"Vital Signs of the Rule of Law in California's Workplaces"
California Labor & Employment Law Review, Message from the Chair, Bryan Schwartz (April 2017)
Home late again from an out-of-town deposition, I lie very silently next to my three-year-old son and smile to hear him breathing. Cracking open the door of my daughter's bedroom, I feel relieved to see her shift slightly while sleeping. I head to bed and listen for my loving partner's heartbeat.
These are the vital signs-the breathing, the gentle movement, the heartbeat. The deposition also-and the many hours it took to prepare for it, the documents my opposing counsel gathered beforehand, the hours we pored over them to learn the facts of the case, and the briefing and hearing that will come soon when we argue our respective points-constitutes the behind-the-scenes lifeblood of the rule of law; and it is also born from love.
This love binds my opposing counsel and me. I sue companies and agencies and people for alleged mistreatment of workers. They defend them. Yet, we are all married to the same system where our respective client's positions are entitled to impartial consideration through a many-layered process, where each of us can be heard and our clients' rights considered against the same body of law.
We know that sometimes this process is tedious, that it sometimes keeps us away from our loved ones, and that it leaves us sleep-deprived. But, this process keeps America and California alive. By serving this process, we express our patriotism and our love. We know that it takes more than just blood on the battlefield to protect our nation. It takes the law. In our daily practice are the vital signs of democracy.
Even someone as different from me as Dan Burton can agree. He is a Tea Party Republican from Indiana who served for 30 years in the House of Representatives. In 1998, he was seeking appointment of an independent counsel to investigate the Clinton administration and invoked "the need to inform the American people of the threats to our judicial system by an administration which thinks that it is above the law." He said, "No one in this country should be above the law. The law... should be administered equally, whether it is the lowest person in the United States or the person occupying the highest office, the President of the United States."1 Whether or not I agree with his politics, Rep. Burton and I agree about the law's superiority over any individual.
We are in good company. More than two centuries earlier, in The Federalist No. 78, Alexander Hamilton wrote that "the Constitution ought to be preferred to the statute, the intention of the people to the intention I of their agents," thereby fighting for a Constitution that would imbue the judiciary in our nascent republic with the power to interpret the law and the original will of the people. This will exceeds the will of any elected official, or any number of them. We shepherd the judiciary, and the juries of our clients' peers, in this sacred work of nurturing a healthy Constitution. The Bar's Labor and Employment Law Section educates us to better perform this duty-in the most well-informed, ethical, and collegial manner.
We know all this, of course, but right now we must remember it every day as labor and employment lawyers in California, listening for democracy's vital signs at all hours. None of us want California workplaces where women are unsafe from harassment and assault, where people with disabilities do not have fair opportunities to contribute, where people of some races and national origins are treated worse than .others, where hardworking men and women cannot earn enough to feed their families. None of us want those who violate the law to gain unfair business advantages over those who play by the rules-the rules that are in our charge. Because of us, California employers know how to hire workers fairly, how to pay them lawfully, and how to hold them accountable when they fall short. Sometimes our clients let us down, sometimes we have second thoughts about advice we give, or about a legal strategy we pursue. Our basic commitment to the rule of law, though, persists.
No matter what happens, for the nearly 20 million Californians in the labor force, and many millions more depending on them, nothing could be more important than what we do keeping the organs of our democracy healthy and continuing to shape and enforce a rule of law for the state's workplaces. Though hearing a ping on my phone when an ECF notification comes across is surely not as sweet a sound as my little boy's night time breathing, it is also vital.
1. 144 Cong. Rec. 20416 (Sept. 15, 1998).