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A Philosophical Basis For Judicial Restraint, Michael Evan Gold Jan 2019

A Philosophical Basis For Judicial Restraint, Michael Evan Gold

Articles and Chapters

The purpose of this article is to establish a principled basis for restraint of judicial lawmaking. The principle is that all findings of fact, whether of legislative or adjudicative facts, must be based on evidence in the record of a case. This principle is grounded in moral philosophy. I will begin with a discussion of the relevant aspect of moral philosophy, then state and defend the principle, and finally apply it to a line of cases.


The Fair Labor Standards Act At 80: Everything Old Is New Again, Kati L. Griffith Jan 2019

The Fair Labor Standards Act At 80: Everything Old Is New Again, Kati L. Griffith

Articles and Chapters

On the 80th anniversary of the federal wage and hour statute, the Fair Labor Standards Act of 1938 (FLSA), critics warn that it cannot keep pace with shifting business trends. More and more individuals engage in “contract work,” some of which takes place in the much publicized “gig economy.” These work arrangements raise questions about whether these workers are “employees,” covered by U.S. labor and employment law, or “independent contractors.” Subcontracting arrangements, or what some call domestic outsourcing, are also expanding. Indeed, more and more workers in the U.S. economy engage with multiple businesses, raising questions of which ...


Introduction To A Special Issue On The Impact Of Immigrant Legalization Initiatives: International Perspectives On Immigration And The World Of Work, Maria Lorena Cook, Shannon Gleeson, Kati L. Griffith, Lawrence M. Kahn Aug 2018

Introduction To A Special Issue On The Impact Of Immigrant Legalization Initiatives: International Perspectives On Immigration And The World Of Work, Maria Lorena Cook, Shannon Gleeson, Kati L. Griffith, Lawrence M. Kahn

Articles and Chapters

This article is the third in a series to celebrate the 70th anniversary of the ILR Review. The series features articles that analyze the state of research and future directions for important themes the journal has featured over its many years of publication. In this issue, we also feature a special cluster of articles and book reviews on one of the most critical labor market issues across the globe—the legalization and integration of immigrants into national labor markets.

Despite the urgent need for immigration reform in the United States, there is a paucity of US research that looks at ...


We Can Thank Harvey Weinstein For Doing What Congress And The Supreme Court Failed To Do, David S. Sherwyn, Paul Wagner Apr 2018

We Can Thank Harvey Weinstein For Doing What Congress And The Supreme Court Failed To Do, David S. Sherwyn, Paul Wagner

Articles and Chapters

While the years 2017 and 2018 will be remembered for numerous geo political and social movements, any retrospective of this time will include the issue of sexual harassment and the corresponding “Me Too” movement. In this time, sexual harassment has transformed from a workplace legal concept to an issue that is defining the fabric of the country. While no one could persuasively argue that sexual harassment has not expanded from its legal roots to a movement that transcends the law, the fact is that the concept is rooted and adjudicated in law. Sadly, the commentators and the popular press often ...


Levels Of Abstraction In Legal Thinking, Michael Evan Gold Jan 2018

Levels Of Abstraction In Legal Thinking, Michael Evan Gold

Articles and Chapters

[Excerpt] This article applies the concept of levels of abstraction to legal thinking. Perhaps the most important use of the concept is to constrain judicial lawmaking in a principled way.

Level of abstraction refers to:

  • the numbers of persons and transactions that generate an issue,

  • the numbers of persons and transactions of which a piece of evidence is true,

  • the numbers of persons and transactions to which an argument applies, and

  • the numbers of persons and transactions that are affected by the resolution of an issue.

In general, the more persons and transactions to which an issue and its resolution ...


Resolving Discrimination Complaints In Employment Arbitration: An Analysis Of The Experience In The Securities Industry, J. Ryan Lamare, David B. Lipsky Jan 2018

Resolving Discrimination Complaints In Employment Arbitration: An Analysis Of The Experience In The Securities Industry, J. Ryan Lamare, David B. Lipsky

Articles and Chapters

This article empirically examines whether employment discrimination claims differ from other types of disputes resolved through arbitration. Whether arbitration is appropriate for resolving violations of anti-discrimination statutes at work is a focus of ongoing policy debates. Yet empirical scholarship has rarely considered whether different types of complaints might have distinct characteristics and receive varied outcomes in arbitration. The authors analyze all of the employment arbitration awards for cases filed between 1991 and 2006 in the financial services industry to determine whether differences in the type of allegation affect award outcomes. They also examine the effects of the financial industry’s ...


The Precarity Of Temporality: How Law Inhibits Immigrant Worker Claims, Kati L. Griffith, Shannon Gleeson Oct 2017

The Precarity Of Temporality: How Law Inhibits Immigrant Worker Claims, Kati L. Griffith, Shannon Gleeson

Articles and Chapters

In this article, we propose that temporary immigrant workers in the United States face unique law-induced challenges to claimsmaking when compared to other categories of workers with precarious immigration statuses, such as unauthorized workers and H-2 guest workers. We present a systematic comparison of each group, drawing on a review of the existing literature and a new pilot study, to examine how the challenges facing each set of immigrants overlap in some ways, but are unique in others. We conclude that particular differences in U.S. immigration law categories (unauthorized, H-2 guest workers, and temporary immigrant workers) may shape how ...


Deferring For Justice: How Administrative Agencies Can Solve The Employment Dispute Quagmire By Endorsing An Improved Arbitration System, Zev J. Eigen, David S. Sherwyn Jun 2017

Deferring For Justice: How Administrative Agencies Can Solve The Employment Dispute Quagmire By Endorsing An Improved Arbitration System, Zev J. Eigen, David S. Sherwyn

Articles and Chapters

[Excerpt] When it comes to the issue of pre-dispute mandatory arbitration, the concept of attaining justice for all parties in a vacuum instead of in comparison to the fall back—the litigation and agency adjudication processes. In this Article, we address each of the components of arbitration, but in context to the alternative and thus, conclude that a fixed arbitration system will provide the type of justice unavailable in the current system.


The Power Of A Presumption: California As A Laboratory For Unauthorized Immigrant Workers’ Rights, Kati L. Griffith Feb 2017

The Power Of A Presumption: California As A Laboratory For Unauthorized Immigrant Workers’ Rights, Kati L. Griffith

Articles and Chapters

In recent years, California has served as the primary laboratory for policy experimentation related to unauthorized immigrant workers’ rights. No other state, to date, has advanced comparable policy initiatives that preserve state-provided workers’ rights regardless of immigration status. Through close examination of two open Supremacy Clause questions under California’s Agricultural Labor Relations Act, the article illustrates that states can, as a constitutional matter, and should, as a policy matter, serve as laboratories for unauthorized immigrant worker rights. Exploring the outer boundaries of state action in this area is particularly compelling given the significant labor force participation of unauthorized immigrants ...


Replantar Un Campo: Derecho Internacional Del Trabajo Para El Siglo Xxi, Lance A. Compa Jan 2016

Replantar Un Campo: Derecho Internacional Del Trabajo Para El Siglo Xxi, Lance A. Compa

Articles and Chapters

No abstract provided.


Individual Employment Rights Arbitration In The United States: Actors And Outcomes, Alexander Colvin, Mark D. Gough Oct 2015

Individual Employment Rights Arbitration In The United States: Actors And Outcomes, Alexander Colvin, Mark D. Gough

Articles and Chapters

The authors examine disposition statistics from employment arbitration cases administered over an 11-year period by the American Arbitration Association (AAA) to investigate the process of dispute resolution in this new institution of employment relations. They investigate the predictors of settlement before the arbitration hearing and then estimate models for the likelihood of employee wins and damage amounts for the 2,802 cases that resulted in an award. Their findings show that larger-scale employers who are involved in more arbitration cases tend to have higher win rates and have lower damage awards made against them. This study also provides evidence of ...


Brokered Pathways To Justice And Cracks In The Law: A Closer Look At The Claims-Making Experiences Of Low-Wage Workers, Shannon Gleeson Jan 2015

Brokered Pathways To Justice And Cracks In The Law: A Closer Look At The Claims-Making Experiences Of Low-Wage Workers, Shannon Gleeson

Articles and Chapters

This article examines the factors that shape low-wage workers’ decision to mobilize their legal rights following a workplace violation. I discuss the diverse mechanisms of employer retaliation, including the role of employer sanctions, the role of community social networks, and the myriad challenges that claimants face in navigating the labor standards enforcement bureaucracy. I demonstrate how, although unauthorized status is formally not a barrier for accessing many key benefits in California, the structural position of unauthorized workers place them at a particular disadvantage, significantly so for subcontracted and seasonal workers. These data are based on a of survey of 453 ...


A New Approach To Migrant Labor Rights Enforcement: The Crisis Of Undocumented Worker Abuse And Mexican Consular Advocacy In The United States, Xóchitl Bada, Shannon Gleeson Jan 2015

A New Approach To Migrant Labor Rights Enforcement: The Crisis Of Undocumented Worker Abuse And Mexican Consular Advocacy In The United States, Xóchitl Bada, Shannon Gleeson

Articles and Chapters

This paper examines the genesis and evolution of consular efforts to enforce the workplace rights of immigrant workers in the United States. We draw on a survey of 52 Mexican consulates in the United States, in-depth interviews with the initial cohort of 15 consular participants in the Semana de Derechos Laborales/Labor Rights Week, and several key informants who helped coordinate these efforts in the community. Our findings confirm a shift from “limited” to “active” engagement over the last decade on the part of the Mexican government (Délano 2011), placing special emphasis on the role played by non-governmental actors in ...


Between Support And Shame: The Impacts Of Workplace Violations For Immigrant Families, Shannon Gleeson Jan 2015

Between Support And Shame: The Impacts Of Workplace Violations For Immigrant Families, Shannon Gleeson

Articles and Chapters

Purpose - This study examines the conditions that lead to workplace violations for low-wage immigrant workers, and how family life shapes their decision to speak up. I also highlight how both employer abuse and the claims making process can impact individuals and their families.

Methodology/approach - This research adopts a mixed-method approach that includes a survey of 453 low-wage workers seeking pro bono legal assistance and 115 follow-up interviews with claimants. I also conduct a five-year ethnography of both a monthly state workshop provided for injured workers and a pro bono legal aid clinic in a predominantly Latino agricultural community on ...


Brokering Immigrant Worker Rights: An Examination Of Local Immigration Control, Administrative Capacity And Civil Society, Shannon Gleeson Jan 2015

Brokering Immigrant Worker Rights: An Examination Of Local Immigration Control, Administrative Capacity And Civil Society, Shannon Gleeson

Articles and Chapters

We know a great deal about the clash between federal immigration and labour standards enforcement directives, but less regarding how these two processes are functioning at the local level and the role that demographic factors and civil society play. This article examines the impact of a climate of local immigration enforcement on worker legal mobilisation in metropolitan statistical areas (MSAs) in the USA. I focus on national origin discrimination and find that MSAs with a 287(g) agreement within their boundaries have lower claims rates. Conversely, claims rates are higher in MSAs where an Equal Employment Opportunity Commission (EEOC) agency ...


From The Negotiating Arena To Conflict Management, David B. Lipsky, Ronald L. Seeber, Ariel C. Avgar Jan 2015

From The Negotiating Arena To Conflict Management, David B. Lipsky, Ronald L. Seeber, Ariel C. Avgar

Articles and Chapters

Richard Walton and Robert McKersie’s A Behavioral Theory of Labor Negotiations has influenced generations of scholars who have studied conflict resolution and negotiations, as well as countless negotiation practitioners (Walton and McKersie 1991; for an assessment of Walton and McKersie’s influence on research and practice, see Kochan and Lipsky 2003). In this article, we extend Walton and McKersie’s theory, which focused on the negotiations between unions and employers, to consider its implications for the strategic choices made by organizations as they develop conflict management policies.We begin by discussing Walton and McKersie’s influence on the language ...


Employment Arbitration In The Securities Industry: Lessons From Recent Empirical Research, J. Ryan Lamare Jan 2015

Employment Arbitration In The Securities Industry: Lessons From Recent Empirical Research, J. Ryan Lamare

Articles and Chapters

In this Article, we use evidence gathered from employment arbitration cases arising in the securities industry to address several research questions that emanate from the debate over the arbitration of employment disputes. We empirically answer the following questions: (1) Are critics correct in asserting that employment arbitration favors repeat players? (2) Do employees fare better under voluntary arbitration than they do under mandatory arbitration? (3) Are employees who allege violations of their civil rights, through the filing of discrimination charges, treated differently from those filing other types of claims? (4) Does the gender of the parties involved in the arbitration ...


Narratives Of Deservingness And The Institutional Youth Of Immigrant Workers, Shannon Gleeson Jan 2015

Narratives Of Deservingness And The Institutional Youth Of Immigrant Workers, Shannon Gleeson

Articles and Chapters

This article speaks to the special issue’s goal of disrupting the deserving/undeserving immigrant narrative by critically examining eligibility criteria available under two arenas of relief for undocumented immigrants: 1) the 2012 Deferred Action for Childhood Arrivals (DACA) program, which provides temporary deportation relief and work authorization for young adults who meet an educational requirement and other criteria, and 2) current and proposed pathways to legal status for those unauthorized immigrants who come forward to denounce workplace injustice, among other crimes. For each of these categories of “deserving migrants,” I illuminate the exclusionary nature each of these requirements, which ...


The Future Of Conflict Management Systems, David B. Lipsky Jan 2015

The Future Of Conflict Management Systems, David B. Lipsky

Articles and Chapters

This article acknowledges Chris Merchant’s contribution to the development of the concept of a conflict management system (CMS). It discusses the relationship between a CMS and a closely related concept, an integrated conflict management system (ICMS), which is a more comprehensive or integrated approach to conflict management. The article reports on surveys of Fortune 1000 corporations that show that the implementation of a CMS in these corporations rose from 17 percent in 1997 to about 30 percent in 2011. Chris Merchant expressed optimism about the future of conflict management systems. Although her vision of the future of conflict management ...


It Is Time For Something New: A 21st Century Joint-Employer Doctrine For 21st Century Franchising, Steven A. Carvell, David S. Sherwyn Jan 2015

It Is Time For Something New: A 21st Century Joint-Employer Doctrine For 21st Century Franchising, Steven A. Carvell, David S. Sherwyn

Articles and Chapters

[Excerpt] The joint-employer doctrine is perhaps the hottest issue in labor and employment law for 2015 and the foreseeable future. In the September 2015 Browning-Ferris ("BFI”) decision, the National Labor Relations Board (the "NLRB" or the "Board"), the administrative agency that enforces the National Labor Relations Act (the "NLRA" or the "Act"), issued what is expected to be the first of two decisions, expanding the joint-employer doctrine. In the BFI decision, the so-called putative employer (e.g., the lessor of employees or a franchisor) is now considered the employer of individuals who had in the past been considered employees of ...


The Wagner Model And International Freedom Of Association Standards, Lance A. Compa Jan 2014

The Wagner Model And International Freedom Of Association Standards, Lance A. Compa

Articles and Chapters

[Excerpt] I first met Pierre Verge just before beginning my service with the NAFTA labour commission in 1995. Not long after that, Pierre Verge and my own labour law professor at Yale in 1972, Clyde Summers, jointly wrote a penetrating evaluation of the first years of the NAFTA labour side accord, which still serves as the best single analysis of that seminal but flawed instrument linking labour standards and a trade agreement (Summers, Verge and Medina, 1998; Verge, 1999; Verge, 2002). Since then, my understanding of international labour standards and how they relate to labour law in North America has ...


Navigating Occupational Health Rights: The Function Of Illegality, Language, And Class Inequality In Workers' Compensation, Shannon Gleeson Jan 2014

Navigating Occupational Health Rights: The Function Of Illegality, Language, And Class Inequality In Workers' Compensation, Shannon Gleeson

Articles and Chapters

[Excerpt] In this chapter, I argue that although undocumented status has little formal bearing on the ability of workers like Jose to access key rights such as workers' compensation, illegality shapes every aspect of occupational health and the claims-making experience. I interrogate three key factors of institutional inequality: 1) undocumented workers' position within the labor market; which shapes risk of injury and eligibility for coverage; 2) the ability of undocumented workers to navigate their claims through the workers' compensation bureaucracy; and 3) undocumented workers' disenfranchisement from the welfare state and their limited options following disability.

Within each of these institutional ...


Workers, Families, And Immigration Policies, Shannon Gleeson Jan 2014

Workers, Families, And Immigration Policies, Shannon Gleeson

Articles and Chapters

[Excerpt] Unauthorized immigration to the US has a long and varied history shaped by a number of shifts in immigration policy. Of the global immigrant stock, 10–15 % is estimated to be undocumented (20–30 million; International Organization for Migration 2008). Today, undocumented immigrants comprise roughly 40 % of the immigrant flow to the US. Although immigrants often come to this country as a result of complex factors that were initiated or supported by the US—including free trade agreements and wars that devastated immigrants’ home countries and their national economies—once they become unauthorized, they find themselves in extremely vulnerable ...


Mandatory Arbitration And Inequality Of Justice In Employment, Alexander Colvin Jan 2014

Mandatory Arbitration And Inequality Of Justice In Employment, Alexander Colvin

Articles and Chapters

[Excerpt] In this Paper, I will examine the operation of mandatory arbitration as an employment dispute resolution system to investigate the degree to which it increases or decreases equality of access to justice in employment relations. To address this question, I will use a model of individual employment relations that encompasses four key components.

The first component is the structure of rights held by employees. This includes the substantive employment rights provided by federal or state law. It also includes the institutional structure of procedures for enforcement of these rights, such as the incidence and structure of mandatory arbitration procedures ...


Laborers Or Criminals? The Impact Of Crimmigration On Labor Standards Enforcement, Kati L. Griffith Jan 2014

Laborers Or Criminals? The Impact Of Crimmigration On Labor Standards Enforcement, Kati L. Griffith

Articles and Chapters

[Excerpt] As we examine the criminalization of immigration, commonly referred to as “crimmigration” (Stumpf, 2006), it is essential to consider its impact on other areas of law and policy that involve immigrants but are not traditionally thought of as formal elements of either criminal law or immigration law. Why? As Hortensia’s story illustrates, crimmigration may unexpectedly affect protections and rights that relate to immigrants’ experiences but come from other areas of law and policy. This chapter explores the impact of crimmigration on labor standards enforcement. By labor standards enforcement, the chapter refers mainly to the wage and hour, health ...


When Federal Immigration Exclusion Meets Subfederal Workplace Inclusion: A Forensic Approach To Legislative History, Kati L. Griffith Jan 2014

When Federal Immigration Exclusion Meets Subfederal Workplace Inclusion: A Forensic Approach To Legislative History, Kati L. Griffith

Articles and Chapters

What happens when a person is simultaneously viewed as an unauthorized immigrant without rights according to a federal regime and as an employee with rights according to a subfederal regime? In the wake of widespread and inconsistent adjudication of this issue, this Article sheds new light on this pressing question. To date, pertinent court battles and scholarship have led to a virtual stalemate and often focus exclusively on normative policy arguments. By contrast, this Article employs an empirically-grounded review of fifteen years of legislative history to analyze this paradox. This review illustrates that the denial of workplace protections to unauthorized ...


Justice Or Just Between Us? Empirical Evidence Of The Trade-Off Between Procedural And Interactional Justice In Workplace Dispute Resolution, Zev J. Eigen, Adam Seth Litwin Jan 2014

Justice Or Just Between Us? Empirical Evidence Of The Trade-Off Between Procedural And Interactional Justice In Workplace Dispute Resolution, Zev J. Eigen, Adam Seth Litwin

Articles and Chapters

In this article, the authors examine the relationship between an employer’s implementation of a typical dispute resolution system (DRS) and organizational justice, perceived compliance with the law, and organizational commitment. They draw on unique data from a single, geographically expansive, U.S. firm with more than 100,000 employees in more than 1,000 locations. Holding all time-constant, location-level variables in place, they find that the introduction of a DRS is associated with elevated perceptions of interactional justice but diminished perceptions of procedural justice. They also find no discernible effect on organizational commitment, but a significant boost to perceived ...


Mandatory Employment Arbitration: Dispelling The Myths, David B. Lipsky, J. Ryan Lamare, Michael D. Maffie Jan 2014

Mandatory Employment Arbitration: Dispelling The Myths, David B. Lipsky, J. Ryan Lamare, Michael D. Maffie

Articles and Chapters

[Excerpt] Using mandatory arbitration to resolve employment disputes has been a major source of controversy since the practice emerged about twenty‐five years ago. On one side of the debate have been proponents of the practice, who contend that mandatory pre‐dispute arbitration provides a faster and cheaper means of resolving employment disputes than relying on conventional litigation.


Saturns And Rickshaws Revisited: What Kind Of Employment Arbitration System Has Developed?, Alexander Colvin, Kell Pike Jan 2014

Saturns And Rickshaws Revisited: What Kind Of Employment Arbitration System Has Developed?, Alexander Colvin, Kell Pike

Articles and Chapters

[Excerpt] In this article, we examine a new, more detailed dataset of employment arbitration cases administered by the American Arbitration Association (AAA), which includes information on many important aspects of these cases that are not included in the California Code of Civil Procedure disclosure requirements. With the availability of this new data, we are able to revisit Estreicher's argument and look at the question of whether employment arbitration has become a new Saturn system of justice providing better access to employees and to what degree it is different from the Cadillac-Rickshaw system of justice in employment litigation. We begin ...


Accommodating Employees With And Without Disabilities, Lisa Schur, Lisa Hisae Nishii, Meera Adya, Douglas Kruse, Susanne M. Bruyere Dr., Peter Blanck Jan 2014

Accommodating Employees With And Without Disabilities, Lisa Schur, Lisa Hisae Nishii, Meera Adya, Douglas Kruse, Susanne M. Bruyere Dr., Peter Blanck

Articles and Chapters

Efforts to recruit and retain employees with disabilities are often tempered by employers’ concerns over potential workplace accommodation costs. This study reports on accommodations requested and granted in intensive case studies of eight companies, based on more than 5,000 employee and manager surveys, and interviews and focus groups with 128 managers and employees with disabilities. Two unique contributions are that we analyze accommodations for employees without disabilities as well as for those with disabilities, and compare perspectives on accommodation costs and benefits among employees, their coworkers, and their managers. We find people with disabilities are more likely than those ...