Law Commons^™

Changemakers: Finding The Perfect Niche, Michael Bowden

Life of the Law School (1993- )

No abstract provided.

Age Diversity, Alexander Boni-Saenz

All Faculty Scholarship

This Article is the first to examine age diversity in the legal literature, mapping out its descriptive, normative, and legal dimensions. Age diversity is a plural concept, as heterogeneity of age can take many forms in various human institutions. Likewise, the normative rationales for these assorted age diversities are rooted in distinct theoretical foundations, making the case for or against age diversity contextual rather than universal. A host of legal rules play a significant role in regulating age diversity, influencing the presence of different generations in the workplace, judiciary, and Congress. Better understanding the nature and consequences of age diversity …

Immigration, Emigration, Fungible Labour And The Retreat From Progressive Taxation, Henry Ordower

All Faculty Scholarship

With emphasis on the US, this chapter explores the role that taxation plays in the movement of people and capital. The chapter addresses the relationship between taxes and retention of capital, including tax incentives for capital investment, shifting tax burdens from capital to labor as progressive taxation wanes, and rules preventing the escape of capital from its current taxing jurisdiction. Next, the discussion moves on to consider how taxes supplement immigration policy to attract capital currently outside the jurisdiction. The chapter then queries whether taxes play any significant role in attracting or retaining skilled labor before identifying how tax trends …

Exploring The Impact Of Taxation On Immigration, Henry Ordower

All Faculty Scholarship

Rules governing admission of immigrants to stable, developed countries vary widely among countries, yet wealthy immigrants with capital to invest and highly educated immigrants receive favorable admission decisions from immigration authorities more frequently and quickly than do conflict and economic refugees who will become part of a substantially fungible labor force. As preferred immigration destination countries limit the number of immigrants they will admit — the U.S. certainly does —, admissions are likely to follow a hierarchy based on expectations that certain immigrants will contribute significantly to the economy and welfare of the destination country in a manner that distinguishes …

Free Trade, Immigrant Workers, And Employment Discrimination, Angela D. Morrison

Faculty Scholarship

This article reframes the outward-looking perspective on workers’ rights provisions in free trade agreements. It argues that those provisions provide an opportunity to reinforce the workplace rights of noncitizen workers in the United States. Scholars and worker advocates have criticized recent free trade agreements for their lack of enforcement mechanisms and protections for workers in developing countries. They argue that this has encouraged a race to the bottom on the part of multi-national corporations who relocate to developing countries to take advantage of cheap labor costs, thereby costing U.S. workers’ jobs.

This article shifts the focus. Instead, it argues that …

Damaged Bodies, Damaged Lives: Immigrant Worker Injuries As Dignity Takings, Jayesh Rathod, Rachel Nadas

Articles in Law Reviews & Other Academic Journals

Government data consistently affirm that foreign-born workers in the U.S. experience high rates of on-the-job illness and injury. This article explores whether—and under what circumstances—these occupational harms suffered by immigrant workers constitute a dignity taking. The article argues that some injuries suffered by foreign-born workers are indirect takings by the state due to the government’s lackluster oversight and limited penalties for violations of occupational safety and health laws. Using a framework of the body as property, the article then explores when work-related injury constitutes an infringement upon a property right. The article contends that the government’s weak enforcement apparatus, coupled …

'And Ain't I A Woman?': Feminism, Immigrant Caregivers, And New Frontiers For Equality, Shirley Lin

Elisabeth Haub School of Law Faculty Publications

This Article argues that feminist and other critical legal theories can address the profound inequalities that immigrant workers face. Part I draws from a body of feminist, political, and social science theories regarding social reproduction to assess the situation of immigrant domestic workers and their recent efforts to claim inclusion in workplace laws and protections. It locates the increasingly carceral dynamics that are expressed in the law and in state infrastructure and continuously undermine immigrant women's economic and social stability, as explained in further detail in Parts L.A and I.B.2, infra. Unbeknownst to many, the present period is the most …

Riding The Wave: Uplifting Labor Organizations Through Immigration Reform, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

In recent years, labor unions in the United States have embraced the immigrants’ rights movement, cognizant that the very future of organized labor depends on its ability to attract immigrant workers and integrate them into union ranks. At the same time, the immigrants’ rights movement has been lauded for its successful organizing models, often drawing upon the vitality and ingenuity of immigrant-based worker centers, which themselves have emerged as alternatives to traditional labor unions. And while the labor and immigrants’ rights movements have engaged in some fruitful collaborations, their mutual support has failed to radically reshape the trajectory of either …

Working On Immigration: Three Models Of Labor And Employment Regulation, Rick Su

Journal Articles

The desire to tailor our immigration system to the economic interests of our nation is as old as its founding. Yet after more than two centuries of regulatory tinkering, we seem no closer to finding the right balance. Contemporary observers largely ascribe this failure to conflicts over immigration. Shifting the focus, I suggest here that longstanding disagreements in the world of economic regulations — in particular, tensions over the government’s role in regulating labor conditions and employment practices — also explains much of the difficulty behind formulating a policy approach to immigration. In other words, we cannot reach a political …

Where You Stand Depends On Where You Sit: Bureaucratic Politics In Federal Workplace Agencies Serving Undocumented Workers, Ming H. Chen

Publications

This Article integrates social science theory about immigrant incorporation and administrative agencies with empirical data about immigrant-serving federal workplace agencies to illuminate the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants' rights can be protected when workplace agencies incorporate immigrants into labor law enforcement in accordance with the agencies' professional ethos and organizational mandates. Building on Miles' Law that "where you stand depends on where you sit," this Article argues that agencies exercise discretion in the face of contested law and in contravention to a political climate hostile to undocumented immigrants for the purpose …

Tensions In Rhetoric And Reality At The Intersection Of Work And Immigration, Jennifer Gordon

Faculty Scholarship

No abstract provided.

Undocumented Workers And Concepts Of Fault: Are Courts Engaged In Legitimate Decisionmaking, Christine N. Cimini

Articles

This Article examines judicial decisionmaking in labor and employment cases involving undocumented workers. Labor and employment laws, designed to protect all workers regardless of immigration status, often conflict with immigration laws designed to deter the employment of undocumented workers. In the absence of clarity as to how these differing policy priorities should interact, courts are left to resolve the conflict. While existing case law appears to lack coherence, this Article identifies a uniform judicial reliance upon “fault-based” factors. This Article offers a structure to understand this developing body of law and evaluates the legitimacy of the fault-based decisionmaking modalities utilized …

Ten Years After Hoffman Plastic Compounds, Inc. V. Nlrb: The Power Of A Labor Law Symbol, Ruben J. Garcia

Scholarly Works

No abstract provided.

A Season Of Change: Reforming The H2b Guest Worker Program, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

INTRODUCTION: Each year, as spring and summer arrive, Americans partake in range of seasonal traditions: beautifying their lawns and gardens; enjoying harvests of fresh fruits, vegetables, and seafood; and attending local fairs and festivals. Although these rituals have become part of the American cultural fabric, few know that they are supported by thousands of temporary guest workers who enter the United States each year under the H-2 visa program.' The H-a program allows U.S employers to petition for seasonal agricultural workers (via the H-2A program) and seasonal nonagricultural workers (via the H-2B program) to work in this country on a …

Protecting Immigrant Workers Through Interagency Cooperation, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

Stephen Lee’s Monitoring Immigration Enforcement offers a promising prescription for resolving the long-standing tension between the workplace enforcement priorities of the Department of Homeland Security (“DHS”) and the efforts by the Department of Labor (“DOL”) to protect the rights of immigrant workers. Lee convincingly describes - often with the aid of rich historical examples - the origins of the chronic imbalance of power between DHS and the DOL, and the limitations of past efforts to synchronize the work of the respective agencies. Lee’s proposal for interagency coordination, in the form of ex ante monitoring by the DOL of worksite enforcement …

People Are Not Bananas: How Immigration Differs From Trade, Jennifer Gordon

Faculty Scholarship

No abstract provided.

Beyond The 'Chilling Effect': Immigrant Worker Behavior And The Regulation Of Occupational Safety & Health, Jayesh Rathod

Articles in Law Reviews & Other Academic Journals

This article forms part of a broader scholarly project that seeks to understand the root causes of immigrant worker injury and fatality trends in the U.S., and the ways in which legal norms and regulatory practices shape these trends. This particular contribution examines the broad range of attributes and experiences that influence immigrant worker behavior relating to occupational safety and health -- in the context of interactions with employers and regulatory bodies, and relating to the choices that workers themselves make about how to perform their work.

Drawing upon scholarship from multiple disciplines, the article encourages a more robust understanding …

Fractured Membership: Deconstructing Territoriality To Secure Rights And Remedies For The Undocumented Worker, D. Carolina Nuñez

Faculty Scholarship

Relied upon but unwelcome, among us but uninvited, undocumented workers in the United States – now numbering over 8 million – labor on the border of inclusion and exclusion, between a status-based conception of membership and a territorial approach to membership. Although mere presence in the U.S. secures undocumented workers many of the same labor protections afforded to authorized workers, undocumented status often forecloses certain remedies otherwise available for employer breaches of those protections. Many commentators have criticized this effective status-based denial of rights to undocumented workers as inimical to the goals underlying labor and immigration law. While this Article …

Embracing Paradox: Three Problems The Nlrb Must Confront To Resist Further Erosion Of Labor Rights In The Expanding Immigrant Workplace, Michael C. Duff

All Faculty Scholarship

This article discusses the Supreme Court's 2002 Hoffman Plastic Compounds opinion, normally considered in terms of its social justice ramifications, from the different perspective of NLRB attorneys tasked with pursuing enforcement of the National Labor Relations Act (NLRA) under the conceptually (and practically) odd rubric that some NLRA employees (unauthorized workers) have no remedy under the NLRA. The article focuses on three problems evincing paradox. First, NLRB attorneys prosecuting cases involving these workers will probably gain knowledge of unlawful background immigration conduct. To what extent must the attorneys disclose it, and to whom? Second, NLRB attorneys are extraordinarily reliant on …

Ask, Don’T Tell: Ethical Issues Surrounding Undocumented Workers’ Status In Employment Litigation, Christine N. Cimini

Articles

The presence of an estimated 11.5 million undocumented immigrants in the United States, of which an estimated 7.2 million are working, has become a flashpoint in the emerging national debate about immigration. Given these statistics, it is not surprising that many undocumented workers suffer injuries in the workplace that are typically legally cognizable. Even though undocumented workers are entitled to a number of legal remedies related to their employment, seeking legal relief often raises heightened concerns about the disclosure of their status. This article explores lawyers' increasingly complex ethical obligations with regard to a client's immigration status in the context …

Decentering The Firm: The Limited Liability Company And Low Wage Immigrant Women Workers, Miriam A. Cherry

All Faculty Scholarship

Congress is now considering radical changes to the immigration system. This article looks at the immigration issue as a labor and employment law question, and proposes a possible solution based on this approach.

I suggest that forming Limited Liability Companies (LLCs) will benefit low-wage immigrant women workers by transforming them into business owners. By using existing legal structures to their benefit, low-wage women workers can curtail at least a portion of the exploitation that they currently experience. Instead of being hired to perform a job, having the intermediary take a cut, and then pay them some amount out of that, …

Immigration Restrictions As Employment Discrimination, Howard F. Chang

All Faculty Scholarship

In this paper, I analyze restrictions on immigration to the United States as a form of government-mandated employment discrimination against aliens. Through our immigration laws, we deny aliens access to valuable employment opportunities that are open to natives. Under our immigration and nationality laws, we base this discrimination explicitly on circumstances of birth beyond the control of the alien. I argue that immigration restrictions thereby violate our liberal ideals of equality, which require a cosmopolitan perspective that extends equal concern to all individuals. Furthermore, even if we assume a less demanding moral theory that allows us to give the interests …

Safeguarding Employment For U.S. Workers: Do Undocumenteds Take Away Jobs?, Stephen A. Rosenbaum

Publications

For more than five years, the Immigration and Naturalization Service (hereinafter, INS) has been stymied in its efforts to implement a rule prohibiting aliens from working while out on bond pending deportation or exclusion. Like defendants awaiting trial in the criminal justice system, aliens charged with violating U.S. immigration laws are typically allowed to post bond pending a hearing on the merits. The U.S. Attorney General has the authority to prescribe conditions governing an alien's release under bond, a period that could take a year or more. From 1973 to 1983, INS regulations authorized District Directors, with approval from the …