Law Commons^™

Why France Needs To Collect Data On Racial Identity . . . In A French Way., David B. Oppenheimer

David B Oppenheimer

Will The Real "Che" Guevara Please Stand Up? Labor And Authoritarianism In Sandinista Nicaragua, Stephen Diamond

Stephen F. Diamond

This paper examines the impact of authoritarian left theory, in particular that of “Che” Guevara, on labor rights during the Sandinista’s Nicaraguan revolution. This is important because of the current revival of movements like that of Hugo Chavez in Venezuela that rely on similar approaches to labor and human rights issues as that of the original Sandinista movement. In addition, there is widespread interest today in “Che” Guevara, yet little is known or understood about his actual politics while in power during the early years of the Cuban revolution. In addition, there is increasing sympathy for such authoritarian approaches to …

Reservists Are Like Pregnant Women: A Fertile Battleground For A Reinterpretation Of Userra, Brian Kanner

Brian Kanner

The article examines the Department of Labor’s (“DOL”) newly issued regulations of the Uniformed Services Employment and Reemployment Act of 1994—the act that guarantees workplace non-discrimination and reemployment rights to our military reservists. Under the regulations, reservists are given non-seniority rights only if the employer offers them to “similarly situated” non-military employees on a “comparable” non-military leave. Making comparisons to pregnant women subject to policies formed for a male-centric workplace, I argue that the assessment for determining a reservist’s non-seniority rights is inherently disingenuous: what employee is truly similarly situated to a reservist called to duty and what non-military leave …

Reflections On The Technicolor Right To Association In American Labor And Employment Law, Paul M. Secunda

Paul M. Secunda

It is time to rethink how the United States enforces the right of association in the workplace. The proliferation of political associational rights, intimate association rights, and expressive association rights in the constitutional sphere over the last thirty years has made the scope of this fundamental civil liberty confusing and hard to enforce. Outside of the constitutional framework, which generally applies only to public employees, low union density and the lack of common law associational claims have made private-sector employees' associational rights vulnerable. The unfortunate consequence may be that American workers currently enjoy less associational freedoms than almost any other …

The Employment Termination Equity Act: Finding A Compromise Between Employment At-Will And Just Cause , Nicole B. Porter

Nicole B. Porter

Many scholars have criticized the harshness of the employment at-will presumption, whereby an employer can terminate an employee for good reason, bad reason, or no reason at all. Unlike other scholarship; however, this proposal adopts a novel approach to the problem of the at-will presumption. Instead of suggesting that the at-will presumption should be replaced with a just cause standard, this article suggests a compromise statute, which I call the Employment Termination Equity Act (ETEA). Under ETEA, employers would be free to terminate unproductive or poorly performing employees, without having the difficult burden of proving just cause. However, certain enumerated …

State Anti-Discrimination Statutes And Implied Preemption Of Common Law Torts: Valuing The Common Law, Jarod S. Gonzalez

Jarod S. Gonzalez

Many states have their own antidiscrimination statute that, like federal law, prohibits discrimination in employment because of prohibited characteristics such as race, sex, age, religion, national origin, and disability. In certain cases, a particular set of facts involving sexual, racial, or disability harassment could satisfy the required elements of a state common law tort and a state statutory antidiscrimination claim. It benefits the aggrieved plaintiff to pursue both a common law tort action and a state statutory discrimination action against the employer when the common law tort provides for greater remedies, as is sometimes the case. But when a common …

Due Process In Employment Arbitration: The State Of The Law And The Need For Self-Regulation, Martin H. Malin

Martin H. Malin

No abstract provided.

To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz

Steven L Schwarcz

In recent years, companies have been shifting much of their transactional legal work from outside law firms to in-house lawyers, and some large companies now staff transactions almost exclusively in-house. Although this transformation redefines the very nature of the business lawyer, scholars have largely ignored it. This article seeks to remedy that omission, using empirical evidence as well as economic theory to help explain why in-house lawyers are taking over, and whether they are likely to continue to take over, these functions and roles of outside lawyers. The findings are surprising, suggesting that in-house lawyers may now be performing as …

Webmail At Work: The Case For Protection Against Employer Monitoring , Marc A. Sherman

Marc Adam Sherman

This paper is about privacy in the workplace. Specifically, I address the issue of employer monitoring of employee email. The law allows employers to monitor their workers’ email – even when messages contain private information. However, although the law is clear with respect to employer-provided email, it is not yet defined as to webmail. That is – this paper shows that relevant statutes and court decisions generally have not yet addressed the privacy issues that arise when an employer monitors email sent by an employee via the employee’s personal web-based email account.

After revealing this webmail gap in the law, …

"Avoiding Harm Otherwise": Reframing Women Employees' Responses To The Harms Of Sexual Harassment, Margaret Johnson

Margaret E Johnson

This article concerns the concepts of employee harm and harm avoidance within the liability framework for hostile work environment sexual harassment by a supervisor. Whether an employer is liable for supervisor sexual harassment depends in part on whether or not the employee avoids her harm or mitigates her damages resulting from the sexual harassment. Despite the law’s interest in employee’s harm avoidance, courts have failed to fully explore the vast array of harms resulting from sexual harassment and the variety of ways in which an employee avoids these multiple harms. This article reframes the legal discussion of an employee’s actions …

To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz

Steven L Schwarcz

In recent years, companies have been shifting much of their transactional legal work from outside law firms to in-house lawyers, and some large companies now staff transactions almost exclusively in-house. Although this transformation redefines the very nature of the business lawyer, scholars have largely ignored it. This article seeks to remedy that omission, using empirical evidence as well as economic theory to help explain why in-house lawyers are taking over, and whether they are likely to continue to take over, these functions and roles of outside lawyers. The findings are surprising, suggesting that in-house lawyers may now be performing as …

To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz

Steven L Schwarcz

No abstract provided.

Fired For Blogging: Are There Legal Protections For Employees Who Blog?, Robert Sprague

Robert Sprague

No abstract provided.

Googling Job Applicants: Incorporating Personal Information Into Hiring Decisions, Robert Sprague

Robert Sprague

No abstract provided.

From Taylorism To The Omnipticon: Expanding Employee Surveillance Beyond The Workplace, Robert Sprague

Robert Sprague

No abstract provided.