Digital Commons Network^™

Kidfluencers: New Child Stars In Need Of Protection, Mikayla B. Jayroe

Arkansas Law Review

Despite the explosive growth of social media and various lobbying efforts, the legal system has fallen woefully behind in extending labor protections to children engaged in social media production. This Comment will offer a solution to the current gray area surrounding kidfluencers and the lack of protections they are afforded. First, this Comment will discuss the emergence and growth of the kidfluencer industry and explore the legal history of child labor laws in the United States, specifically evaluating protections historically provided to child actors. Second, this Comment will explain why posts by kidfluencers should be considered work, explore the harms …

Indigent Defense In Louisville: Conditions For Unionization, Zane R. Phelps

The Cardinal Edge

This paper begins by examining the unionization efforts of the Louisville Metro Public Defender Corporation and seeks to link those conditions with national trends to cultivate a rich understanding of why the attorneys are unionizing and what policy solutions they hope to achieve. After surveying the sources of funding and oversight for indigent defense across varying state systems, it synthesizes a policy recommendation wherein federal intervention (National Labor Relations Board), state and local government budgetary oversight and appropriations powers (Kentucky General Assembly, Louisville Metro Council), and the collective bargaining and unionization process (concerted activity), protected by law, are utilized in …

Black And Blue Police Arbitration Reforms, Michael Z. Green

Faculty Scholarship

The racial justice protests that engulfed the country after seeing a video of the appalling killing of a Black male, George Floyd, by a Minnesota police officer in 2020 has led to a tremendous number of questions about dealing with racial issues in policing. Similar concerns arose a little more than fifty years ago when police unions gained power to respond to the civil rights protests occurring during those times by establishing strong protections for their officers in light of brutality claims. This rhythmic progression of protests and union responses is destined to continue without any lasting reforms focused on …

Do College Students Have A Lack Of Awareness Around Human Trafficking?, Tessa Cavender

Undergraduate Honors Theses

Human Trafficking is an epidemic around the world, but if you ask the average person, they know little more than what is shown in media. To try to understand this, we asked the questions of whether college students also have a lack of awareness around trafficking, and if so, is education the best way to fix this? Our literature review found many professions, such as healthcare and K-12 education, are pushing for human trafficking curriculums to be implemented in their fields. To determine if this method would be effective on a college campus, five college students were interviewed to determine …

The Future Of Roe And The Gender Pay Gap: An Empirical Assessment, Itay Ravid, Jonathan Zandberg

Indiana Law Journal

In Dobbs v. Jackson Women’s Health Organization, the Supreme Court upheld a Mississippi law that prohibits nearly all abortions after the fifteenth week of pregnancy and overruled the holding in Roe v. Wade. Among the many arguments raised in Dobbs in an attempt to overturn Roe, the State of Mississippi argued that due to “the march of progress” in women’s role in society, abortion rights are no longer necessary for women to participate equally in economic life. It has also been argued that there is no empirical support to the relationship between abortion rights and women’s economic success in society. …

In Support Of Ureaa: The Case For Timely, Uniform, And Comprehensive Action Against Restrictive Employment Agreements, Ryan Greenberg

University of Miami Business Law Review

Tens of millions of American workers across a range of occupations are bound by restrictive employment agreements. The COVID-19 pandemic has caused people to leave their jobs in search of more money, flexibility, and happiness—deemed the Great Resignation—shining a new light on the volatility of labor markets. But restrictive employment agreements limit workers’ exit options and stymie competition, in tension with our nation’s antitrust laws. The effects of these agreements are particularly damaging to low-wage workers. Rightfully so, policymakers across jurisdictions and political ideologies are increasingly introducing measures to curtail the abuse of these agreements. This area of the law …

Panel 1 - Towards Effective Governmental Intervention: Ending Discrimination In The Workplace, Rebecca Salawdeh, Patrick Patterson, Victoria Lipnic, Carol Miaskoff, Hnin Khaing

American University Journal of Gender, Social Policy & the Law

FACILITATOR: Good morning, everyone and welcome to the “Enhancing Antidiscrimination Laws in Education and Employment Symposium”, hosted by the American University Journal of Gender, Social Policy & the Law, the American, and the National Institute for Workers’ Rights (“Institute”). And without further ado, let me pass it off to the Institute’s board president, Rebecca Salawdeh

The Case In Favor Of Waivable Employee Rights: A Contrarian View, William Corbett

Journal Articles

Most employee rights in U.S. labor and employment law are nonwaivable. Waivable employee rights exist most prominently in the law regarding noncompetes and mandatory arbitration agreements. In recent years, there has been substantial backlash against perceived employer confiscation of workers’ rights in these two areas. On January 5, 2023, the Federal Trade Commission issued a proposed rule prohibiting employers from entering into noncompete agreements with workers. In 2022, President Biden signed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. Clearly, the federal government has become concerned with employers’ opportunistic confiscation of employees’ waivable rights and …

Changemakers: Master Of Studies In Law: 'Something New And Different...': Monique Kuester, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Looking A Gift Horse In The Mouth: Working Students Under The Fair Labor Standards Act, Lara Morris

Washington and Lee Law Review

Internships have skyrocketed in popularity as they become the new entry-level position for professional careers across the country. Despite their popularity, the legality of internships falls in a gray area created by a vague statute and a flexible, factor-based judicial test. The Fair Labor Standards Act (FLSA), which regulates employment relationships and importantly mandates a minimum wage and hour requirements, was written long before internships became commonplace and provides little direction for how to regulate these positions. In this void, both the Department of Labor and federal courts have developed guidance, the ultimate culmination of which is the modern primary …

Comment: Unpaid Internships And The Rural-Urban Divide, Susan D. Carle

Washington and Lee Law Review

In this Comment, I first note how much the existing literature on unpaid internships under the FLSA focuses on urban contexts. Next, I briefly sketch some of the literature on the rural-urban divide, a topic I argue needs much more analysis from legal scholars in coming years. Third, I show how Morris’s work brings together these two literatures, which to this point have not been in conversation with each other. Finally, I note a few questions Morris’s work raises for future attention.

The Sinister Truth Of Mega-Sporting Event Preparations, Grace E. George

Marquette Sports Law Review

No abstract provided.

‘I Will Control Your Mind’: The International Regulation Of Brain-Hacking, Thibault Moulin

San Diego International Law Journal

In the near future, the use of neurotechnologies—like brain-computer interfaces and brain stimulation—could become widespread. It will not only be used to help persons with disabilities or illness, but also by members of the armed forces and in everyday life (e.g., for entertainment and gaming). However, recent studies suggested that it is possible to hack into neural devices to obtain information, inflict pain, induce mood change, or influence movements. This Article anticipates three scenarios which may be challenging in the future—i.e., brain hacking for the purpose of reading thoughts, remotely controlling someone, and inflicting pain or death—and assesses their compliance …

President Biden's Executive Order On Competition: An Antitrust Analysis, Herbert J. Hovenkamp

All Faculty Scholarship

In July, 2021, President Biden signed a far ranging Executive Order directed to promoting competition in the American economy. This paper analyzes issues covered by the Order that are most likely to affect the scope and enforcement of antitrust law. The only passage that the Executive Order quoted from a Supreme Court antitrust decision captures its antitrust ideology well – that the Sherman Act:

rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time …

How To Pay Off Hard Work, Juliette Hernandez

University of Miami Business Law Review

No abstract provided.

Beyond Citizens United: Democratizing The Economy In The Wake Of The Small-Dollar Revolution, Jay Hedges

Journal of Civil Rights and Economic Development

(Excerpt)

Citizens United increases the power of corporations over our political process. Under current corporate governance laws, permission for corporations to behave as political actors ignores the consent of a particularly important constituency of these business entities—labor. This neglect of workers reveals three democratic crises resulting from the corporate structure in the United States, which have only intensified following Citizens United. First, while the political speaking-power of corporations has been substantially increased, these entities lack legitimacy to speak on behalf of their labor constituency. Second, the use of corporate profits, generated by the corporation’s labor force, as the means …

Bargaining For Abolition, Zohra Ahmed

Faculty Scholarship

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? Early observers of twentieth century urban criminal courts likened them to factories.¹ Since then, commentators often deploy the pejorative epithet “assembly line justice” to describe criminal court’s processes.² The term conveys the criticism of a mechanical system delivering a form of justice that is impersonal and fallible. Perhaps unintentionally, the epithet reveals another truth: criminal court is also a workplace, and it takes labor …

Labor & Employment Law Guidance For Professional Sports Teams, Christopher R. Deubert

Marquette Sports Law Review

No abstract provided.

Third-Party Retaliation Problems, Alex B. Long

Emory Law Journal

No abstract provided.

Wage Recovery Funds, Elizabeth Ford

Faculty Articles

Wage theft is rampant in the US. It occurs so frequently because employers have much more power than workers. Worse, our main tool for preventing and remedying wage theft – charging government agencies with enforcing the law -- has largely failed to mitigate this power differential. Enforcement agencies, overburdened by the magnitude of the wage theft crisis, often settle cases for nothing more than wages owed. The agency, acting as broker for the payment of the wages owed, voluntarily foregoes both interest and statutory penalties. This is a bad deal for workers, but not just because they do not get …

Bargaining For Abolition, Zohra Ahmed

Scholarly Works

What if instead of seeing criminal court as an institution driven by the operation of rules, we saw it as a workplace where people labor to criminalize those with the misfortune to be prosecuted? I offer three different ways to think about labor in criminal court: (1) labor as a source of sociological value, (2) labor as an input that generates certain measurable outcomes, and (3) labor as a vehicle to advance abolitionist reforms. First, through their quotidian activities, criminal courts’ workers enact a practical philosophy that communicates lessons about who and how we value each other. Drawing on ethnographic …

Miscarriage Of Justice: Early Pregnancy Loss And The Limits Of U.S. Employment Law, Laura T. Kessler

Utah Law Faculty Scholarship

This Article explores judicial responses to miscarriage under federal employment law in the United States. Miscarriage is an incredibly common experience. Of confirmed pregnancies, about fifteen percent will end in miscarriage; almost half of all women who have given birth have suffered a miscarriage. Yet this experience slips through the cracks of every major federal employment law in the United States.

The Pregnancy Discrimination Act of 1978, for example, defines sex discrimination to include discrimination on the basis of pregnancy, childbirth, or related medical conditions. The Family and Medical Leave Act of 1993 requires covered employers to provide employees with …

Megacompany Employee Churn Meets 401(K) Vesting Schedules: A Sabotage On Workers' Retirement Wealth, Samantha J. Prince

Faculty Scholarly Works

Retirement wealth inequality and retirement security are issues that the United States has been grappling with for years. Low-paid and minority workers are most likely to be unable to accumulate retirement savings over time. This Article spotlights Amazon, one of America’s largest employers and one that has very high employee turnover. To be vested in Amazon’s 401(k) matching contributions, an employee must be there for three years—a requirement that is not being met given the much quicker turnover in their low-paid, predominantly minority warehouse workforce.

Until now, there has not been discussion about the grossly unfair result of mixing high …

Mapping Racial Capitalism: Implications For Law, Carmen G. Gonzalez, Athena D. Mutua

Journal Articles

The theory of racial capitalism offers insights into the relationship between class and race, providing both a structural and a historical account of the ways in which the two are linked in the global economy. Law plays an important role in this. This article sketches what we believe are two key structural features of racial capitalism: profit-making and race-making for the purpose of accumulating wealth and power. We understand profit-making as the extraction of surplus value or profits through processes of exploitation, expropriation, and expulsion, which are grounded in a politics of race-making. We understand race-making as including racial stratification, …

“The New Pinkertons”: Anti-Union Consultants And Surveillance Tech Thwart Organizing, Jo Constantz

Capstones

In 2020, just 6.3% of U.S. private-sector workers were union members, despite the fact that 68% of Americans approve of labor unions, the highest since 1965, and nearly half of non-union workers say they would join.

After World War II, wage growth kept pace with GDP growth, but then began to diverge in the 1970s, according to a study by the RAND Corporation. After 1975, incomes of the bottom 90% rose more slowly than the economy as a whole, while incomes of the top 10% grew faster. The declining wage growth coincided with and is closely related to a drop-off …

Freedom Without Opportunity: Using Medicare Policy And Cms Mechanisms To Anticipate The Platform Economy’S Pitfalls And Ensure Healthcare Platform Workers Are Fairly Paid, Kim A. Aquino

Brooklyn Law Review

The rapidly aging population, along with the demand for innovative Medicare delivery models such as bundled payment programs have incentivized the use of technology in healthcare because of its potential to cut costs and improve quality of care. Like many industries embracing technological strides to automate and digitize services, the healthcare industry has welcomed new labor markets like the platform economy to facilitate connections between patients and workers with ease. Along with streamlining connections, the platform economy also promises workers flexibility and autonomy over their own schedule. The platform economy’s promise of freedom, however, is not enough to prevent the …

Antitrust Harm And Causation, Herbert J. Hovenkamp

All Faculty Scholarship

How should plaintiffs show harm from antitrust violations? The inquiry naturally breaks into two issues: first, what is the nature of the harm? and second, what does proof of causation require? The best criterion for assessing harm is likely or reasonably anticipated output effects. Antitrust’s goal should be output as high as is consistent with sustainable competition.

The standard for proof of causation then depends on two things: the identity of the enforcer and the remedy that the plaintiff is seeking. It does not necessarily depend on which antitrust statute the plaintiff is seeking to enforce. For public agencies, enforcement …

Changemakers: Finding The Perfect Niche, Michael Bowden

Life of the Law School (1993- )

No abstract provided.

Whose Choice?: The Future Of Construction (And Maybe All) Labor Law, Michael J. Hayes

Catholic University Law Review

The current National Labor Relations Board ("Board') since 2018 has indicated an interest in changing the law on employee representation by unions in the construction industry, culminating in a final rule issued on April 1, 2020. As the article discusses, this proposal is likely to have effects in many industries other than construction, because many other industries in the U.S. are becoming more like the construction industry has long been. The Board’s rule has changed what's required for a construction union to remain the representative of a construction employer's employees, which the Board justified as serving "employee choice" about union …

Made In Bangladesh: The Unethical Treatment Of Sweatshop Workers, Samira Hossain

Emerging Writers

This article examines the treatment of sweatshops workers in Bangladesh, including causes of poor labor practices, and suggests solutions to improve practices.