Digital Commons Network^™

Final Offer Arbitration In The New Era Of Major League Baseball, Spencer B. Gordon

ExpressO

This article provides a comprehensive analysis of the economic, athletic, and social impact of final offer salary arbitration in Major League Baseball (“MLB”). The article delves into the motivations, fluctuations, and evolution of the player-owner relationship and free agency. The commentary then focuses on the distinguishing features and intricacies of final offer arbitration. Although salary arbitration in the context of Major League Baseball is a topic oft discussed in the law review setting, the analysis rarely reaches the level exhibited in this article. Moreover, most articles on the subject were written between 1996 and 2000 when the 1994 players’ strike …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

The Small Firm Exemption And The Single Employer Doctrine In Employment Discrimination Law, Richard R. Carlson

ExpressO

The small firm exemption is a provision of Title VII and the other major federal employment discrimination laws that exempts very small firms from coverage as “employers.” Under the Title VII version of the exemption, for example, an employer is exempt as long as it employs no more than fourteen employees. However, a small firm might be affiliated or integrated with other firms, which collectively employ more than the number of employees required for coverage. The single employer doctrine is a rule for treating separately organized firms as if they were one employer, for purposes of meeting the statutory threshold …

The Ineffectiveness Of Capped Damages In Cases Of Employment Discrimination: Solutions Toward Deterrence, Vanessa M. Ruggles

ExpressO

Although the Civil Rights Act of 1991 helped victims of employment discrimination in a variety of ways, including the authorization of jury trials and the accompanying possibility of compensatory and punitive damages, the caps Congress placed on damages do not serve the purpose of deterrence. Because the caps are based on the number of employees a defendant employer has, the goal of protecting small businesses from exorbitant damages is accomplished. However, because the top category of the caps is “500 or more” employees, giant corporations escape meaningful awards. This article identifies the problem citing specific examples, and proposes several solutions …

The Day Laborer Debate: Small Town, U.S.A. Takes On Federal Immigration Law Regarding Undocumented Workers, Margaret B. Hobbins

ExpressO

Herndon, Virginia is the latest example of small town immigration issues exploding into the national debate on illegal immigration. This four-square mile town, population 22,000, was propelled into the national spotlight after a dramatic public reaction to Mayor Michael O’Reilly’s proposal to construct a hiring site for day laborers. Three months before the center even opened its doors, Herndon and Fairfax County faced a law suit challenging the legality of funding a day labor center that would inevitably extend its services to undocumented immigrants.

Small towns, adjusting to significant increases in the immigrant worker population, have become a new battlefield …

Paid Family Leave In American Law Schools: Findings And Open Questions, Laura T. Kessler

ExpressO

There exists a substantial literature on the status of women in the legal profession, including studies on women students’ experiences in law schools, gender bias on law school faculties, and family leave policies and practices among legal employers. However, no recent study examines the family leave policies and practices in American law schools. This study seeks to fill that gap. Its findings are threefold. First, almost three quarters of law schools provide wage replacement during a family leave that is more generous than required by federal law. Second, there is a positive relationship between teaching at top-tier and private law …

The Employer Preference For The Subservient Worker And The Making Of The Brown Collar Workplace, Leticia M. Saucedo

ExpressO

The rapidly growing Latino immigrant population raises questions about how the “brown collar” worker is being incorporated into our economy. Newly arrived Latino immigrants, or “brown collar” workers, are increasingly found in segregated workplaces throughout the country. They typically perform the least desirable jobs in the most unstable conditions in our economy. This article explores the creation of these workplaces by focusing first, on the conditions that create brown collar subservience and second, on employer practices that seek workers out for their subservience. Today’s anti-discrimination law does not adequately capture the form of discrimination lurking in the interaction between brown …

Information Disclosure And The Union Representation Election, Matthew T. Bodie

ExpressO

In its oversight of union representation elections, the National Labor Relations Board seeks to create “laboratory conditions” to determine “the uninhibited desires” of employees. Despite the Board’s intrusive regulation of union and employer campaign conduct, the Board does nothing to insure that employees get basic information relating to their decision. Given the flaws in the market for union representation, particularly with respect to conflicts of interest, the Board should take a more aggressive role in ensuring that employees get the information they need to make rational representation decisions. This Article proposes a new system of mandatory disclosure, modeled on disclosure …

Making Chinese Labor Law Work, Sean T. Cooney

ExpressO

Labor abuses in China have drawn international condemnation and led to increasing domestic unrest. Government, business and unions in the United States have insisted that Chinese law needs to be reformed to deal with those abuses but they fail to identify precisely what reforms are required.

This article aims to shift debates about reforming Chinese labor law in the United States to a much greater level of specificity. The discussion focuses on two very prevalent abuses that are purportedly prohibited by existing labor regulation: underpayment of wages and excessive working hours. The article analyses in detail those aspects of China’s …

Fuck, Christopher M. Fairman

ExpressO

This Article is as simple and provocative as its title suggests: it explores the legal implications of the word fuck. The intersection of the word fuck and the law is examined in four major areas: First Amendment, broadcast regulation, sexual harassment, and education. The legal implications from the use of fuck vary greatly with the context. To fully understand the legal power of fuck, the nonlegal sources of its power are tapped. Drawing upon the research of etymologists, linguists, lexicographers, psychoanalysts, and other social scientists, the visceral reaction to fuck can be explained by cultural taboo. Fuck is a taboo …

Assigning The Burden Of Proof In Contractual Jury Waiver Challenges: How Valuable Is Your Right To A Jury Trial?, Chester S. Chuang

ExpressO

Employers have long used arbitration agreements to manage the risk associated with the resolution of employment disputes. But as dissatisfaction with arbitration increases, employers are fundamentally changing their approach to dispute resolution by incorporating jury waivers into their employment agreements as an alternative. These jury waivers are an attractive compromise between arbitration and jury trials because they offer the full procedural protections of the public judicial system at a considerably lower cost than a comparable jury trial. Some courts have invalidated such jury waivers, however, making the enforcement of such waivers uncertain. In order for pre-dispute jury waivers to be …

Taking State Property Rights Out Of Federal Labor Law, Jeffrey M. Hirsch

ExpressO

Currently, the National Labor Relations Board determines whether union organizers have a right to access employer property by looking almost exclusively to an employer’s state law right-to-exclude. If the employer possesses such a right, an attempt to exclude organizers will generally be lawful; if the employer lacks that right, the exclusions will be unlawful. This analysis makes little sense, as an employer’s state property interests are irrelevant to the primary labor issue in these cases—whether the exclusion interferes with employees’ federal labor rights. Employees will tend to view hostile or discriminatory exclusions of organizing activity as coercive, whether or not …

Sarbanes-Oxley's Structural Model To Encourage Corporate Whistleblowers, Richard E. Moberly

ExpressO

Recent corporate scandals demonstrate that rank-and-file employees often remain silent in the face of significant fraud. This silence is unfortunate because corporate employees have inside knowledge of misconduct that gives them an information advantage over more traditional corporate monitors, such as independent directors and government regulators. To address this problem, the Sarbanes-Oxley Act utilized a new approach that encourages employee whistleblowers to disclose information about corporate wrongdoing. This approach, which Professor Richard Moberly labels the “Structural Model,” requires that corporations provide a standardized channel for employees to report organizational misconduct to official monitors within the corporation. This Article offers an …

Comparative Advantage And Labor Protections In Free Trade Agreements: Making Labor Protections In Trade Agreements Practical And Effective, Michael E. Aleo

ExpressO

The tension between competitiveness in international trade and the improvement of living standards has become a central controversy in negotiating trade agreements. Under pressure from the labor rights movement over the course of the last twenty-five years, the United States has regularly advocated for the inclusion of labor standards in trade relationships. Generally, governments in developing countries resist the incorporation of labor protections in trade agreements because of a belief that labor protections diminish a nation’s competitiveness in the international marketplace. Labor rights advocates, particularly in the United States, have fought for the inclusion of labor rights in trade agreements …

Card Check Recognition: The Ongoing Legal And Legislative Battle, Michael E. Aleo

ExpressO

A great debate has been brewing for years over whether unions should be able to organize employees outside of the traditional election procedures provided by the National Labor Relations Act (“NLRA” or “the Act”). Typically, in an organizing drive, a union solicits support from employees to indicate a desire to run a National Labor Relations Board (“NLRB” or “Board”) election. The union does this by collecting cards from employees affirming the employees’ desire to have a representation election. If the union collects valid cards from at least one-third of eligible employees in the appropriate bargaining unit, the union may then …

Pregnancy In Pieces: The Potential Gap In State And Federal Provided Pregnancy Leave, Sarah Stewart Holland

ExpressO

This Comment describes a New Jersey Supreme Court in detail, along with the current state of both federal and state leave laws and federal and state pregnancy discrimination laws. Next, this Comment argues that it is the interaction of federal and state leave laws that most often creates a gap in leave and that this gap produces a disparate impact on pregnant employees, which violates the Pregnancy Discrimination Act. It also examines the most common misinterpretations courts make when examining pregnant employees’ requests for recovery under anti-discrimination laws. In conclusion, this Comment advocates for the treatment of pregnancy as one …

The (Neglected) Importance Of Being Lawrence: The Constitutionalization Of Public Employee Rights To Decisional Non-Interference In Private Affairs, Paul M. Secunda

ExpressO

This paper argues that whatever debates continue to stew regarding the true meaning of Lawrence v. Texas, at the very least, Lawrence represents the recognition of an individual's heightened interest in decisional non-interference in private affairs. This is an important constitutional development since a problem under the doctrine of unconstitutional conditions only arises when the government offers a benefit, like government employment, conditioned on the waiver of a preferred constitutional right. Thus, a government employer, post-Lawrence, should be prohibited, under the doctrine of unconstitutional conditions, from firing a government employee who exercises her rights to decisional non-interference in private affairs. …

Law, Economics, And Accommodations In The Internal Labor Market, Seth Harris

ExpressO

This article argues that employers can derive economic benefits from providing their incumbent employees with accommodations in some, perhaps many, circumstances. Thus, an economically rational employer should welcome negotiations over accommodations with their incumbent employees with disabilities as a fertile opportunity to reap increased benefits from its relationship with those employees.

The article applies “internal labor market theory” to assess how employers benefit from providing accommodations. This labor economics theory considers the causes and effects of barriers to competition found in the labor market consisting of an employer’s incumbent workforce. Internal labor market theory holds that these barriers to competition …