Law Commons^™

Unbundling Social Security From The Payroll Tax, Henry Ordower

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To preserve social security as a welfare program primarily for older individuals and to ameliorate the distributional inequity of funding social security across income and wealth levels, this article recommends unbundling the benefit side of social security from its longstanding payroll tax funding mechanism. The article recommends replacing the payroll tax revenue with a budget allocation from general revenues accompanied by both revenue raisers and benefit limitations. Income tax rate increases linked to repeal of the FICA tax and tax expenditure limitations would enhance income tax revenue. Modifying social security benefits from their current overinclusive, entitlement structure for all to …

President Biden's Executive Order On Competition: An Antitrust Analysis, Herbert J. Hovenkamp

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In July, 2021, President Biden signed a far ranging Executive Order directed to promoting competition in the American economy. This paper analyzes issues covered by the Order that are most likely to affect the scope and enforcement of antitrust law. The only passage that the Executive Order quoted from a Supreme Court antitrust decision captures its antitrust ideology well – that the Sherman Act:

rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time …

A Miser’S Rule Of Reason: The Supreme Court And Antitrust Limits On Student Athlete Compensation, Herbert J. Hovenkamp

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The unanimous Supreme Court decision in NCAA v. Alston is its most important probe of antitrust’s rule of reason in decades. The decision implicates several issues, including the role of antitrust in labor markets, how antitrust applies to institutions that have an educational mission as well as involvement in a large commercial enterprise, and how much leeway district courts should have in creating decrees that contemplate ongoing administration.

The Court accepted what has come to be the accepted framework: the plaintiff must make out a prima facie case of competitive harm. Then the burden shifts to the defendant to produce …

Fifty More Years Of Ineffable Quo? Workers’ Compensation And The Right To Personal Security, Michael C. Duff

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During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its …

Employment Status For “Essential Workers”: The Case For Gig Worker Parity, Miriam A. Cherry

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This Article explores what I call the “essential worker paradox”: During the pandemic, gig workers have been recognized as providing critical and important services. At the same time, the law has yet to recognize gig workers fully and to commit to providing them with the same basic protections as employees. The Article argues that the stark difference in treatment between gig workers and regular employees has long created unfairness. While views of gig work as a side hustle or work driven by customer convenience may have prevailed in the past, now the meal delivery driver and the on-demand grocery shopper …

Block Rewards, Carried Interests, And Other Valuation Quandaries In Taxing Compensation, Henry M. Ordower

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In this article, Ordower contextualizes block rewards litigation with historical failures to tax compensation income paid in kind. Tax fairness principles demand current taxation of the noneconomically diluting block rewards’ market value.

What Covid-19 Laid Bare: Adventures In Workers’ Compensation Causation, Michael C. Duff

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This essay performs a close analysis of workers’ compensation coverage of COVID-19 and arrives at the conclusion that it should not be “impossible” to prove in a legal sense that an employee’s COVID-19 was caused by work. Scientific proof is not the same as legal proof: workers’ compensation law has never required that claims must be supported by irrefutable scientific proof of workplace causation. Yet repeatedly one heard this suggestion during public discussion on workers’ compensation coverage of employees.

Still, there is good evidence that even when workers’ compensation undisputedly covers work-related disease employers seldom pay benefits (and states do …

Age Diversity, Alexander Boni-Saenz

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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 …

The Functional Operation Of Workers’ Compensation Covid Presumptions, Michael C. Duff

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During 2020, a number of U.S. states implemented workers' compensation COVID-19 presumptions. This short informal paper defines and explains legal presumptions generally and then discusses the workers' compensation presumptions. The paper contends that at this juncture it is not clear whether states intended to enact "Thayer-Wigmore" or "Morgan" presumptions; but if they operate as Thayer-Wigmore presumptions they will not do workers' compensation claimants much good in the context of non-jury proceedings presided over by administrative law judges.

Challenges For Black Workers After 2020: Antiracism In The Gig Economy?, Michael C. Duff

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Black workers’ fortunes in the coming decades are tied to the expansion of the Gig economy, the impact of which is to destroy employee status. Because much antiracism law and policy has been transmitted to society through the medium of employment law, the disappearance of employee status should be of concern to all foes of racism. This short essay argues that Section 1981 of the Civil Rights Act of 1866 should be expanded to cover all forms of racist workplace conduct. Regulatory arbitrage will continue to challenge the definition of employment for the foreseeable future. It is fitting that one …

Artificial Intelligence And The Challenges Of Workplace Discrimination And Privacy, Pauline Kim, Matthew T. Bodie

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Employers are increasingly relying on artificially intelligent (AI) systems to recruit, select, and manage their workforces, raising fears that these systems may subject workers to discriminatory, invasive, or otherwise unfair treatment. This article reviews those concerns and provides an overview of how current laws may apply, focusing on two particular problems: discrimination on the basis of protected characteristics like race, sex, or disability, and the invasion of workers’ privacy engendered by workplace AI systems. It discusses the ways in which relying on AI to make personnel decisions can produce discriminatory outcomes and how current law might apply. It then explores …

Dispatch – United States: “Proposition 22: A Vote On Gig Worker Status In California”, Miriam Cherry

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Under California court decisions and then the California Legislature's 2019 AB5 bill, gig workers were poised to become employees under the law. But all that changed when in November 2020 the voters approved Proposition 22, which provides for a complicated set of new rules that gives gig workers some rights of employees, but not others, (like the right to bargain collectively). This "Dispatch" examines the events around the passage of Proposition 22 in more detail.

Restoration: The Role Stakeholder Governance Must Play In Recreating A Fair And Sustainable American Economy A Reply To Professor Rock, Leo E. Strine Jr.

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In his excellent article, For Whom is the Corporation Managed in 2020?: The Debate Over Corporate Purpose, Professor Edward Rock articulates his understanding of the debate over corporate purpose. This reply supports Professor Rock’s depiction of the current state of corporate law in the United States. It also accepts Professor Rock’s contention that finance and law and economics professors tend to equate the value of corporations to society solely with the value of their equity. But, I employ a less academic lens on the current debate about corporate purpose, and am more optimistic about proposals to change our corporate governance …

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

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This essay reviews Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020), which explores the changes in legal imagination that accompanied the rise of workers' compensation programs. The essay foregrounds Holdren’s insights about disability. Injury Impoverished illustrates the meaning and material consequences that the law has given to work-related impairments over time and documents the naturalization of disability-based exclusion from the formal labor market. In the present day, with so many social benefits tied to employment, this exclusion is particularly troubling.

Bostock Was Bogus: Textualism, Pluralism, And Title Vii, Mitchell N. Berman, Guha Krishnamurthi

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In Bostock v. Clayton County, one of the blockbuster cases from its 2019 Term, the Supreme Court held that federal antidiscrimination law prohibits employment discrimination on grounds of sexual orientation and gender identity. Unsurprisingly, the result won wide acclaim in the mainstream legal and popular media. Results aside, however, the reaction to Justice Neil Gorsuch’s majority opinion, which purported to ground the outcome in a textualist approach to statutory interpretation, was more mixed. The great majority of commentators, both liberal and conservative, praised Gorsuch for what they deemed a careful and sophisticated—even “magnificent” and “exemplary”—application of textualist principles, while …

From Mandates To Governance: Restructuring The Employment Relationship, Brett Mcdonnell, Matthew T. Bodie

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Employers are saddled with a dizzying array of responsibilities to their employees. Meant to advance a wide array of workplace policies, these demands have saddled employment with the burden of numerous social ends. However, that system has increasingly come under strain, as companies seek to shed employment relationships and workers lose important protections when terminated. In this Article, we propose that employers and employees should be given greater flexibility with a move from mandates to governance. Many of the employment protections required from employers stem from employees’ lack of organizational power. The imbalance is best addressed by providing workers with …

The Law Of Employee Data: Privacy, Property, Governance, Matthew T. Bodie

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The availability of data related to the employment relationship has ballooned into an unruly mass of personal characteristics, performance metrics, biometric recordings, and creative output. The law governing this collection of information has been awkwardly split between privacy regulations and intellectual property rights, with employees generally losing on both ends. This Article rejects a binary approach that either carves out private spaces ineffectually or renders data into isolated pieces of ownership. Instead, the law should implement a hybrid system that provides workers with continuing input and control without blocking efforts at joint production. In addition, employers should have fiduciary responsibilities …

From Mandates To Governance: Restructuring The Employment Relationship, Brett H. Mcdonnell, Matthew T. Bodie

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Employers are saddled with a dizzying array of responsibilities to their employees. Meant to advance a wide array of workplace policies, these demands have saddled employment with the burden of numerous social ends. However, that system has increasingly come under strain, as companies seek to shed employment relationships and workers lose important protections when terminated. In this Article, we propose that employers and employees should be given greater flexibility with a move from mandates to governance. Many of the employment protections required from employers stem from employees’ lack of organizational power. The imbalance is best addressed by providing workers with …

Gaps In Worker Protections That Increase Essential Workers’ Exposure To Covid-19, Ruqaiijah Yearby

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States and localities designated more than 55 million Americans as essential workers. Essential workers not only comprise those employed by the health care and food and agriculture industry, but also include teachers, grocery store workers, transit and airline workers, mail and delivery workers, energy sector and utility workers, and domestic workers (Petition for Emergency, 2020). Racial and ethnic minorities are disproportionately employed as essential workers, with Black Americans the most likely to be essential workers (Petition for Emergency, 2020). Essential workers have been left vulnerable to workplace COVID-19 infections and deaths in large part due to the federal and state …

Caremark And Esg, Perfect Together: A Practical Approach To Implementing An Integrated, Efficient, And Effective Caremark And Eesg Strategy, Leo E. Strine Jr., Kirby M. Smith, Reilly S. Steel

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With increased calls from investors, legislators, and academics for corporations to consider employee, environmental, social, and governance factors (“EESG”) when making decisions, boards and managers are struggling to situate EESG within their existing reporting and organizational structures. Building on an emerging literature connecting EESG with corporate compliance, this Essay argues that EESG is best understood as an extension of the board’s duty to implement and monitor a compliance program under Caremark. If a company decides to do more than the legal minimum, it will simultaneously satisfy legitimate demands for strong EESG programs and promote compliance with the law. Building …

Pursuing Diversity: From Education To Employment, Amy L. Wax

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A central pillar of the Supreme Court’s educational affirmative-action jurisprudence is that the pedagogical benefits of being educated with students from diverse backgrounds are sufficiently “compelling” to justify some degree of race-conscious selection in university admissions.

This essay argues that the blanket permission to advance educational diversity, defensible or not, should not be extended to employment. The purpose of the workplace is not pedagogical. Rather, employees are hired and paid to do a job, deliver a service, produce a product, and complete specified tasks efficiently and effectively. Whether race-conscious practices for the purpose of creating a more diverse workforce will …

Alt Labor? Why We Still Need Traditional Labor, Martin Malin

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With union density falling to alarmingly low levels and dropping, many have largely written off traditional business unionism and have turned to so-called alt-labor forms of worker empowerment, particularly worker centers. But traditional unions continue to provide valuable service to the workers they represent and to society as a whole. The union wage premium may not be as strong as it once was but it still remains and workers represented by unions are far more likely to have health and retirement benefits than their unrepresented counterparts. Moreover, it is through traditional transactional business unionism, that workers find protection from disagreeable …

Development On A Cracked Foundation: How The Incomplete Nature Of New Deal Labor Reform Presaged Its Ultimate Decline, Leo E. Strine Jr.

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Mariano-Florentino Cuéllar, Margaret Levi, and Barry R. Weingast’s excellent essay, Twentieth Century America as a Developing Country, Conflict, Institutional Change and the Evolution of Public Law, celebrates the period during which the National Labor Relations Act facilitated the peaceful resolution of labor disputes and improved the working conditions of American workers. These distinguished authors make a strong case for the essentiality of law in regulating labor relations and the importance of national culture in providing a solid context for the emergence of legal regimes facilitating economic growth and equality. This reply to their essay explores how the New Deal’s failure …

Taking Employment Contracts Seriously, Matthew T. Bodie

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The essay, written for the Symposium in Honor of the Work of Charles A. Sullivan, examines the honoree's work on the employment contract. Rather than quickly moving past the common law of contract onto the many statutory regimes governing the workplace, Sullivan has repeatedly explored the nature of the employment agreement and the role of common-law doctrines in regulating this relationship. The essay explores Sullivan's expeditions into the common law and compares his work with those scholars working in the private law and New Private Law traditions. In addition, I argue that the contractual approach has failed to appreciate the …

Exploring The Impact Of Taxation On Immigration, Henry Ordower

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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 …

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

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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 …

Post-Traumatic Stress Disorder (Ptsd) Coverage And Other Expanding Benefit Changes In The Workers’ Compensation Insurance Marketplace: Academic Legal Perspective, Michael C. Duff

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This paper discusses the increased use of causation presumptions in workers' compensation cases involving firefighters and other first responders. It also considers increasing workers' compensation coverage of post traumatic stress disorder with respect to those same categories of workers. The paper discusses how workers' compensation coverage of certain conditions tends to parallel the growth of potential tort liability, observes that disease presumptions were a feature of early 20th century workers' compensation statutes (and so are not new), and argues that recognition of workers' compensation "mental-mental" claims has been consistent with "zone of danger" expansion of the negligent infliction of emotional …

Structural Discrimination In Covid-19 Workplace Protections, Ruqaiijah Yearby, Seema Mohapatra

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Workers, who are being asked to risk their health by working outside their homes during the COVID-19 pandemic, need adequate hazard compensation, safe workplace conditions, and personal protective equipment (PPE). Sadly, this is not happening for many essential workers, such as those working in home health care and in the meat processing industry. These workers are not only being unnecessarily exposed to the virus, but they are also not receiving paid sick leave, unemployment benefits, and affordable health care and childcare. The lack of these protections is due to structural discrimination and has disproportionately disadvantaged women of color and low-wage …

Employee Testing, Tracing, And Disclosure As A Response To The Coronavirus Pandemic, Matthew T. Bodie, Michael Mcmahon

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As the COVID-19 pandemic continues to devastate the United States, the federal government has largely failed to implement a national program to prevent and contain the virus. As a result, many employers have undertaken their own workplace coronavirus mitigation efforts. This essay examines, in three parts, the legal framework surrounding employer systems of workplace testing, tracing, and disclosure. It first examines the legal issues surrounding employer-mandated COVID-19 testing and temperature checks, especially issues arising under the Americans with Disabilities Act (ADA) and Health Information Portability and Accountability Act (HIPAA). Regarding employer contact tracing efforts, the essay next reviews the multitude …

'Sex' And Religion After Bostock, Sachin S. Pandya, Marcia L. Mccormick

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This paper reviews the U.S. Supreme Court’s opinion in Bostock v. Clayton County. There, the Court held that by barring employer discrimination against any individual “because of such individual’s . . . sex,” Title VII of the Civil Rights Act of 1964 also bars employment discrimination because an individual is gay or transgender. The paper then speculates about how much Bostock will affect how likely lower court judges will read other “sex” discrimination prohibitions in the U.S. Code in the same way, in part based on a canvass of the text of about 150 of those prohibitions. The paper also …