-mouthed, micromanaging (in their descriptions) dean dismissed ended up focusing attention on their perceived “bad” behavior rather than that of their dean.
Earlier this month, seven of the faculty members were reinstated (one of them accepted a severance package and moved on). And only now, (finally) the faculty and board of trustees are using mediation to see if their interests can be met.
When we talk about expanding the pie, we should also be talking about shrinking the pie. This is a great example of just that–and woe for the unlucky students. (Hat tip to my colleague Bruce Boyden for this awesome storyline)
Alan Kaplinsky and Mark Levin, Ballard Spahr attorneys writing on their CFPB Monitor blog, have offered their initial thoughts on the study of consumer understanding of arbitration agreements that my St. John’s colleagues and I recently posted.
My colleague Jeff Sovern has posted a full response at the Consumer Law & Policy Blog. I’ll just add that, in my view, Levin and Kaplinsky don’t actually address the core problem we address in our article–that citizens are being unwittingly and unwillingly forced to give up important (and constitutionally guaranteed) procedural rights. Their point–and it is the point arbitration advocates almost invariably make–is that arbitration can be better for consumers than litigation. That may very well be true, at least some of the time. (See my post on the benefits of limited consumer arbitration here.) But it doesn’t answer the right question.
The constitution guarantees a right to a jury trial in civil disputes. More broadly, the rule of law depends on access to public adjudication to enforce private rights. Citizens cannot be forced into alternative processes simply because someone has made a determination that they would in fact be better served by the alternatives. It is certainly true that citizens can choose to give up their adjudicative rights, but those choices have legitimacy only if they are knowing and voluntary. Our research suggests that consent to arbitration is seldom knowing and voluntary.
Peter B. “Bo” Rutledge has been named Dean at the University of Georgia School of Law. Press release here. Congrats Bo !!
By my count, here are the ADR Deans off the top of my head: Brown (Quinnipiac), Guthrie (Vandy), Kloppenberg (Santa Clara), and our very own Moffit (Oregon). Now we add Paul (Montana) and Bo to the mix. I presume I’ve left someone out, did I?
Wisdom and virtue to the West!