Law Commons^™

On The Formation Of The American Corporate State: The Fuller Supreme Court, 1888-1910, George Skouras

George Skouras

This paper deals with the formation and legitimation of the American Corporate State by the Fuller Supreme Court. It argues that the Fuller Court was wrong to use the Due Process Clause of the 14th Amendment and natural law to support laissez-faire capitalism and the emergent corporate structure at the expense of labor and labor unions. It also argues that the corporatization of America has created a social and cultural environment that places business as the center of the American universe. This has led to a very asymmetrical relationship between corporations and citizens. It further argues that recent revisionist scholarship …

Judicial Amendments Treating Citizen And Immigrant Workers Equally . . . Badly: Labor Rights Without Effective Remedies, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Occupational Safety And Health Standards As Federal Law: The Hazards Of Haste, Robert D. Moran

William & Mary Law Review

No abstract provided.

Employee "Free" Choice In The Mirror Of Liberty, Fairness And Social Welfare, Harry G. Hutchison

Harry G. Hutchison

The publication of Richard Epstein’s book, THE CASE AGAINST THE EMPLOYEE FREE CHOICE ACT provides an opportunity to reconsider (A) the movement to displace the regime of judge-made law that had previously governed labor relationships, (B) the purpose of the NLRA and (C) the revolutionary implications of the effort to transform the NLRA into a law that places its thumb on the scale in favor of unionization. Describing the central provisions of the Employee Free Choice Act (EFCA), its economic consequences, its constitutional implications, and its connection to the decline of unionism, Epstein offers a balanced portrayal of the EFCA …

First Contract Arbitration: Evidence From British Columbia, Canada Of The Significance Of Mediator's Non-Binding Recommendations, Melanie Vipond

Melanie Vipond

One of the many problems facing the American labor movement is the fact that only one-half of its newly certified bargaining units are ever able to obtain first collective bargaining agreements. The value of third-party assistance in countering this trend has been recognized in the Employee Free Choice Act (“EFCA”), which proposes bringing in mediators and arbitrators to resolve first-contract disputes.

This paper is a study of the unique mediation-focused first-contract model available in British Columbia (B.C.), Canada. The B.C. first contract model has two key goals: (1) to facilitate the achievement of first collective bargaining agreements through voluntarily collective …

Statistical Evidence On The Gender Gap In Law Firm Partner Compensation, Marina Angel, Eun Young Whang, Rajiv Banker, Joseph F. Lopez

Marina Angel

Our study compiled the largest research sample on the gender gap in compensation at the 200 largest law firms by combining two large databases to examine why women partners are compensated less: because they are less productive than men partners or because they are women. The AmLaw 100 and 200 studies include gross revenue, profits, number of equity and non-equity partners, and the total number of lawyers at each firm. The Vault/MCCA Law Firm Diversity Programs study (Vault/MCCA) includes the gender ratios at each AmLaw 200 firm. Our study covers the years 2002 to 2007.

The ratio of women equity …

Lowering The Threshold: Establishing Mental Disability Employment Discrimination Claims After The Ada Amendments Act (Updated 9/22/10), Susan Z. Dunn

Susan Z Dunn

2010 marks the 20th anniversary of the passage of The Americans with Disabilities Act. Created to protect the interests of all disabled, physical and mental, the ADA was the first comprehensive civil rights legislation of its kind. This article will review the ADA’s original employment provisions, focusing on the threshold question of what is a disability. Further, it will discuss the U.S. Supreme Court cases that, in fact, raised the statutory threshold – making it more difficult for a mentally disabled claimant to qualify as “disabled.” Finally, the article will examine the recent changes to the law brought forth by …

Labor Contract Formation, Tenuous Torts, And The Realpolitik Of Justice Sotomayor On The 50th Anniversary Of The Steelworkers Trilogy: Granite Rock V. Teamsters, David L. Gregory

David L. Gregory

No abstract provided.

Translation Services Not Required: The Civil Rights Act Of 1964 Does Not Require Special Accommodations For Limited English Proficiency Individuals, Carrie L. Flores

Carrie L. Flores

Is an employer or health care provider required to provide special accommodations to applicants or patients unable to speak English proficiently? If so, to what extent must they accommodate them? Must they provide free translation services? This scenario sets forth a hotly contested issue: whether Limited English Proficiency (LEP) individuals are entitled to receive special accommodations.

The Civil Rights Act (“CRA”) prohibits discrimination based on national origin. However, the CRA does not clearly answer whether an LEP individual is entitled to receive special accommodations because of his LEP status. Notwithstanding this, President Clinton issued an executive order requiring recipients of …

Trade, Labor And International Governance: An Inquiry Into The Potential Effectiveness Of The New International Labor Law, Kevin Banks

Kevin Banks

Globalization has led states and civil society groups to seek new and more effective governance in international labor law. The United States and Canada have each concluded a path-breaking, controversial and still-evolving series of international trade-related labor agreements with their trading partners. These agreements, and ongoing critiques that continue to influence their development, have been shaped by a particular model of governance. That model seeks, in the interests of effectiveness, a set of sharply defined rules and court-like adjudication processes directly linked to economic sanctions. The potential effectiveness of this governance model has received no systematic evaluation. This article undertakes …

Guest Worker Programs Are No Fix For Our Broken Immigration System: Evidence From The Northern Mariana Islands, Dorothy E. Hill Professor

Dorothy E. Hill Professor

The creation of a large-scale unskilled guest worker program has been a prominent element of comprehensive immigration reform proposals in recent years. This year it was featured as one of the “four pillars” of a reform framework endorsed by the Obama Administration. The principal ills that are cited as justifying immigration reform include the deterioration of border security, the violence associated with human smuggling, and the widespread mistreatment of unauthorized immigrants. Many believe that a large-scale guest worker program will help to resolve these problems by providing a lawful channel to divert the flow of unauthorized workers. This article argues …

Are Arbitrators Above The Law? The "Manifest Disregard Of The Law" Standard, Michael Leroy

Michael H LeRoy

Arbitration is supposed to be final and binding. But federal and state laws, and judicial doctrines, allow courts to vacate arbitrator awards. This study contemplates the role of courts when they review awards that “manifestly disregard the law”— a term that means the arbitrator knew the law but chose to ignore it. Given the norm of arbitral finality, should courts vacate these rulings?

Hall Street Associates v. Mattel, Inc., 552 U.S. 576 (2008), failed to answer this question. The parties asked a court to review their award for errors of law. This standard is not in the Federal Arbitration Act …

Labor Relations And Labor Law In Japan, Manabu Matsunaka

Manabu Matsunaka

This article discusses the relationship between Japanese labor law and employment customs, building on this rationalistic understanding of the Japanese employment customs. Our basic conclusion is as follows. The Japanese employment custom developed naturally through an agreement among the members of Japanese employment society and attained efficient economic performance up till the 1990s. During the time, the Japanese labor law mainly worked toward setting the stage for private bargaining and respected its agreement instead of enforcing the desirable result directly through legal regulations. Through this indirect approach toward labor relations in Japan, at least part of the Japanese labor law …

The Unintended Consequenses Of Low H-1b Visa Caps: Brain Blocking, Brain Diversion, And Racial Discrimination Against Asian Technology Professionals, Jeffrey L. Gower

Jeffrey L Gower

American business interests face increasing difficulties as they attempt to compete against global technology-based industries. As the U.S. educational system produces interests face increasing difficulties as they attempt to compete fewer technology workers, many firms look to foreign countries such as India, China, or other Asian countries that have an abundance of skilled professionals. The U.S. Congress created the H-1B visa program in 1990 for educated skilled foreign workers, and manipulated the yearly cap on several occasions. Limits were as high as 195,000 as recently as 2003, but were reduced to 65,000 by 2009. The result of placing a low …

The Unintended Consequences Of Low H-1b Visa Caps: Brain Blocking, Brain Diversion, And Racial Discrimination Against Asian Technology Professionals, Jeffrey L. Gower

Jeffrey L Gower

American business interests face increasing difficulties as they attempt to compete against global technology-based industries. As the U.S. educational system produces interests face increasing difficulties as they attempt to compete fewer technology workers, many firms look to foreign countries such as India, China, or other Asian countries that have an abundance of skilled professionals. The U.S. Congress created the H-1B visa program in 1990 for educated skilled foreign workers, and manipulated the yearly cap on several occasions. Limits were as high as 195,000 as recently as 2003, but were reduced to 65,000 by 2009. The result of placing a low …

Free Labor Today, James G. Pope

Rutgers Law School (Newark) Faculty Papers

During the first half of the 20th Century, the period when all of the United States’ major workers’ rights statutes were enacted, the American labor movement claimed the rights to organize and strike under the Thirteenth Amendment to the U.S Constitution. Beginning in 1909, it was the official policy of the American Federation of Labor that a worker confronted with an unconstitutional injunction had an “imperative duty” to “refuse obedience and to take whatever consequences may ensue.” At a time when union institutions were as weak as they are today, every attack on workers’ rights was met with an impassioned …

Review Of 'Understanding Labor And Employment Law In China' By Ronald C. Brown, Nicholas C. Howson

Law & Economics Working Papers

Review of Ronald C. Brown's UNDERSTANDING LABOR AND EMPLOYMENT LAW IN CHINA (Cambridge University Press, 2010) which review describes an alternative way of describing and analyzing law and legal institutions in contemporary China generally, and labor law specifically.

The Frontier Of Affirmative Action: Employment Preferences And Diversity In The Private Workplace, Corey A. Ciocchetti, John Holcomb

Corey A Ciocchetti

The Supreme Court has decided only a dozen prominent cases on the topic of affirmative action. The impact of each decision, however, has profoundly shaped public policy and societal expectations. Few topics generate such passion and controversy within academia, business, government, the legal profession and the social sciences – not to mention among the citizenry and the press. The paper demonstrates that the affirmative action of our parents will not be the affirmative action of our children. What is significantly different today is that the justification for preference plans has changed drastically from backward-looking to forward-looking. The Remedial Rationale – …

Gender Budget Analysis In Morocco: Achieving Education Parity For Women And Girls, Christie J. Edwards

Christie J. Edwards Esq.

The Kingdom of Morocco has a long history of stability and democracy in the North African region, in large part due to the government’s commitment to improving the lives and status of women and girls. In the past few years, Morocco has set ambitious goals for increased access for women and girls to education as key strategies for the country’s economic development. However, although the government has committed to these gender-specific policies, implementation of education and literacy programs has been sporadic and inconsistent due to the enormity of the problem of female illiteracy and the complexity of the solutions proposed …

Restoring Unions In America By Reforming Nonemployee Union Representative Access Rights To Employer Property, Jesse Dill

Jesse Dill

Unions have lost the once strong position they held in the American workplace. Academics have long debated how to restore the National Labor Relations Act’s relevance in today’s global marketplace. Congress’s preferred solution seems to be the Employee Free Choice Act, which would reform the unionization voting process, but this proposal does not strike at the heart of the matter. Labor is losing the debate on the benefits of unionization for the average worker because it is operating on an uneven playing field where employers can exert undue influence on employees to prevent them from organizing with no real opportunity …

The Case For Candor - Application Of The Self-Critical Analysis Privilege To Corporate Diversity Documents, Pam Jenoff

Pam Jenoff

The Case For Candor: Application Of The Self-Critical Analysis Privilege To Corporate Diversity Initiatives Pam Jenoff Diversity has become an increasingly important part of American corporate culture in the past several decades, with companies devoting significant resources to the assessment of diversity and the implementation of plans to improve demographics, employee relations and morale. Attempts to undertake these diversity initiatives are greatly limited, however, by concerns over potential legal liability. Counsel, apprehensive that documents and other information regarding diversity issues and corrective measures may subsequently be used as evidence by plaintiffs in discrimination lawsuits, often discourage or veto outright the …

Just Notice: Re-Reforming Employment At Will, Rachel S. Arnow-Richman

Rachel S. Arnow-Richman

This Article proposes a fundamental shift in the movement to reform employment termination law. For forty years, there has been a near consensus among employee advocates and worklaw scholars that the current doctrine of employment at will should be abandoned in favor of a rule requiring just cause for termination. This Article contends that such calls are misguided, not (as defenders of the current regime have argued) because a just cause rule grants workers too much protection vis-à-vis management, but because it grants them too little. A just cause rule provides only a weak cause of action to a narrow …

Multiemployer Bargaining And Monopoly: Labor-Management Collusion And A Partial Solution, Anthony B. Sanders

Anthony B Sanders

Multiemployer collective bargaining relationships between unions and employer associations easily devolve into legalized cartels. Once unions establish themselves as the bargaining representative for employers’ employees, the employers have much to gain from banding together as an association, raising their prices and eliminating non-union competition, with unions happily serving as enforcement agents in the scheme. In return, unions receive a share of the increased oligopolistic profits in the form of higher wages and benefits. A threat to such a cartel is an employer who wants to bargain with the union but does not want to accept the terms the association has …

Senate Gridlock Cripples Nlrb, Michael Goldberg

Michael J Goldberg

No abstract provided.

Employment At-Will: Sacred Writ Or Big Lie?, John Judge

John Judge

Texas was the fourth state to adopt the at-will rule of employment termination, an inferential rebuttal defense to an employee’s action for breach of a contract of employment of indefinite duration. The 1888 decision in East Line & R. R. R. Co. v. Scott, 10 S.W. 99 (Tex., 1888), looks to Horace Woods’ 1877 treatise MASTER & SERVANT, and has been slavishly followed in Texas despite dubious intellectual provenance and a complete lack of relevance to actual reality in the contemporary employment market.

Cultural Cognition At Work, Paul Secunda

Paul M. Secunda

Cultural cognition theory provides an anthropological and psychological-based theory about how values actually influence judicial decisionmaking. It suggests that values act as a subconscious influence on cognition rather than as a self-conscious motive of decision-making.

Applying these insights to two controversial United States Supreme Court labor and employment decisions, this Article contends that judges in many instances are not fighting over ideology, but rather over legally-consequential facts. This type of disagreement is particularly prevalent in labor and employment law cases where the factual issues that divide judges involve significant uncertainty and turn on inconclusive evidence.

This distinction between ideology and …

Ricci’S “Color-Blind” Standard In A Race Conscious Society: A Case Of Unintended Consequences?, Michael J. Zimmer

Michael J Zimmer

Ricci’s Color-Blind Standard in a Race Conscious Society: A Case of Unintended Consequences? By Michael J. Zimmer Abstract In Ricci v. DeStefano, the Supreme Court, in an opinion by Justice Kennedy, ruled that, as a matter of law, the City of New Haven had committed intentional disparate treatment discrimination that violated Title VII by deciding not to use the results of a test given to promote firefighters to openings as lieutenants and captains. The attempt of the City to defend its decision by claiming it was because using the test scores would result in an adverse impact on minority group …

In Defence Of Transnational Domestic Labor Regulation, David J. Doorey

David J. Doorey

“Transnational domestic labor regulation” (TDLR) is unilateral regulation introduced by a national government that is designed to influence labor practices in foreign jurisdictions. Many governments already use a variety of measures to try and influence foreign labor practices. TDLR has the potential to empower foreign workers and influence the balance of power in foreign industrial relations system in ways that might lead to improvements in labor conditions over time. Particularly interesting is the potential for TDLR to harness or steer the many private sources of labor practice governance already active in shaping labor conditions within global supply chains. However, whether …

Sex Is Not Enough: How Schroer Teaches Us That Transgender Employees Need Explicit Protection From Discrimination, Heron Greenesmith

Heron Greenesmith

In Schroer v. Billington, Judge Robertson of the DC District Court held that transgender employees are protected from discrimination by Title VII's prohibition on discrimination "because of . . . sex." While the decision was a ground breaking one, this article argues that it is not enough to truly protect transgender employees from discrimination. The article advocates that to provide true protection, Congress should pass the Employment Non-Discrimination Act, which provides explicit protection for employees on the basis of sexual orientation and gender identity

Fumbling Away The Season: Will The Expiration Of The Nfl – Nflpa Cba Result In The Loss Of The 2011 Season And Beyond?, Jeffrey Frank Levine

Jeffrey Frank Levine

This article examines the current negotiations between the NFL and the NFLPA. The article scrutinizes the bargaining history of the parties at great length and discusses the legal/factual issues as well as the arguments vital to this relationship.

After providing the appropriate history and law governing this issue, the authors choose sides and put forth the likely arguments that the labor and management may make during the bargaining process.

The article closes by predicting whether the upcoming case of Am. Needle v. Nat’l Football League will impact the CBA negotiations and whether there will be a lockout.