Law Commons^™

“Statistical Dueling” With Unconventional Weapons: What Courts Should Know About Experts In Employment Discrimination Class Actions, William T. Bielby, Pamela Coukos

ExpressO

When statistical evidence is offered in a litigation context, the result can be bad law and bad statistics. In recent high profile, high-stakes employment discrimination class actions against large multinationals like UPS, Wal-Mart, and Marriott, plaintiffs have claimed that decentralized and highly discretionary management practices result in systematic gender or racial disparities in pay and promotion. At class certification, plaintiffs have relied in part on statistical analyses of the company’s workforce showing companywide inequality. Defendants have responded with statistical presentations of their own, which frequently demonstrate widely varying outcomes for members of protected groups in different geographic areas of the …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Whistleblower Protections Under The Sarbanes-Oxley Act: A Primer And A Critique, Valerie J. Watnick

ExpressO

In the wake of scandals involving Enron Corporation, Arthur Andersen and other corporations, Congress enacted the landmark Sarbanes-Oxley Act of 2002, the Corporate and Criminal Fraud Accountability Act of 2002 (hereinafter the “Act” or “Sarbanes-Oxley”).This article critically examines the whistleblower protections afforded employees under Sarbanes-Oxley. Part I of the article considers the statutory language, the legislative history, and the regulations pursuant to the Act. Part II of the article examines recent decisions by the U.S. Department of Labor in Sarbanes-Oxley whistleblower cases (cases under the Act are initially adjudicated by the Department of Labor) and the overall framework for implementation …

Corporations And Social Costs: The Wal-Mart Case Study, Benedict Sheehy

ExpressO

This article examines the role of the corporate vehicle in the creation of social costs. The article identifies some of the political commitments and philosophies behind the differing notions of corporations. Social costs are those activities which result from business activity and cause uncompensated harm to society. The founding contribution to the law and economics discussion by Ronald Coase is given a thorough treatment. The paper next, turns to the dominant explanation of corporate structure, namely the law and economics model developed expounded by Easterbrook and Fischel. It then applies the theoretical discussion in a case study of the world’s …

Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice

ExpressO

Garcetti v. Ceballos was intended to clear up an area of First Amendment law so murky that it was the source not only of circuit splits but also of intra-circuit splits—panels from within the same circuit had arrived at opposite results in nearly identical cases. As it turned out, the Supreme Court itself was as splintered as the circuits. Of all the previously argued cases that remained undecided during the Court’s transition involving Justice O’Connor’s retirement and Justice Alito’s confirmation, Garcetti was the only one for which the Court ordered a second argument. This suggested to some that without a …

Bizarro Statutory Stare Decisis, Jamie D. Prenkert

ExpressO

In Smith v. City of Jackson, the Supreme Court applied to the Age Discrimination in Employment Act one of its decisions interpreting Title VII of the 1964 Civil Rights Act, which Congress had overridden with the Civil Rights Act of 1991. It treated Wards Cove Packing Co. v. Atonio, dealing with disparate impact theory and burdens of proof, as a binding interpretation of the ADEA, despite that Congress expressed disapproval of Wards Cove. The Court relied on two interpretive approaches to arrive at this result: the presumption that identical language in the ADEA and Title VII should be interpreted consistently …

Volunteer Discrimination, Angela Onwuachi-Willig

ExpressO

This Essay analyzes a debate regarding the potential racial motivations behind the new National Basketball Association (NBA) Dress Code. Specifically, this Essay examines whether the defense of the new NBA dress code by some Blacks—as pure business, free from racial discrimination—should be viewed as action negating other Blacks’ claims of improper racial motivation behind the policy. I contend that, rather than negating allegations of racism, the reactions of the policy-defending black NBA athletes and leaders only highlight the immense pressures that Blacks have in our society to perform their identity in a way that is racially palatable. In particular, I …

Charter Schools And Collective Bargaining: Compatible Marriage Or Illegitimate Relationship, Martin H. Malin, Charles Taylor Kerchner

ExpressO

The rapid increase in charter schools has been fueled by the view that traditional public schools have failed because of their monopoly on public education. Charter schools, freed from the bureaucratic regulation that dominates traditional public schools, are viewed as agents of change that will shock traditional public schools out of their complacency. Among the features of the failed status quo are teacher tenure, uniform salary grids and strict work rules, matters that teacher unions hold dear. Yet unions have begun organizing teacher in charter schools. This development prompts the question whether unionization and charter schools are compatible.

In contrast …

Governance Of Brazilian Pension Funds, Luciana Pires Dias

ExpressO

This paper analyzes theoretically and empirically the governance of pension funds in Brazil. It first demonstrates that the law allows sponsors (employers) to write contracts (by-laws) governing the relationships between the sponsors, the managers and the participants (employees) of the pension funds. It also explains that, from an agency theory perspective, this legal framework favors non-optimal governance structures, since sponsors do not bear the financial consequences of the contracts they create. As predicted, the empirical evidence reported in this thesis shows that sponsors use this authority to create contracts that minimize monitoring and maximize control over business decisions to the …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Final Offer Arbitration In The New Era Of Major League Baseball, Spencer B. Gordon

ExpressO

This article provides a comprehensive analysis of the economic, athletic, and social impact of final offer salary arbitration in Major League Baseball (“MLB”). The article delves into the motivations, fluctuations, and evolution of the player-owner relationship and free agency. The commentary then focuses on the distinguishing features and intricacies of final offer arbitration. Although salary arbitration in the context of Major League Baseball is a topic oft discussed in the law review setting, the analysis rarely reaches the level exhibited in this article. Moreover, most articles on the subject were written between 1996 and 2000 when the 1994 players’ strike …

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

Paid Family Leave In American Law Schools: Findings And Open Questions, Laura T. Kessler

ExpressO

There exists a substantial literature on the status of women in the legal profession, including studies on women students’ experiences in law schools, gender bias on law school faculties, and family leave policies and practices among legal employers. However, no recent study examines the family leave policies and practices in American law schools. This study seeks to fill that gap. Its findings are threefold. First, almost three quarters of law schools provide wage replacement during a family leave that is more generous than required by federal law. Second, there is a positive relationship between teaching at top-tier and private law …

The Employer Preference For The Subservient Worker And The Making Of The Brown Collar Workplace, Leticia M. Saucedo

ExpressO

The rapidly growing Latino immigrant population raises questions about how the “brown collar” worker is being incorporated into our economy. Newly arrived Latino immigrants, or “brown collar” workers, are increasingly found in segregated workplaces throughout the country. They typically perform the least desirable jobs in the most unstable conditions in our economy. This article explores the creation of these workplaces by focusing first, on the conditions that create brown collar subservience and second, on employer practices that seek workers out for their subservience. Today’s anti-discrimination law does not adequately capture the form of discrimination lurking in the interaction between brown …