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Articles 1 - 10 of 10
Full-Text Articles in Labor and Employment Law
Hushing Contracts, David A. Hoffman, Erik Lampmann
Hushing Contracts, David A. Hoffman, Erik Lampmann
All Faculty Scholarship
The last few years have brought a renewed appreciation of the costs of nondisclosure agreements that suppress information about sexual wrongdoing. Recently passed bills in a number of states, including New York and California, has attempted to deal with such hush contracts. But such legislation is often incomplete, and many courts and commentators continue to ask if victims of harassment can sign enforceable settlements that conceal serious, potentially metastasizing, social harms. In this Article, we argue that employing the public policy doctrine, courts ought to generally refuse to enforce hush agreements, especially those created by organizations. We restate public policy …
Larry From The Left: An Appreciation, Matthew T. Bodie, Grant M. Hayden
Larry From The Left: An Appreciation, Matthew T. Bodie, Grant M. Hayden
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This essay approaches the scholarship of the late Professor Larry Ribstein from a progressive vantage point. It argues that Ribstein's revolutionary work upended the "nexus of contracts" theory in corporate law and provided a potential alternative to the regulatory state for those who believe in worker empowerment and anti-cronyism. Progressive corporate law scholars should look to Ribstein's scholarship not as a hurdle to overcome, but as a resource to be tapped for insights about constructing a more egalitarian and dynamic economy.
The Inalienable Right Of Publicity, Jennifer E. Rothman
The Inalienable Right Of Publicity, Jennifer E. Rothman
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This article challenges the conventional wisdom that the right of publicity is universally and uncontroversially alienable. Courts and scholars have routinely described the right as a freely transferable property right, akin to patents or copyrights. Despite such broad claims of unfettered alienability, courts have limited the transferability of publicity rights in a variety of instances. No one has developed a robust account of why such limits should exist or what their contours should be. This article remedies this omission and concludes that the right of publicity must have significantly limited alienability to protect the rights of individuals to control the …
Parallel Contract, Aditi Bagchi
Parallel Contract, Aditi Bagchi
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This Article describes a new model of contract. In parallel contract, one party enters into a series of contracts with many similarly situated individuals on background terms that are presumptively identical. Parallel contracts depart from the classical model of contract in two fundamental ways. First, obligations are not robustly dyadic in that they are neither tailored to the two parties to a given agreement nor understood by those parties by way of communications with each other. Second, obligations are not fixed at a discrete moment of contract. Parallel contracts should be interpreted differently than agreements more consistent with the classic …
Managing Moral Risk: The Case Of Contract, Aditi Bagchi
Managing Moral Risk: The Case Of Contract, Aditi Bagchi
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The concept of moral luck describes how the moral character of our actions seems to depend on factors outside our control. Implications of moral luck have been extensively explored in criminal law and tort law, but there is no literature on moral luck in contract law. I show that contract is an especially illuminating domain for the study of moral luck because it highlights that moral luck is not just a dark cloud over morality and the law to bemoan or ignore. We anticipate moral luck, i.e., we manage our moral risk, when we take into account the possibility that …
The Myth Of Equality In The Employment Relation, Aditi Bagchi
The Myth Of Equality In The Employment Relation, Aditi Bagchi
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Although it is widely understood that employers and employees are not equally situated, we fail adequately to account for this inequality in the law governing their relationship. We can best understand this inequality in terms of status, which encompasses one’s level of income, leisure and discretion. For a variety of misguided reasons, contract law has been historically highly resistant to the introduction of status-based principles. Courts have preferred to characterize the unfavorable circumstances that many employees face as the product of unequal bargaining power. But bargaining power disparity does not capture the moral problem raised by inequality in the employment …
Separating Contract And Promise, Aditi Bagchi
Separating Contract And Promise, Aditi Bagchi
All Faculty Scholarship
Contract has been conceptualized as a species of promise. Treating contractual promise as a kind of promise highlights certain important aspects of contracting, but it also obscures essential differences between legally binding and everyday, or what I will call “private,” promises. The moral character of a private promise depends on the fact that it is not only freely made but also freely kept. Most contractual promises are not intended to have and (by definition) do not have this voluntary character. A promisor essentially opts out of the private practice of promising when she assigns to a third party the authority …
Arbitration, Consent And Contractual Theory: The Implications Of Eeoc V.Waffle House, Jaime L. Dodge, Elizabeth Pollman
Arbitration, Consent And Contractual Theory: The Implications Of Eeoc V.Waffle House, Jaime L. Dodge, Elizabeth Pollman
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Consent has long been the foundation of arbitration, giving the process legitimacy and informing decisions about its nature and structure. The Supreme Court has consistently required consent as a precondition for compelling arbitration. However, it remains unclear what actions constitute consent. In First Options v. Kaplan,1 the Supreme Court held that courts should apply state contract law to determine whether an arbitral clause exists, but “added an important qualification” that “[c]ourts should not assume that the parties have agreed to arbitrate unless there is clear and unmistakable evidence that they did so.”2 In the wake of First Options, the courts …
The Enforceability Of Norms And The Employment Relationship, Edward B. Rock, Michael L. Wachter
The Enforceability Of Norms And The Employment Relationship, Edward B. Rock, Michael L. Wachter
All Faculty Scholarship
No abstract provided.
University Faculty Members' Right To Dissent: Toward A Unified Theory Of Contractual And Constitutional Protection, (With R. Ladenson), Martin H. Malin
University Faculty Members' Right To Dissent: Toward A Unified Theory Of Contractual And Constitutional Protection, (With R. Ladenson), Martin H. Malin
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No abstract provided.