Law Commons^™

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 …

Dismantling “Dilemmas Of Difference” In The Workplace, Rangita De Silva De Alwis, Sarah Heberlig, Lindsay Holcomb

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Over the course of six months, the University of Pennsylvania Carey Law School’s class “Women, Law, and Leadership” interviewed 55 women between the ages of 25 and 85, all leaders in their respective fields. Nearly half of the women interviewed were women of color, and 10 of the women lived and worked in countries other than the U.S., spanning across Europe, Africa, and Southeast Asia. Threading together the common themes touched upon in these conversations, we gleaned a number of novel insights, distinguishing the leadership trajectories pursued by women who have risen to the heights of their professions. Through thousands …

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 …

All The World’S A Platform?: Some Remarks On 'Marketplace Platform' Employment Laws, Michael C. Duff

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This paper addresses the enactment of marketplace platform laws, which have arisen as a remarkable feature of the "gig" economy in recent years. A marketplace platform law decides the question of whether an individual worker is an independent contractor or an employee — an ongoing controversy in all employment law, including workers’ compensation law — by emphasizing factors other than those normally considered in traditional legal analyses. As of this writing, seven states appear to have enacted marketplace platform laws.

In short, marketplace platform laws — developed substantially and lobbied aggressively by the company Handy, Inc. — make it much …

Center For Progressive Reform Report: Protecting Workers In A Pandemic--What The Federal Government Should Be Doing, Thomas Mcgarity, Michael C. Duff, Sidney A. Shapiro

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The "re-opening" of the American economy while the coronavirus that causes COVID-19 is still circulating puts workers at heightened risk of contracting the deadly virus. In some blue-collar industries, the risk is particularly acute because of the inherent nature of the work itself and of the workplaces in which it is conducted. And the risk, for a variety of reasons, falls disproportionately on people of color and low-income workers. With governors stay-at-home orders and other pandemic safety restrictions, Center for Progressive Reform Member Scholars Thomas McGarity, Michael Duff, and Sidney Shapiro examine the federal government's many missed opportunities to stem …

Defined Contribution Plans And The Challenge Of Financial Illiteracy, Jill E. Fisch, Annamaria Lusardi, Andrea Hasler

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Retirement investing in the United States has changed dramatically. The classic defined-benefit (DB) plan has largely been replaced by the defined contribution (DC) plan. With the latter, individual employees’ decisions about how much to save for retirement and how to invest those savings determine the benefits available upon retirement.

We analyze data from the 2015 National Financial Capability Study to show that people whose only exposure to investment decisions is by virtue of their participation in an employer-sponsored 401(k) plan are poorly equipped to make sound investment decisions. Specifically, they suffer from higher levels of financial illiteracy than other investors. …