Law Commons^™

The Future Of Intersectionality In Employment Law, Suzette Malveaux

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No abstract provided.

Racism Pays: How Racial Exploitation Gets Innovation Off The Ground, Daria Roithmayr

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Recent work on the history of capitalism documents the key role that racial exploitation played in the launch of the global cotton economy and the construction of the transcontinental railroad. But racial exploitation is not a thing of the past. Drawing on three case studies, this Paper argues that some of our most celebrated innovations in the digital economy have gotten off the ground by racially exploiting workers of color, paying them less than the marginal revenue product of their labor for their essential contributions. Innovators like Apple and Uber have been able to racially exploit workers of color because …

Researching Colorado Employment Law, Jill Sturgeon

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No abstract provided.

Law, Labor, And The Hard Edge Of Progressivism: The Legal Repression Of Radical Unionism And The American Labor Movement's Long Decline, Ahmed White

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No abstract provided.

Wage Theft Criminalization, Benjamin Levin

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Over the past decade, workers’ rights activists and legal scholars have embraced the language of “wage theft” in describing the abuses of the contemporary workplace. The phrase invokes a certain moral clarity: theft is wrong. The phrase is not merely a rhetorical flourish. Increasingly, it has a specific content for activists, politicians, advocates, and academics: wage theft speaks the language of criminal law, and wage theft is a crime that should be punished. Harshly. Self-proclaimed “progressive prosecutors” have made wage theft cases a priority, and left-leaning politicians in the United States and abroad have begun to propose more criminal statutes …

What's Wrong With Police Unions?, Benjamin Levin

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In an era of declining labor power, police unions stand as a rare success story for worker organizing—they exert political clout and negotiate favorable terms for their members. Yet, despite broad support for unionization on the political left, police unions have become public enemy number one for academics and activists concerned about race and police violence. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the communities they police. These critiques are compelling—police unions shield officers and block oversight. But, taken seriously, they often sound like …

Narrowly Tailoring The Covid-19 Response, Craig Konnoth

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No abstract provided.

Discrimination, The Speech That Enables It, And The First Amendment, Helen Norton

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Imagine that you’re interviewing for your dream job, only to be asked by the hiring committee whether you’re pregnant. Or HIV positive. Or Muslim. Does the First Amendment protect your interviewers’ inquiries from government regulation? This Article explores that question.

Antidiscrimination laws forbid employers, housing providers, insurers, lenders, and other gatekeepers from relying on certain characteristics in their decision-making. Many of these laws also regulate those actors’ speech by prohibiting them from inquiring about applicants’ protected class characteristics; these provisions seek to stop illegal discrimination before it occurs by preventing gatekeepers from eliciting information that would enable them to discriminate. …

Powerful Speakers And Their Listeners, Helen Norton

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In certain settings, law sometimes puts listeners first when their First Amendment interests collide with speakers’. And collide they often do. Sometimes speakers prefer to tell lies when their listeners thirst for the truth. Sometimes listeners hope that speakers will reveal their secrets, while those speakers resist disclosure. And at still other times, speakers seek to address certain listeners when those listeners long to be left alone. When speakers’ and listeners’ First Amendment interests collide, whose interests should prevail? Law sometimes – but not always – puts listeners’ interests first in settings outside of public discourse where those listeners have …

No Longer A Second-Class Class Action? Finding Common Ground In The Debate Over Wage Collective Actions With Best Practices For Litigation And Adjudication, Scott A. Moss, Nantiya Ruan

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Rule 23 class actions include all potential members, if granted certification. For wage claims, 29 U.S.C. § 216(b) allows not class but collective actions covering only those opting in. Courts have practiced Rule 23-style gatekeeping in collective actions – requiring certification motions, which they deny if members lack enough commonality. Our 2012 article argued against this practice. No statute or rule grants judges the § 216(b) gatekeeping power early cases assumed, and with good reason: opt-in reduces the agency problems justifying Rule 23 gatekeeping; and Congress passed § 216(b) as not a stricter, opt-in form of class action, but liberalized …

Criminal Employment Law, Benjamin Levin

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This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law. This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with …

Its Own Dubious Battle: The Impossible Defense Of An Effective Right To Strike, Ahmed White

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One of the most important statutes ever enacted, the National Labor Relations Act envisaged the right to strike as the centerpiece of a system of labor law whose central aims included dramatically diminishing the pervasive exploitation and steep inequality that are endemic to modern capitalism. These goals have never been more relevant. But they have proved difficult to realize via the labor law, in large part because an effective right to strike has long been elusive, undermined by courts, Congress, the NLRB, and powerful elements of the business community. Recognizing this, labor scholars have made the restoration of the right …

Checking The Government’S Deception Through Public Employee Speech, Helen Norton

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No abstract provided.

The Impact Of Wal-Mart V. Dukes On Employment Discrimination Class Actions Five Years Out: A Forecast That Suggests More Of A Wave Than A Tsunami, Suzette M. Malveaux

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No abstract provided.

The Value Of The Restatement Of Employment Law, Based On 50-State Empirical Analyses And The Importance Of Clarifying Disputed Issues – But With Caveats About The Restatement’S Imperfect Work Product, Scott A. Moss

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No abstract provided.

Book Review, Ahmed White

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No abstract provided.

Agency Law And The New Economy, Mark J. Loewenstein

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This article considers the status of workers in the "new economy," defined as the sharing economy (e.g., Uber, Lyft) and the on-demand economy. The latter refers to the extensive and growing use of staffing companies by established businesses in many different industries to provide all or a portion of their workforce. Workers in both the sharing economy and the on-demand economy are, generally speaking, at a disadvantage in comparison to traditional employees. Uber drivers, for example, are typically considered independent contractors, not employees, and therefore are not covered under federal and state laws that protect or provide benefits to employees. …

Employers' Duties Of Honesty And Accuracy, Helen Norton

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This short essay is a contribution to the Labor Law Group's chapter-by-chapter critique and analysis of the American Law Institute's effort to restate the common law of employment through its 2015 Restatement of Employment Law. This essay focuses specifically on sections 6.05 and 6.06 of the Restatement, which address employers’ duties of honesty and accuracy in their communications to workers themselves as articulated by the torts of fraudulent and negligent misrepresentation.

Employers speak to workers about a wide range of job-related topics that include the terms and conditions of employment, business projections, and applicable workplace legal protections. Employers’ …

Truth And Lies In The Workplace: Employer Speech And The First Amendment, Helen Norton

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Employers' lies, misrepresentations, and nondisclosures about workers' legal rights and other working conditions can skew and sometimes even coerce workers' important life decisions as well as frustrate key workplace protections. Federal, state, and local governments have long sought to address these substantial harms by prohibiting employers from misrepresenting workers' rights or other working conditions as well as by requiring employers to disclose truthful information about these matters.

These governmental efforts, however, are now increasingly vulnerable to constitutional attack in light of the recent antiregulatory turn in First Amendment law, in which corporate and other commercial entities seek -- with growing …

Criminal Labor Law, Benjamin Levin

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This Article examines a recent rise in civil suits brought against unions under criminal statutes. By looking at the long history of criminal regulation of labor, the Article argues that these suits represent an attack on the theoretical underpinnings of post-New Deal U.S. labor law and an attempt to revive a nineteenth century conception of unions as extortionate criminal conspiracies. The Article further argues that this criminal turn is reflective of a broader contemporary preference for finding criminal solutions to social and economic problems. In a moment of political gridlock, parties seeking regulation increasingly do so via criminal statute. In …

Labor And Employment Law At The 2014-2015 Supreme Court: The Court Devotes Ten Percent Of Its Docket To Statutory Interpretation In Employment Cases, But Rejects The Argument That What Employment Law Really Needs Is More Administrative Law, Scott A. Moss

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No abstract provided.

Cyberharassment And Workplace Law, Helen Norton

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No abstract provided.

My Coworker, My Enemy: Solidarity, Workplace Control, And The Class Politics Of Title Vii, Ahmed A. White

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No abstract provided.

Slides: “Human Sustainability” In Natural Resources Industries: The New Frontier In Compliance, Social Responsibility, Disclosure, And Transparency, T. Markus Funk

Natural Resource Industries and the Sustainability Challenge (Martz Winter Symposium, February 27-28)

Presenter: T. Markus Funk, Partner, Perkins Coie

21 slides

Inmates For Rent, Sovereignty For Sale: The Global Prison Market, Benjamin Levin

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In 2009, Belgium and the Netherlands announced a deal to send approximately 500 Belgian inmates to Dutch prisons, in exchange for an annual payment of £26 million. The arrangement was unprecedented, but justified as beneficial to both nations: Belgium had too many prisoners and not enough prisons, whereas the Netherlands had too many prisons and not enough prisoners. The deal has yet to be replicated, nor has it triggered sustained criticism or received significant scholarly treatment. This Article aims to fill this void by examining the exchange and its possible implications for a global market in prisoners and prison space. …

Internships As Invisible Labor, Melissa Hart

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No abstract provided.

A Diamond In The Rough: Trans-Substantivity Of The Federal Rules Of Civil Procedure And Its Detrimental Impact On Civil Rights, Suzette Malveaux

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No abstract provided.

Missing The Forest For The Trees: Gender Pay Discrimination In Academia, Melissa Hart

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Women in virtually every job category still make less than men. Academia is no exception. This Article will explore some of the structural explanations for this continued disparity and the continued resistance to seriously confronting those structural barriers to equality. Using the still-unfolding story of a charge of discrimination filed against a university, this Article examines the script that has become all-too-familiar in discussions about the gender pay gap, whether in academia or elsewhere. The basic storyline in pay discrimination litigation is this: Evidence is presented about the existence of a gap between men's earnings and women's earnings. The response …

Workers Disarmed: The Campaign Against Mass Picketing And The Dilemma Of Liberal Labor Rights, Ahmed A. White

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In the late 1930s and early 1940s, mass picketing, characterized by large numbers of workers congregating in common protest at or near their employers' establishments, emerged as a crucial weapon in a historic campaign by American workers to realize basic labor rights and build an enduring labor movement in the face of strident resistance from a powerful business community. So potent a weapon did mass picketing prove that these business interests, aided by allies at all levels of government, moved quickly to ban the tactic. From the real-world complexities of labor conflict, this coalition forged a simplistic, analytically dubious, but …

Title Ix’S Protections For Transgender Student Athletes, Scott Skinner-Thompson, Ilona M. Turner

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This article examines legal authority and policy to determine whether transgender students in K-12 schools must be permitted to participate in athletics according to their gender identity, and without any requirement for medical intervention. The articles concludes that such a policy is consistent with legal authority under Title IX and Title VII and, more importantly, best advances the well-being of already vulnerable transgender youth by helping to incorporate and include such students in activities that are critical to physical, social, mental, emotional development, and health.

Part II of this article briefly details the history of Title IX with respect to …