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Full-Text Articles in Law

Tax Law’S Workplace Shift, Shu-Yi Oei, Diane M. Ring Jan 2020

Tax Law’S Workplace Shift, Shu-Yi Oei, Diane M. Ring

Faculty Scholarship

In December 2017, Congress passed major tax reform. The reform included an important new provision that granted independent contractors and other pass-through taxpayers—but not employees or corporations—a potential tax deduction equal to 20% of their qualified business income. Critics have argued that this new deduction (codified at 26 U.S.C. § 199A) could lead to a widespread shift toward independent contractor jobs as workers seek to reduce taxes paid. This shift could cause workers to lose important employee protections and leave them more economically vulnerable.

This Article examines whether this new tax provision will create a large-scale workplace shift and, if …


The Faces Of Coercion: The Legal Regulation Of Labor Conflict In Ontario, 1880-1889, Eric Tucker Feb 2015

The Faces Of Coercion: The Legal Regulation Of Labor Conflict In Ontario, 1880-1889, Eric Tucker

Eric M. Tucker

This article is part of a larger study of Canadian labor law before the advent of statutory collective bargaining, which questions the traditional periodization and the meanings of the categories. It is often an un-articulated premise that the exercise by employers of their superior economic power, as imparted and structured through the law of property and contract, is not coercion. Rather, the analysis is restricted to direct state coercion, exercised through the criminal law, the police, and the injunction. This framework produces a partial view of the role of law and interferes with an analysis of the strategic choices made …


Industry And Humanity Revisited: Everything Old Is New Again: Review Of Paul C. Weiler, Governing The Workplace, Eric Tucker Feb 2015

Industry And Humanity Revisited: Everything Old Is New Again: Review Of Paul C. Weiler, Governing The Workplace, Eric Tucker

Eric M. Tucker

The decline of American unionism is now a well-documented phenomenon. Its causes and consequences, however, remain the subject of intense debate. Regardless of one’s view of this development, it clearly poses a challenge to the traditional techniques for the legal regulation of the employment relationship, and especially for state-sponsored collective bargaining which has been the centerpiece of American labour policy since the enactment of the Wagner Act in 1935. It is this crisis in American labour and employment law which Paul C. Weiler seeks to address in his new book, “Governing the Workplace: The Future of Labor and Employment Law”. …


"That Indefinite Area Of Toleration": Criminal Conspiracy And Trade Unions In Ontario, 1837-77, Eric Tucker Feb 2015

"That Indefinite Area Of Toleration": Criminal Conspiracy And Trade Unions In Ontario, 1837-77, Eric Tucker

Eric M. Tucker

During the first three quarters of the nineteenth century, the question of whether trade unions in Ontario were criminal conspiracies under common law was never clearly determined. By examining the development and interaction of the legal and social zones of toleration we can illuminate how law was shaped by and shaped early struggles between workers and employers. The statutory reforms of 1872 clearly defined a narrow zone of legal toleration in which trade unions were accepted as labour market organizations while the means they could to pursue their objectives were restricted. The contours of industrial legality which began to emerge …


Renorming Labour Law: Can We Escape Labour Law's Recurring Regulatory Dilemmas?, Eric Tucker Feb 2015

Renorming Labour Law: Can We Escape Labour Law's Recurring Regulatory Dilemmas?, Eric Tucker

Eric M. Tucker

Historically, protective labour law pushed back against capitalist labour markets by facilitating workers’ collective action and setting minimum employment standards based on social norms. Although the possibilities, limits and desirability of such a project were viewed differently in classical, Marxist and pluralist political economy, each perspective understood that the pursuit of protective labour law would produce recurring regulatory dilemmas requiring trade-offs between efficiency, equity and voice and/or between workers’ and employers’ interests. Recently, some scholars have argued that labour law needs to be renormed in ways that are market constituting rather than market constraining, and that this change would avoid …


Making The Workplace 'Safe' In Capitalism: The Enforcement Of Factory Legislation In Nineteenth Century Ontario, Eric Tucker Feb 2015

Making The Workplace 'Safe' In Capitalism: The Enforcement Of Factory Legislation In Nineteenth Century Ontario, Eric Tucker

Eric M. Tucker

The development of industrial capitalism in the second half of the nineteenth century in Ontario brought new and more serious hazards into the workplace and drew women and children into the waged labour force. As a result of working class lobbying and the efforts of middle class reformers, the state empowered itself to regulate health and safety conditions in factories and to protect child and female labour. The implementation of these regulations was left to an inspectorate which was armed with substantial legal powers to enforce the law. These powers were rarely invoked by the inspectors. However, the failure to …


Worker Participation In Health And Safety Regulation: Lessons From Sweden, Eric Tucker Feb 2015

Worker Participation In Health And Safety Regulation: Lessons From Sweden, Eric Tucker

Eric M. Tucker

The toll capitalist production takes on the lives and health of workers has been, and continues to be one of its least acceptable features. For this reason, the labour movement and political parties seeking labour's support have often made reform of occupational health and safety regulation a major objective. In recent years, for example, the New Democratic Party in Ontario has vociferously criticized the failures of the governments of the day to protect adequately the workers in the province. Their recent electoral success provides a great opportunity to improve the work environment and to strengthen the ability of the labour …


Pluralism Or Fragmentation?: The Twentieth-Century Employment Law Regime In Canada, Judy Fudge, Eric Tucker Feb 2015

Pluralism Or Fragmentation?: The Twentieth-Century Employment Law Regime In Canada, Judy Fudge, Eric Tucker

Eric M. Tucker

In 1947, Bora Laskin, the doyen of Canadian collective bargaining law, remarked that "Labour relations as a matter for legal study... has outgrown any confinement to a section of the law of torts or to a corner of the criminal law. Similarly, and from another standpoint, it has burst the narrow bounds of master and servant." That standpoint was liberal pluralism, which comprises collective bargaining legislation administered by independent labour boards and a system of grievance arbitration to enforce collective agreements. After World War II, it came to dominate our understanding of labour relations law such that, according to Laskin, …


The Determination Of Occupational Health And Safety Standards In Ontario 1860-1982: From Markets To Politics To...?, Eric Tucker Feb 2015

The Determination Of Occupational Health And Safety Standards In Ontario 1860-1982: From Markets To Politics To...?, Eric Tucker

Eric M. Tucker

The author reviews the historical development of the decision-making frameworks within which courts and the Legislature have made choices regarding the allocation of risks to health and safety in the workplace. Arguing that this development has been conditioned by the necessity of satisfying in a capitalist democracy conflicting demands to facilitate capital accumulation and to justify to the electorate the manner in which choices regarding the structure of the processes of production have been made, the author contends that recent pressure to adopt cost-benefit analysis to satisfy the demands of legitimation and accumulation, and challenges its adequacy as a normative …


Relationships Of Trust And Confidence In The Workplace, Deborah A. Demott Jan 2015

Relationships Of Trust And Confidence In The Workplace, Deborah A. Demott

Faculty Scholarship

No abstract provided.


Book Review: A Life In Struggle With The Law - Review Of: J. B. Mclachlan: A Biography, By David Frank, Eric Tucker Jul 2014

Book Review: A Life In Struggle With The Law - Review Of: J. B. Mclachlan: A Biography, By David Frank, Eric Tucker

Eric M. Tucker

No abstract provided.


Labour Law, Eric M. Tucker Jul 2014

Labour Law, Eric M. Tucker

Eric M. Tucker

No abstract provided.


Voices At Work In North America: Introduction, Sara Slinn, Eric Tucker Jul 2014

Voices At Work In North America: Introduction, Sara Slinn, Eric Tucker

Eric M. Tucker

No abstract provided.


New Approaches To Enforcement And Compliance With Labour Regulatory Standards: The Case Of Ontario, Canada, Leah F. Vosko, Eric Tucker, Mary Gellatly, Mark P. Thomas Jul 2014

New Approaches To Enforcement And Compliance With Labour Regulatory Standards: The Case Of Ontario, Canada, Leah F. Vosko, Eric Tucker, Mary Gellatly, Mark P. Thomas

Eric M. Tucker

This report maps current enforcement and compliance measures and practices in Ontario’s regulation of employment, particularly as they relate to precarious employment. It evaluates the effectiveness of Ontario’s enforcement regimes, focusing on Employment Standards (ES) and Occupational Health and Safety (OHS) legislation, and sets these regimes in the context of those operating in jurisdictions across and outside Canada. Through this process, it identifies and evaluates potential reforms to improve regulatory effectiveness, particularly for workers in precarious jobs. The central argument is that there are fundamental deficiencies in both of these enforcement regimes: each, albeit in different ways, is out of …


The Law Of Employers' Liability In Ontario 1861-1900: The Search For A Theory, Eric Tucker Jul 2014

The Law Of Employers' Liability In Ontario 1861-1900: The Search For A Theory, Eric Tucker

Eric M. Tucker

In examining developments in Ontario's law of employers' liability during the latter half of the nineteenth century, Professor Tucker notes the striking changes - in doctrine, style of reasoning and judicial attitude - toward compensation for injured workers that came about following legislative modification of the common law in this area in 1886. He then discusses a number of theoretical frameworks that might explain the changes in legal response to industrial capitalism in that period, and finds that they do not adequately account for the observed changes. Finally, he develops the outline of a theory of the relative autonomy of …


Employment Standards Legislation, Eric M. Tucker Jul 2014

Employment Standards Legislation, Eric M. Tucker

Eric M. Tucker

No abstract provided.


“Rights Without Remedies”: Enforcing Employment Standards In Ontario By Maximizing Voice Among Workers In Precarious Jobs, Leah F. Vosko Apr 2013

“Rights Without Remedies”: Enforcing Employment Standards In Ontario By Maximizing Voice Among Workers In Precarious Jobs, Leah F. Vosko

Osgoode Hall Law Journal

Workers in Ontario, Canada are on the edge of a crisis in the enforcement of their minimum employment standards (ES). This crisis is shaped not only by well-documented deficiencies in the scope of labour protection but by the fact that the administration of the ES system has not kept pace with the increasing number of workers and workplaces requiring protection under the province’s employment standards act. Coupled with an outmoded complaint-based system, the dearth of support for ES enforcement is cultivating a situation in which an unprecedented number of workers are bearers of rights without genuine opportunities for redress. Responding …


Solving The Problem From Hell: Tripartism As A Strategy For Addressing Labour Standards Non-Compliance In The United States, Janice Fine Apr 2013

Solving The Problem From Hell: Tripartism As A Strategy For Addressing Labour Standards Non-Compliance In The United States, Janice Fine

Osgoode Hall Law Journal

The crises of wage theft and industrial accidents in low-wage America reflect erosion of the social contract but they also reflect a crisis in labour standards enforcement. This article draws upon archival material, case studies, and interviews to make the case for tripartism—an enforcement regime that partners workers’ organizations with government inspectors to patrol workers’ industries and labour markets for unfair competition. It extends to the federal level previous work in which Jennifer Gordon and i have documented dynamic contemporary examples of tripartism at the state and local levels. The article explores historical precedents for tripartist collaboration on the federal …


The Supreme Labor Court In Nazi Germany: A Jurisprudential Analysis, Marc Linder Nov 2012

The Supreme Labor Court In Nazi Germany: A Jurisprudential Analysis, Marc Linder

Marc Linder

No abstract provided.


A Model Of Responsive Workplace Law, David J. Doorey Jul 2012

A Model Of Responsive Workplace Law, David J. Doorey

Osgoode Hall Law Journal

The North American model of workplace law is broken, characterized by declining frequency of collective bargaining, high levels of non-compliance with employment regulation, and political deadlock. This paper explores whether the theory of “decentred regulation” offers useful insights into the challenge of improving compliance with employment standards laws. It argues that the dominant political perspective on workplace regulation today is managerialist. Politicians with a managerialist orientation reject both the pluralist idea that collective bargaining is always preferred and the neoclassical view that it never is. Managerialists accept a role for employment regulation and unions, particularly in dealing with recalcitrant employers …


Review Of Understanding Labor And Employment Law In China, By Ronald C.Brown, Nicholas C. Howson Jan 2010

Review Of Understanding Labor And Employment Law In China, By Ronald C.Brown, Nicholas C. Howson

Reviews

Any attempt to analyze China’s comprehensive labor reform over the past three decades faces at least two dilemmas. First, the analyst must confront the task of describing how the Chinese state has dismantled the “work unit” (or danwei)- based “iron rice bowl” employment and entitlements system, replacing that comforting but low-production employment and social security scheme with formally-proclaimed legal rights and institutions apparently designed to protect employees in a functioning labor market. Second, the analyst must track how the state’s commitment (at all levels of government) to implementation of proclaimed legal and institutional protections has waxed and waned, based upon …


Defamation In Employment Investigations: Bahr V. Boise Cascade Corporation And O'Donnell V. City Of Buffalo, Kristin Berger Parker, Ellen G. Sampson Jan 2010

Defamation In Employment Investigations: Bahr V. Boise Cascade Corporation And O'Donnell V. City Of Buffalo, Kristin Berger Parker, Ellen G. Sampson

Journal of Law and Practice

No abstract provided.


Brief Amicus Curiae Of The National Academy Of Arbitrators In Support Of Respondents, 14 Penn Plaza V. Pyett, No. 07-581 (U.S. June 27, 2008), James Oldham Jun 2008

Brief Amicus Curiae Of The National Academy Of Arbitrators In Support Of Respondents, 14 Penn Plaza V. Pyett, No. 07-581 (U.S. June 27, 2008), James Oldham

U.S. Supreme Court Briefs

No abstract provided.


Leading By Example: Making Government A Model For Hiring And Retaining Older Workers: Hearing Before The S. Spec. Comm. On Aging, 110th Cong., Apr. 30, 2008 (Statement Of Chai R. Feldblum, Geo. U. L. Center), Chai R. Feldblum Apr 2008

Leading By Example: Making Government A Model For Hiring And Retaining Older Workers: Hearing Before The S. Spec. Comm. On Aging, 110th Cong., Apr. 30, 2008 (Statement Of Chai R. Feldblum, Geo. U. L. Center), Chai R. Feldblum

Testimony Before Congress

No abstract provided.


Reply Brief For Petitioner, Engquist V. Oregon Department Of Agriculture, No. 07-474 (U.S. April 9, 2008), Justin Florence, Mathew Gerke, Neal K. Katyal Apr 2008

Reply Brief For Petitioner, Engquist V. Oregon Department Of Agriculture, No. 07-474 (U.S. April 9, 2008), Justin Florence, Mathew Gerke, Neal K. Katyal

U.S. Supreme Court Briefs

No abstract provided.


Brief Of Petitioner, Engquist V. Oregon Dept. Of Agriculture, No. 07-474 (U.S. Feb. 20, 2008), Justin Florence, Mathew Gerke, Neal K. Katyal Feb 2008

Brief Of Petitioner, Engquist V. Oregon Dept. Of Agriculture, No. 07-474 (U.S. Feb. 20, 2008), Justin Florence, Mathew Gerke, Neal K. Katyal

U.S. Supreme Court Briefs

No abstract provided.


Fulfilling The Promise Of The National Labor Relations Act: A Review Of Taking Back The Worker's Law, Ann C. Hodges Oct 2006

Fulfilling The Promise Of The National Labor Relations Act: A Review Of Taking Back The Worker's Law, Ann C. Hodges

Law Faculty Publications

Ellen Dannin's excellent book, Taking Back the Workers' Law, reminds us of the importance of labor as reflected in the enactment of the National Labor Relations Act in 1935.


Fragmenting Work And Fragmenting Organizations: The Contract Of Employment And The Scope Of Labour Regulation, Judy Fudge Oct 2006

Fragmenting Work And Fragmenting Organizations: The Contract Of Employment And The Scope Of Labour Regulation, Judy Fudge

Osgoode Hall Law Journal

This article diagnoses the conceptual and normative crisis of the scope of labour protection as resulting from the conception of employment as a personal and bilateral contract between an employee and a unitary employer that is characterized by the employee's subordination. It argues that the related fragmentation of organizations and fragmentation of work reveals the extent of the problem with this legal conceptualization of employment. The article offers an approach to reconceptualizing the scope of labour protection that is based on an understanding of personal work arrangements and enterprises as activities. It justifies this approach in terms of the goals …


David Feller, Senior Partner, Michael H. Gottesman Jan 2003

David Feller, Senior Partner, Michael H. Gottesman

Georgetown Law Faculty Publications and Other Works

While in law school, in the late 1950's, I decided that I wanted a career in labor law, representing unions. I asked my labor law professor what firms I should consider. He told me there was one firm nationwide that stood out from all the rest: Goldberg, Feller and Bredhoff. He warned, though, that the firm was very small, and the chances of getting a job there remote. I did some research and discovered that the firm had only four lawyers: three partners (Arthur Goldberg, Dave Feller, and Elliot Bredhoft), and one associate (Jerry Anker). The firm was General Counsel …


Twenty Years Of Labour Law And The Charter, Dianne Pothier Jul 2002

Twenty Years Of Labour Law And The Charter, Dianne Pothier

Osgoode Hall Law Journal

This article critically reviews the Charter jurisprudence of the Supreme Court of Canada relating to labour law. The rejection of the right to strike and to bargain collectively as part of freedom of association reflect substantial judicial deference to legislative policy choices. Recently, however, a constitutional right of unfair labour protection for particularly vulnerable workers shows some judicial willingness to intervene. While freedom of expression provides significant scope to union supporters, picketing and leafleting are still subject to wide restraint, the exact parameters of which remain unclear. The Charter has had only a modest effect on labour law. Even successful …