Law Commons^™

The Ministerial Exception: Our Lady Of Guadalupe School And Antidiscrimination Employment Laws, Shelly A. Yeini

Vanderbilt Journal of Transnational Law

The Ministerial Exception (ME) is a legal doctrine providing that antidiscrimination employment laws do not apply to the relationship between religious institutions and their ministers. Such a notion appears in various democracies, as it aims to confront a shared problem: the attempt to solve the clash between antidiscrimination employment laws and religious autonomy. Liberal democracies strive to protect employees from discrimination, as well as to accommodate freedom of religion, which cannot be fulfilled without the existence of religious organizations. While being able to choose their staff is at the heart of the existence of religious institutions, the fulfillment of such …

The Consumer Imaginary: Labor Rights, Human Rights, And Citizen-Consumers In The Global Supply Chain, Kevin Kolben

Vanderbilt Journal of Transnational Law

Consumers are increasingly demanding that the goods and services they consume be produced in a way that meets their social expectations. By extension, they are exhibiting greater willingness to pay more at the cash register for products made in good working conditions, and they are willing to punish companies that do not satisfy these expectations. Driving these "citizen-consumers" is what this Article terms the "consumer imaginary," which is defined as the narratives that consumers tell themselves about the people that make their things--people whom consumers will likely never meet, and whose lived experiences are distant from their own. Policymakers have …

Made In Misery: Mandating Supply Chain Labor Compliance, Julia Zenker

Vanderbilt Journal of Transnational Law

Virtually all consumer products in the developed world are produced in supply chain factories abroad. Media exposes periodically reveal the deplorable working conditions in factories that produce products for world-renowned brands. Public institutions, however, tend to be too weak to enforce local labor laws in the prime jurisdictions for supply chain manufacturing, and the recent efforts of private regulators to maintain labor standards throughout the chains have failed. This Note argues that supply chain labor compliance ought to be mandatory, not aspirational. Several examples of innovative public-private partnerships have delivered on the promise of supply chain labor maintenance. In order …

The Political Economy And Legal Regulation Of Transnational Commercial Surrogate Labor, Cyra A. Choudhury

Vanderbilt Journal of Transnational Law

India's commercial surrogacy business has been the focus of intense media scrutiny for the past decade. In that time, it has grown from a $400 million industry to over $2 billion. While the growth in the surrogacy market has been rapid and widespread, the Indian government has struggled to regulate it as a business, as a medical practice and for the protection of surrogates. After nearly a decade of proposed draft bills, the government has yet to enact comprehensive regulation. It is now clear that the state will not ban such a lucrative source of income. Scholars of surrogacy have …

Human Trafficking And Labor Migration: The Dichotomous Law And Complex Realities Of Filipina Entertainers In South Korea And Suggestions For Integrated And Contextualized Legal Responses, Yoon J. Shin

Vanderbilt Journal of Transnational Law

This Article examines the complex legal situation of Filipina "entertainers" in U.S. military camp towns in South Korea: the individuals located at the intersection of human trafficking and labor migration. The Article investigates how the dichotomous law fails to recognize these entertainers as either trafficking victims or as migrant workers. The law therefore denies proper legal rights and remedies for the serious rights violations they suffer in the destination state. This research demonstrates that these migrants have diverse needs, aspirations, and transnational experiences that embrace both victimhood and agency. It illuminates the fundamental problems of the current global anti-trafficking regime, …

The Point Of A Points System: Attracting Highly Skilled Immigrants The United States Needs And Ensuring Their Success, Carla Tabag

Vanderbilt Journal of Transnational Law

In a globalizing world, labor is an increasingly mobile and competitive resource. Responding to this changing labor market, countries like Canada, the United Kingdom, and Australia have adopted points systems with the goal of attracting talented, highly skilled immigrants. In the United States, however, much of the national focus on immigration remains on deterring illegal immigration rather than attracting immigrants that the United States needs to remain competitive in a globalized world. But attracting skilled immigrants is only one ingredient to a successful points system; a country must also ensure those immigrants are successful and use their talents to the …

Ambivalence And Activism: Employment Discrimination In China, Timothy Webster

Vanderbilt Journal of Transnational Law

Chinese courts have not vigorously enforced many human rights, but a recent string of employment discrimination lawsuits suggests that, given the appropriate conditions, advocacy strategies, and rights at issue, victims can vindicate constitutional and statutory rights to equality in court. Specifically, carriers of the hepatitis B virus (HBV) have used the 2007 Employment Promotion Law to ground legal challenges against employers who discriminate against them in the hiring process. Plaintiffs' relatively high success rate suggests official support for making one prevalent form of discrimination illegal. Central to these lawsuits is a broad network of lawyers, activists, and scholars who actively …

The United States Guest Worker Program: The Need For Reform, Elizabeth Johnston

Vanderbilt Journal of Transnational Law

Although often marginalized, guestworkers are an integral part of the United States economy. In 2006 alone, the U.S. government certified visas for 18,736 temporary workers. The program expanded in subsequent years and continues to grow each year. Despite its broad scope, huge impact on the labor force, and the extensive existing legislation regarding it, the guestworker program has permitted most employers of guestworkers to eschew the regulations or find loopholes, resulting in a system that is largely exploitative. Abuse of workers begins in their home countries, intensifies during the period of employment, and often continues even after employment terminates. Workers …

In Defense Of Transnational Domestic Labor Regulation, David J. Doorey

Vanderbilt Journal of Transnational Law

Transnational domestic labor regulation (TDLR) is unilateral regulation introduced by a government to influence labor practices in foreign jurisdictions. TDLR has the potential to empower foreign workers and influence the balance of power in foreign industrial relations systems in ways that might lead to improved labor conditions. Particularly interesting is the potential for TDLR to harness or steer private labor regulation--the many non-state sources of labor practice governance already active in shaping labor conditions within global supply chains. However, whether governments should try to influence foreign labor practices at all is a controversial question. This Article explores the arguments both …

Reinventing American Immigration Policy For The 21st Century, Krissy A. Katzenstein

Vanderbilt Journal of Transnational Law

With an estimated eleven to twelve million undocumented workers currently in the United States, the need for immigration reform is critical. As lawmakers grapple with the question of how to best meet the needs of the country, they should keep in mind that the United States is a country of immigration. If the U.S. reverts to a guest worker program like that proposed by the Bush administration, it should expect the results that history suggests--worker exploitation, falling wages, deteriorating working conditions, and discrimination. However, proposals calling for immediate permanent legal status also fail to completely address the needs of the …

Multinational Enterprises And Workplace Reproductive Health: Extending Corporate Social Responsibility, Rebecca K. Atkins

Vanderbilt Journal of Transnational Law

Corporate social responsibility is a relatively new approach to the protection of human rights. While the human rights to whole-body health and workplace health are long-standing, the right to reproductive health is a new topic of discussion. This Note examines the right to reproductive health in the workplace and proposes that it would be best protected by imposing an affirmative duty on multi-national enterprises via corporate social responsibility. Origins of human rights, corporate social responsibility, and reproductive health are discussed before turning to the developing stalemate between multi-national enterprises and less developed countries.

The Title Vii Tug-Of-War: Application Of U.S. Employment Discrimination Law Extraterritorially, Latoya S. Brown

Vanderbilt Journal of Transnational Law

Companies around the world increasingly are engaging in cross-border business transactions. Globalization is a must if companies want to continue to be competitive in the marketplace--indeed it is an inevitable reality. However, in the midst of this reality is another reality: the legal implications of establishing operations abroad. Transnational expansion introduces companies to an interesting game of tug-of-war in which companies may find themselves torn between compliance with U.S. law and compliance with the laws of the host country. This Note discusses this tug-of-war in the context of Title VII of the Civil Rights Act of 1964. Over 15 years …

Privileged But Equal? A Comparison Of U.S. And Israeli Notions Of Sex Equality In Employment Law, Leora F. Eisenstadt

Vanderbilt Journal of Transnational Law

Ever-expanding media coverage, scholarship, and popular publications discussing the difficulty of combining work and family suggest that this issue is now the essential locus for gender debate in the United States. The essence of the debate is the meaning of equality: whether it carries the same meaning for women and men, whether biological and sociological differences should impact the understanding of equality, and whether law and social policy should reflect or encourage these differences. Privileged but Equal details the theory of sex equality that is embodied in Israeli employment law and contrasts it with the U.S. approach. The Article suggests …

Enforcing International Labor Standards: The Potential Of The Alien Tort Claims Act, Marisa A. Pagnattaro

Vanderbilt Journal of Transnational Law

Professor Pagnattaro argues that courts should allow claims under the Alien Tort Claims Act (ATCA) to enforce international labor rights for alien workers. She begins by reviewing the history of the ATCA and the developing jurisprudence in the international labor context, including recent and pending cases involving employee ATCA claims against U.S. multinational corporations. After outlining what is necessary to assert an ATCA claim, including what is required to satisfy jurisdictional requirements, to state a claim under the law of nations, and to hold employers liable for violations of the law of nations, she details international foundations which can be …

Labor Standards On Cypriot Ships: Myth And Reality, Iliana Christodoulou-Varotsi, Dmitri A. Pentsov

Vanderbilt Journal of Transnational Law

This Article offers a comprehensive comparative analysis of labor and social security standards on Cypriot and Greek ships. Potential cost savings for shipowners who register their ships in one country rather than the other may result from the absence of a given standard in the country of registration, or a lower or more flexible standard in that country than in the other. The authors conclude that the registration of ships in Cyprus does not provide overall advantages (in terms of "inferior" labor standards) over registration in Greece. Broadly speaking, shipowners may gain certain advantages by registering their ships in Cyprus …

On Virtue And Peace: Creating A Workplace Where People Can Flourish, Caryn L. Beck-Dudley, Steven H. Hanks

Vanderbilt Journal of Transnational Law

In this Article, Professors Beck-Dudley and Hanks explore the virtues necessary for individuals to flourish within a business organization. Through this exploration, they conclude that modern discussions of business ethics fail to account for the value and virtue of peaceableness. Then, focusing on the freedom from conflict aspect of peaceableness, they use Champion Paper Products, Sartell Minnesota Paper Mill, as a case study in the significant improvements in human flourishing and organizational performance that can occur when management and labor choose peaceable solutions to labor conflicts.

Recent Cases, Law Review Editor

Vanderbilt Journal of Transnational Law

Remedies--Fair Labor Standards Act--Private Damage Suit Unavailable to Redress Violations of Child Labor Provisions of the Fair Labor Standards Act

Securities Regulation--Commercial Paper--Promissory Notes with Maturity Not Exceeding Nine Months but Offered to Public as Investment Are "Securities" Within Section 3(a)(10) of the 1934 Act.

Securities Regulation--Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5--A Reorganization in the Form of a Tripartite Merger in Which There Is No Change in the Total Assets Represented by a Share of Stock Does Not Involve a "Purchase or Sale" Within the Meaning of Section 10(b) of The Securities Exchange Act …

Novartis And The U.N. Global Compact Initiative, Lee A. Tavis

Vanderbilt Journal of Transnational Law

The U.N. Global Compact initiative evolved from a challenge posed by Secretary-General Kofi Annan to the business community at the World Economic Forum in Davos in January 1999. "I call on you--individually through your firms, and collectively through your business associations--to embrace, support, and enact a set of core values in the areas of human rights, labor standards and environmental practices." His vision is "to give a human face to the global market." Over a year of intense interaction among business chief executive officers and associations, non-governmental organizations, labor unions, and four U.N. agencies led to the formulation of nine …

The Organizational Model For Workplace Security, Thomas K. Capozzoli

Vanderbilt Journal of Transnational Law

This Article addresses the issue of workplace violence, focusing on the United States and potential terrorist actions in the workplace. The Author begins with an organizational model for workplace security, describing the types of workplace violence, and the factors that may trigger violence. The Article continues with a description of the common behavior traits that violent workers possess, and also describes the "cycle" ultimately leading to workplace violence. In looking more closely at the common types of workplace violence and the characteristics of those who commit workplace violence, the Author provides an organizational model for reducing or preventing workplace violence. …

Groundings Of Voice In Employee Rights, Dana Muir

Vanderbilt Journal of Transnational Law

The 2001 Symposium on Corporate Governance, Stakeholder Accountability, and Sustainable Peace explored possible connections between corporations and sustainable peace. The Symposium's discussions were inspired by the view that liberal values and democratic principles help prevent violent conflict in society. In this Article, the Author discusses the notable ideas expressed in the symposium, including those articulated by Professors Timothy L. Fort, Cindy A. Schipani, and Terry M. Dworkin. The Author posits that formal programs enabling employees as owners and participants in their corporations may promote employee voice and improve corporate governance. Financial participation rights, decision-making participation rights, and "entry" and "exit" …

Workplace Violence And Security: Are There Lessons For Peacemaking?, Frances E. Zollers, Elletta S. Callahan

Vanderbilt Journal of Transnational Law

The workplace can serve as a microcosm for global peace initiatives. The many facets of workplace violence provide various lessons for peacemaking. There are a variety of types and causes of workplace violence. There are also many techniques for dealing with workplace violence. Modern management practices parallel the values that are conducive to peace. Corporate structures that promote trust, participation, and dignity are transportable to the local, national, and global markets for peace.

Teen Prostitution In Japan: Regulation Of Telephone Clubs, Andrew D. Morrison

Vanderbilt Journal of Transnational Law

The history of prostitution in Japan may be traced to the eighth century. Originally, prostitutes carried on their trade individually and independently. Around the thirteenth century, however, the nature of prostitution changed, as prostitutes formed small enterprises located in red-light districts. By the seventeenth century, red-light districts existed throughout Japan.

In 1900, the Japanese government, realizing the widespread proliferation of the prostitution industry, passed the Regulation for Control of Prostitutes. The law regulated prostitution nationwide by requiring prostitutes to register with local government authorities and to undergo regular health inspections. This system continued until the end of World War Two, …

Mandating English Proficiency For College Instructors: States' Responses To "The Ta Problem", Kenneth King

Vanderbilt Journal of Transnational Law

This Note examines the background, provisions, effects, and constitutionality of state legislation mandating English proficiency assessment for college instructors. Such legislation responds to complaints about the comprehensibility of international instructors--particularly teaching assistants--at U.S. colleges and universities. U.S. universities employ large numbers of international instructors in scientific, technical, and business fields. Such employment is only one aspect of a broader U.S. importation of scientific and technical talent. This Note first considers the background and legitimacy of complaints about international instructors, and then examines the background and details of specific state provisions. It discusses the statutes' effects and particular concerns they raise, …

God, Labor, And The Law: The Pursuit Of Religious Equality In Northern Ireland's Workforce, Jane H. Thorpe

Vanderbilt Journal of Transnational Law

In Northern Ireland, a Catholic man is twice as likely to be unemployed as his Protestant counterpart. This employment differential can be attributed directly to the religious sectarianism that has plagued Northern Ireland for almost 400 years. Traditionally, the Protestant community has used economic rights and employment opportunities to maintain its power and authority over the Catholic community. Resolution of this employment differential would be a key step toward achieving peace and unity in Northern Ireland; however, no progress can be made toward this goal until both communities share economic benefits and hardships. In 1989, the British Parliament passed the …

Kalanke V. Freie Hansestadt Bremen: The Significance Of The Kalanke Decision On Future Positive Action Programs In The European Union, Rebecca Means

Vanderbilt Journal of Transnational Law

In the landmark case Kalanke v. Freie Hansestadt Bremen, the European Court of Justice held that a German state law giving women an "absolute and unconditional priority" in the labor market was inconsistent with the European Equal Treatment Directive. Although many Europeans vehemently criticized the Kalanke decision initially, the furor now appears to have subsided. As a result of this decision, however, the European Union is currently re-examining equal treatment policies and will likely provide further guidance to Member States attempting to formulate positive action programs.

This Note first discusses the institutions of the European Union as they relate to …

Mahoney V. Rfe/Rl: An Unexpected Direction For The Foreign Laws Defense, Thomas Wang

Vanderbilt Journal of Transnational Law

A law is only as good, or as powerful, as its exceptions allow it to be. Unless carefully drawn, an exception intended to avoid unjust or impractical applications of a rule can consume the rule itself. In the case of the Age Discrimination in Employment Act and Title VII, which were amended to apply to U.S. citizens working abroad, the "foreign laws defense," as interpreted in Mahoney v. RFE/RL, threatens to defeat the application of the general rule prohibiting discrimination. This Note briefly traces the history of the extraterritorial application of U.S. law and the interests that were served by …

A Draft Labor Code For Minsk: From Byelorussia With Love?, Lucas G. Paglia

Vanderbilt Journal of Transnational Law

Belarus, a former Eastern bloc country located between Russia and Poland, has drafted a comprehensive labor code to govern employment relations. This Note presents the historical underpinnings of the legislation, its major provisions, and its prospects for successfully handling labor disputes as well as encouraging foreign investment. The author first explores the current labor environment in Belarus, especially focusing on the recent privatization of industry, and its amenability to such regulation. The Note then analyzes specific provisions of the labor code and compares them to the National Labor Relations Act in the United States, as well as the conditions under …

Economic Globalization: The Challenge For Arbitrators, Ranee K.L. Panjabi

Vanderbilt Journal of Transnational Law

CHOICE OF LAW IN INTERNATIONAL COMMERCIAL ARBITRATION

By Okezie Chukwumerije

Westport, Connecticut: Quorum Books, 1994. Pp. 219.

Arbitration at the municipal level is becoming more frequently used because it is regarded as a more expeditious process for resolving disputes. In the realm of labor relations, for instance, arbitration is often the dispute resolution method of choice and is incorporated in numerous collective agreements. In an arbitration the two parties usually select an arbitrator and jointly pay the costs of the process. In the collective agreement or contract, the parties stipulate the terms of the procedure that generally bind the arbitrator, …

Changing The Approach To Ending Child Labor: An International Solution To An International Problem, Timothy A. Glut

Vanderbilt Journal of Transnational Law

A recent study by the United States Department of Labor has revealed that oppressive child labor is a serious problem in many countries. This Note begins by examining the international scope of the child labor problem, including the underlying reasons for its continued existence. The Note then discusses measures, both unilateral and multilateral, for curtailing child labor. The author determines that these measures are insufficient to end the child labor problem and discusses potential solutions to the problem. The author concludes that the most effective measure to end child labor would be a multilateral agreement with clear standards and an …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Extraterritorial Employment Standards of the United States: The Regulation of the Overseas Workplace

By James Michael Zimmerman

New York, New York: Quorum Books, 1992. Pp.206.

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Fact-Finding before International Tribunals

Edited by Richard B. Lillich

Irvington-on-Hudson, New York: Transnational Publishers Inc., 1992, Pp. 338.

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International Human Rights Law in the Commonwealth Caribbean

Edited by Angela D. Byre and Bevereley Y. Byfield

Dordrecht, The Netherlands: Martinus Nijhoff Publishers, 1991. Pp. 398.