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Full-Text Articles in Law
Structural Labor Rights, Hiba Hafiz
Structural Labor Rights, Hiba Hafiz
Michigan Law Review
American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective power against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2 percent in the private sector—a level unequaled since the Great Depression— the vast majority of workers depend only on individual negotiations with employers to lift stagnant wages and ensure upward economic mobility. But decentralized, individual bargaining is not enough. Economists and legal scholars increasingly agree that, absent regulation to protect workers’ collective rights, labor markets naturally strengthen employers’ bargaining power over workers. Existing labor and antitrust law have failed …
Consent, Coercion, And Employment Law, Samuel R. Bagenstos
Consent, Coercion, And Employment Law, Samuel R. Bagenstos
Articles
The Roberts Court has recently handed several high-profile wins in labor and employment law cases to anti-labor and pro-employer forces. This paper argues that those decisions replicate crucial moves made by some infamous Lochner-era cases — and that those same moves continue to underlie key elements of labor and employment doctrine more generally. In particular, these decisions rest on a contestable understanding of free worker choice. This paper begins by examining the key recent Roberts Court decisions and demonstrates that they appear to invoke at least two distinct and conflicting understandings of employee and employer choice. It then turns to …
The New Labor Law, Kate Andrias
The New Labor Law, Kate Andrias
Articles
Labor law is failing. Disfigured by courts, attacked by employers, and rendered inapt by a global and fissured economy, many of labor law’s most ardent proponents have abandoned it altogether. And for good reason: the law that governs collective organization and bargaining among workers has little to offer those it purports to protect. Several scholars have suggested ways to breathe new life into the old regime, yet their proposals do not solve the basic problem. Labor law developed for the New Deal does not provide solutions to today’s inequities. But all hope is not lost. From the remnants of the …
What Does Social Equality Require Of Employers? A Response To Professor Bagenstos, Brishen Rogers
What Does Social Equality Require Of Employers? A Response To Professor Bagenstos, Brishen Rogers
Michigan Law Review First Impressions
Individual employment law can appear a bit like tort law did in the late nineteenth century: an "eclectic gallery of wrongs" united largely by the fact that they do not fit into another doctrinal category. The field has emerged interstitially and today includes an array of state and federal common law and statutory claims not covered by labor law or employment discrimination law. These other subfieldshave foundational statutes: the National Labor Relations Act of 1935 and Title VII of the Civil Rights Act of 1964, respectively. Each was passed in response to a major social conflict, and each defines some …
Bilingualism And Equality: Title Vii Claims For Language Discrimination In The Workplace, James Leonard
Bilingualism And Equality: Title Vii Claims For Language Discrimination In The Workplace, James Leonard
University of Michigan Journal of Law Reform
Linguistic diversity is a fact of contemporary American life. Nearly one in five Americans speak a language other than English in the home, and influxes of immigrants have been a constant feature of American history. The multiplicity of languages in American society has touched nearly all aspects of American culture, and specifically has added new and important challenges to the American workplace. Chief among these new concerns are the growing number of legal claims centered around language discrimination in the workplace. The common vehicle for these claims has been Title VII, and there is considerable support in the academic literature …
One For A, Two For B, And Four Hundred For C: The Widening Gap In Pay Between Executives And Rank And File Employees, Susan J. Stabile
One For A, Two For B, And Four Hundred For C: The Widening Gap In Pay Between Executives And Rank And File Employees, Susan J. Stabile
University of Michigan Journal of Law Reform
This Article, focuses on executive pay in relation to that of rank and file workers. It examines the standard justifications for the vast and increasing pay gap between executives (particularly CEOs) and rank and file workers and finds that such arguments do little more than attempt to justify in economic terms a situation that exists for a very different reason. Instead, the author argues, the real reason such a huge and widening gap in pay between executive and rank and file workers exists is market failure in the mechanisms of setting executive pay, aggravated by the shareholder primacy norm, which …
The Customer Is Always Right… Not! Employer Liability For Third Party Sexual Harassment, Lea B. Vaughn
The Customer Is Always Right… Not! Employer Liability For Third Party Sexual Harassment, Lea B. Vaughn
Michigan Journal of Gender & Law
This article will ask a series of questions. What is third party sexual harassment? Under what conditions does it occur? Does it differ in any significant respects from traditional notions of sexual harassment? Should those differences, if any, make a difference in the way that the legal system addresses third party harassment? And indeed, should the problem be addressed solely through the legal system? What might an employer do to alleviate sexual harassment of this type?
Rearranging Deck Chairs On The Titanic: The Inadequacy Of Modest Proposals To Reform Labor Law, Charles B. Craver
Rearranging Deck Chairs On The Titanic: The Inadequacy Of Modest Proposals To Reform Labor Law, Charles B. Craver
Michigan Law Review
A Review of Agenda for Reform: The Future of Employment Relationships and the Law by William B. Gould IV
Protecting The Whistleblower From Retaliatory Discharge, Martin H. Malin
Protecting The Whistleblower From Retaliatory Discharge, Martin H. Malin
University of Michigan Journal of Law Reform
This approach to the problem of whistleblowing, however, is misguided; the appropriate balance is between the employee's interest in acting in accordance with his individual conscience and his duty of loyalty to his employer. This Article argues that although the law should protect individual acts of whistleblowing once they have occurred, it should not affirmatively encourage whistleblowing. Part I discusses the protection currently available to whistleblowers under the common law, collective bargaining agreements, and the antiretaliation provisions of several important statutes. Part II proposes a general standard of whistleblower protection that is designed to protect individual whistleblowers in appropriate circumstances, …
Wage Garnishment Should Be Prohibited, William T. Kerr
Wage Garnishment Should Be Prohibited, William T. Kerr
University of Michigan Journal of Law Reform
Historically, the statutory treatment of wage garnishment among the states has been characterized primarily by its diversity. Although most states exempt a specified amount of a man's wage from the reach of his creditors, the dollar levels of these exemptions are as various as the methods chosen to compute the amount to be exempted. In addition, legislators, some union spokesmen and some legal commentators have become increasingly aware of the role of wage garnishment in the "debtor-spiral" of easy credit, discharge from employment, bankruptcy and welfare. Inevitably this spiral involves a disproportionate impact on the poor. Impelled by these concerned …