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Full-Text Articles in Labor and Employment Law

Estimating The Impact Of The Age Of Criminal Majority: Decomposing Multiple Treatments In A Regression Discontinuity Framework, Michael Mueller-Smith, Benjamin David Pyle, Caroline Walker Jul 2023

Estimating The Impact Of The Age Of Criminal Majority: Decomposing Multiple Treatments In A Regression Discontinuity Framework, Michael Mueller-Smith, Benjamin David Pyle, Caroline Walker

Faculty Scholarship

This paper studies the impact of adult prosecution on recidivism and employment trajectories for adolescent, first-time felony defendants. We use extensive linked Criminal Justice Administrative Record System and socio-economic data from Wayne County, Michigan (Detroit). Using the discrete age of majority rule and a regression discontinuity design, we find that adult prosecution reduces future criminal charges over 5 years by 0.48 felony cases (↓ 20%) while also worsening labor market outcomes: 0.76 fewer employers (↓ 19%) and $674 fewer earnings (↓ 21%) per year. We develop a novel econometric framework that combines standard regression discontinuity methods with predictive machine learning …


The Long Shadow Of Inevitable Disclosure, Stacey Dogan, Felicity Slater Apr 2023

The Long Shadow Of Inevitable Disclosure, Stacey Dogan, Felicity Slater

Faculty Scholarship

A growing body of evidence has highlighted the human and economic costs associated with contractual restrictions on employee mobility. News accounts describe abusive use of non-compete clauses to prevent low wage workers from seeking better options. Economists, meanwhile, have demonstrated that innovation and economic dynamism may suffer when employers can easily prevent their employees from changing jobs. While state legislatures have attempted to address these concerns by restricting employers' use of non-compete agreements, the Federal Trade Commission recently announced a plan to prohibit them altogether. As policymakers focus attention on contractual limits on employment mobility, however, a more insidious threat …


Conflict Of Laws? Tensions Between Antitrust And Labor Law, Matthew Dimick Mar 2023

Conflict Of Laws? Tensions Between Antitrust And Labor Law, Matthew Dimick

Journal Articles

Not long ago, economists denied the existence of monopsony in labor markets. Today, scholars are talking about using antitrust law to counter employer wage-setting power. While concerns about inequality, stagnant wages, and excessive firm power are certainly to be welcomed, this sudden about-face in theory, evidence, and policy runs the risk of overlooking some important concerns. The purpose of this Essay is to address these concerns and, more critically, to discuss some tensions between antitrust and labor law, a more traditional method for regulating labor markets. Part I addresses a question raised in the very recent literature, about why antitrust …


Stakeholderism Silo Busting, Aneil Kovvali Jan 2023

Stakeholderism Silo Busting, Aneil Kovvali

Articles by Maurer Faculty

The fields of antitrust, bankruptcy, corporate, and securities law are undergoing tumultuous debates. On one side in each field is the dominant view that each field should focus exclusively on a specific constituency—antitrust on consumers, bankruptcy on creditors, corporate law on shareholders, and securities regulation on financial investors. On the other side is a growing insurgency that seeks to broaden the focus to a larger set of stakeholders, including workers, the environment, and political communities. But these conversations have largely proceeded in parallel, with each debate unfolding within the framework and literature of a single field. Studying these debates together …


On Firms, Sanjukta Paul Aug 2022

On Firms, Sanjukta Paul

Law & Economics Working Papers

This paper is about firms as an instance of economic coordination, and about how we think about them in relation to other forms of coordination as well as in relation to competition and markets. The dominant frame for thinking about firms--which has strongly influenced contemporary competition law as well as serving as a vital adjunct to the fundamental concepts of neoclassical price theory that guide many areas of law and policy--implicitly or explicitly explains and justifies the centralization of both decision-making rights and flows of income from economic activity on productive efficiency grounds. We have very good reasons to doubt …


Subjective Beliefs About Contract Enforceability, Jj Prescott, Evan Starr Jul 2022

Subjective Beliefs About Contract Enforceability, Jj Prescott, Evan Starr

Law & Economics Working Papers

This article assesses the content, role, and adaptability of subjective beliefs about contract enforceability in the context of postemployment covenants not to compete (“noncompetes”). We show that employees tend to believe that their noncompetes are enforceable, even when they are not. We provide evidence for both supply- and demand-side stories that explain employees’ persistently inaccurate beliefs. Moreover, we show that believing that unenforceable noncompetes are enforceable likely causes employees to forgo better job options and to perceive that their employer is more likely to take legal action against them if they choose to compete. Finally, we use an information experiment …


President Biden's Executive Order On Competition: An Antitrust Analysis, Herbert J. Hovenkamp Jul 2022

President Biden's Executive Order On Competition: An Antitrust Analysis, Herbert J. Hovenkamp

All Faculty Scholarship

In July, 2021, President Biden signed a far ranging Executive Order directed to promoting competition in the American economy. This paper analyzes issues covered by the Order that are most likely to affect the scope and enforcement of antitrust law. The only passage that the Executive Order quoted from a Supreme Court antitrust decision captures its antitrust ideology well – that the Sherman Act:

rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality and the greatest material progress, while at the same time …


The Economic (In) Significance Of Executive Pay Esg Incentives, David I. Walker Apr 2022

The Economic (In) Significance Of Executive Pay Esg Incentives, David I. Walker

Faculty Scholarship

The hottest topic in corporate governance circles today involves company commitments to and pursuit of ESG (environmental, social, and governance) initiatives in addition to the traditional pursuit of profits. One facet of this debate has to do with how to motivate executives to pursue ESG goals. Increasingly, companies tie executive pay to ESG performance, although even strong ESG advocates debate the advisability of doing so. This Article joins the fray by closely examining ESG-based CEO pay arrangements at a subset of companies with leadership positions on the Business Roundtable, an industry trade group that embraced ESG in a 2019 statement …


The Remainder Effect: How Automation Complements Labor Quality, James Bessen, Erich Denk, Chen Meng Feb 2022

The Remainder Effect: How Automation Complements Labor Quality, James Bessen, Erich Denk, Chen Meng

Faculty Scholarship

This paper argues that automation both complements and replaces workers. Extending the Acemoglu-Restrepo model of automation to consider labor quality, we obtain a Remainder Effect: while automation displaces labor on some tasks, it raises the returns to skill on remaining tasks across skill groups. This effect increases between-firm pay inequality while labor displacement affects within-firm inequality. Using job ad data, we find firm adoption of information technologies leads to both greater demand for diverse skills and higher pay across skill groups. This accounts for most of the sorting of skills to high paying firms that is central to rising inequality.


The American Experience With Employee Noncompete Clauses: Constraints On Employees Flourish And Do Real Damage In The Land Of Economic Liberty, Kenneth G. Dau-Schmidt, Xiaohan Sun, Phillip J. Jones Jan 2022

The American Experience With Employee Noncompete Clauses: Constraints On Employees Flourish And Do Real Damage In The Land Of Economic Liberty, Kenneth G. Dau-Schmidt, Xiaohan Sun, Phillip J. Jones

Articles by Maurer Faculty

Agreements not to compete are generally an anathema to free market advocates. Independent profit maximization is one of the fundamental assumptions of the neoclassical economic model and necessary to its conclusion that markets yield results that are Paraeto efficient. Consistent with this theory, and practical experience, agreements among competitors, or potential competitors, to divide a market, or fix price or quantity are per se violations under our antitrust laws.

Despite this fact, even some ardent free market advocates have argued on behalf of the enforcement of covenants not to compete in the employment relationship. The traditional economic argument in favor …


Block Rewards, Carried Interests, And Other Valuation Quandaries In Taxing Compensation, Henry M. Ordower Jan 2022

Block Rewards, Carried Interests, And Other Valuation Quandaries In Taxing Compensation, Henry M. Ordower

All Faculty Scholarship

In this article, Ordower contextualizes block rewards litigation with historical failures to tax compensation income paid in kind. Tax fairness principles demand current taxation of the noneconomically diluting block rewards’ market value.


A Miser’S Rule Of Reason: The Supreme Court And Antitrust Limits On Student Athlete Compensation, Herbert J. Hovenkamp Jan 2022

A Miser’S Rule Of Reason: The Supreme Court And Antitrust Limits On Student Athlete Compensation, Herbert J. Hovenkamp

All Faculty Scholarship

The unanimous Supreme Court decision in NCAA v. Alston is its most important probe of antitrust’s rule of reason in decades. The decision implicates several issues, including the role of antitrust in labor markets, how antitrust applies to institutions that have an educational mission as well as involvement in a large commercial enterprise, and how much leeway district courts should have in creating decrees that contemplate ongoing administration.

The Court accepted what has come to be the accepted framework: the plaintiff must make out a prima facie case of competitive harm. Then the burden shifts to the defendant to produce …


Transaction Cost Economics, Labor Law, And The Gig Economy, Seth C. Oranburg, Liya Palagashvili Jun 2021

Transaction Cost Economics, Labor Law, And The Gig Economy, Seth C. Oranburg, Liya Palagashvili

Law Faculty Publications

The rapid growth of technology not only is creating innovative goods and services, but it is also altering the workplace and the traditional understanding of relationships between employee and employer. This can be seen today with the rise of the gig economy and alternative work arrangements. Our paper seeks to explain how technology has reduced the transaction costs of contracting in the market. In particular, we identify the innovations that have led to reductions in triangulation, transfer, trust, and measurement costs. These costs are relevant for creating greater exchanges between consumers and labor suppliers and, hence, more work for contractors …


Noncompete Agreements In The U.S. Labor Force, Evan P. Starr, J.J. Prescott, Norman D. Bishara Feb 2021

Noncompete Agreements In The U.S. Labor Force, Evan P. Starr, J.J. Prescott, Norman D. Bishara

Articles

Using nationally representative survey data on 11,505 labor force participants, we examine the use and implementation of noncompete agreements and the employee outcomes associated with these provisions. Approximately 18 percent of labor force participants are bound by noncompetes, with 38 percent having agreed to at least one in the past. Noncompetes are more likely to be found in high-skill, high-paying jobs, but they are also common in low-skill, low-paying jobs and in states where noncompetes are unenforceable. Only 10 percent of employees negotiate over their noncompetes, and about one-third of employees are presented with noncompetes after having already accepted job …


Restoration: The Role Stakeholder Governance Must Play In Recreating A Fair And Sustainable American Economy A Reply To Professor Rock, Leo E. Strine Jr. Jan 2021

Restoration: The Role Stakeholder Governance Must Play In Recreating A Fair And Sustainable American Economy A Reply To Professor Rock, Leo E. Strine Jr.

All Faculty Scholarship

In his excellent article, For Whom is the Corporation Managed in 2020?: The Debate Over Corporate Purpose, Professor Edward Rock articulates his understanding of the debate over corporate purpose. This reply supports Professor Rock’s depiction of the current state of corporate law in the United States. It also accepts Professor Rock’s contention that finance and law and economics professors tend to equate the value of corporations to society solely with the value of their equity. But, I employ a less academic lens on the current debate about corporate purpose, and am more optimistic about proposals to change our corporate governance …


Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani Jan 2021

Compensation, Commodification, And Disablement: How Law Has Dehumanized Laboring Bodies And Excluded Nonlaboring Humans, Karen M. Tani

All Faculty Scholarship

This essay reviews Nate Holdren's Injury Impoverished: Workplace Accidents, Capitalism, and Law in the Progressive Era (Cambridge University Press, 2020), which explores the changes in legal imagination that accompanied the rise of workers' compensation programs. The essay foregrounds Holdren’s insights about disability. Injury Impoverished illustrates the meaning and material consequences that the law has given to work-related impairments over time and documents the naturalization of disability-based exclusion from the formal labor market. In the present day, with so many social benefits tied to employment, this exclusion is particularly troubling.


Caremark And Esg, Perfect Together: A Practical Approach To Implementing An Integrated, Efficient, And Effective Caremark And Eesg Strategy, Leo E. Strine Jr., Kirby M. Smith, Reilly S. Steel Jan 2021

Caremark And Esg, Perfect Together: A Practical Approach To Implementing An Integrated, Efficient, And Effective Caremark And Eesg Strategy, Leo E. Strine Jr., Kirby M. Smith, Reilly S. Steel

All Faculty Scholarship

With increased calls from investors, legislators, and academics for corporations to consider employee, environmental, social, and governance factors (“EESG”) when making decisions, boards and managers are struggling to situate EESG within their existing reporting and organizational structures. Building on an emerging literature connecting EESG with corporate compliance, this Essay argues that EESG is best understood as an extension of the board’s duty to implement and monitor a compliance program under Caremark. If a company decides to do more than the legal minimum, it will simultaneously satisfy legitimate demands for strong EESG programs and promote compliance with the law. Building …


The Behavioral Effects Of (Unenforceable) Contracts, Evan Starr, Jj Prescott, Norman Bishara Nov 2020

The Behavioral Effects Of (Unenforceable) Contracts, Evan Starr, Jj Prescott, Norman Bishara

Articles

Do contracts influence behavior independent of the law governing their enforceability? We explore this question in the context of employment noncompetes using nationally representative data for 11,500 labor force participants. We show that noncompetes are associated with reductions in employee mobility and changes in the direction of that mobility (i.e., toward noncompetitors) in both states that do and do not enforce noncompetes. Decomposing mobility into job offer generation and acceptance, we detect no evidence of differences in job search, recruitment, or offer activity associated with noncompetes. Rather, we find that employees with noncompetes—even in states that do not enforce them—frequently …


Resetting Normal: Women, Decent Work And Canada's Fractured Care Economy, The Canadian Women's Foundation, Canadian Centre For Policy Alternatives, Ontario Nonprofit Network, Fay Faraday Jul 2020

Resetting Normal: Women, Decent Work And Canada's Fractured Care Economy, The Canadian Women's Foundation, Canadian Centre For Policy Alternatives, Ontario Nonprofit Network, Fay Faraday

Commissioned Reports, Studies and Public Policy Documents

Women in Canada have been disproportionately impacted by the COVID-19 pandemic to an extent that threatens to roll back equality gains. Economic losses have fallen heavily on women and most dramatically on women living on low incomes who experience intersecting inequalities based on race, class, disability, education, and migration and immigration status. The pandemic crisis has highlighted the fragility of response systems and the urgent need for structural rethinking and systemic change.


Development On A Cracked Foundation: How The Incomplete Nature Of New Deal Labor Reform Presaged Its Ultimate Decline, Leo E. Strine Jr. Jan 2020

Development On A Cracked Foundation: How The Incomplete Nature Of New Deal Labor Reform Presaged Its Ultimate Decline, Leo E. Strine Jr.

All Faculty Scholarship

Mariano-Florentino Cuéllar, Margaret Levi, and Barry R. Weingast’s excellent essay, Twentieth Century America as a Developing Country, Conflict, Institutional Change and the Evolution of Public Law, celebrates the period during which the National Labor Relations Act facilitated the peaceful resolution of labor disputes and improved the working conditions of American workers. These distinguished authors make a strong case for the essentiality of law in regulating labor relations and the importance of national culture in providing a solid context for the emergence of legal regimes facilitating economic growth and equality. This reply to their essay explores how the New Deal’s failure …


Defined Contribution Plans And The Challenge Of Financial Illiteracy, Jill E. Fisch, Annamaria Lusardi, Andrea Hasler Jan 2020

Defined Contribution Plans And The Challenge Of Financial Illiteracy, Jill E. Fisch, Annamaria Lusardi, Andrea Hasler

All Faculty Scholarship

Retirement investing in the United States has changed dramatically. The classic defined-benefit (DB) plan has largely been replaced by the defined contribution (DC) plan. With the latter, individual employees’ decisions about how much to save for retirement and how to invest those savings determine the benefits available upon retirement.

We analyze data from the 2015 National Financial Capability Study to show that people whose only exposure to investment decisions is by virtue of their participation in an employer-sponsored 401(k) plan are poorly equipped to make sound investment decisions. Specifically, they suffer from higher levels of financial illiteracy than other investors. …


The Problem With Predators, June Carbone, William K. Black Jan 2020

The Problem With Predators, June Carbone, William K. Black

Faculty Works

Both corporate theory and sex discrimination law start with presumptions that CEOs seek to advance legitimate ends and design the internal organization of business enterprises to achieve such ends. Yet, a growing literature questions why CEOs and boards of directors nonetheless select for Machiavellianism, narcissism, psychopathy, and toxic masculinity, despite the downsides associated with these traits. Three scholarly literatures—economics, criminology, and gender theory—draw on advances in psychology to shed new light on the construction of seemingly dysfunctional corporate cultures. They start by questioning the assumption that CEOs—even CEOs of seemingly mainstream businesses—necessarily seek to advance “legitimate” ends. Instead, they suggest …


Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David I. Walker Dec 2019

Common Ownership And Executive Incentives: The Implausibility Of Compensation As An Anticompetitive Mechanism, David I. Walker

Faculty Scholarship

Mutual funds, pension funds and other institutional investors are a growing presence in U.S. equity markets, and these investors frequently hold large stakes in shares of competing companies. Because these common owners might prefer to maximize the values of their portfolios of companies, rather than the value of individual companies in isolation, this new reality has lead to a concern that companies in concentrated industries with high degrees of common ownership might compete less vigorously with each other than they otherwise would. But what mechanism would link common ownership with reduced competition? Some commentators argue that one of the most …


The Other Janus And The Future Of Labor’S Capital, David H. Webber Nov 2019

The Other Janus And The Future Of Labor’S Capital, David H. Webber

Faculty Scholarship

Two forms of labor’s capital—union funds and public pension funds—have profoundly reshaped the corporate world. They have successfully advocated for shareholder empowerment initiatives like proxy access, declassified boards, majority voting, say on pay, private fund registration, and the CEO-to-worker pay ratio. They have also served as lead plaintiffs in forty percent of federal securities fraud and Delaware deal class actions. Today, much-discussed reforms like revised shareholder proposal rules and mandatory arbitration threaten two of the main channels by which these shareholders have exercised power. But labor’s capital faces its greatest, even existential, threats from outside corporate law. This Essay addresses …


Building A Good Jobs Economy, Dani Rodrik, Charles F. Sabel Jan 2019

Building A Good Jobs Economy, Dani Rodrik, Charles F. Sabel

Faculty Scholarship

Conventional models are failing throughout the world. In the developed world, the welfare state-compensation model has been in retrenchment for some time, and the drawbacks of the neoliberal conception that has superseded it are increasingly evident. Yet there is no compelling alternative on offer. In the developing world, the conventional, tried-and-tested model of industrialization has run out of steam. In both sets of societies a combination of technological and economic forces (in particular, globalization) is creating or exacerbating productive/technological dualism, with a segment of advanced production in metropolitan areas that thrives on the uncertainty generated by the knowledge economy co-existing …


Hushing Contracts, David A. Hoffman, Erik Lampmann Jan 2019

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 …


The New Frontier For Labor In Trade Agreements, Alvaro Santos Jan 2019

The New Frontier For Labor In Trade Agreements, Alvaro Santos

Georgetown Law Faculty Publications and Other Works

In the spring of 2015, I took my students of international trade law to visit the World Trade Organization (WTO) in Geneva. It was a two-day trip, organized around lectures and discussions with staff from different divisions of the organization, the Advisory Centre of WTO Law and the permanent missions of two countries. None of my students had been there before, and even though I had taught international trade law for several years, it was also my first time visiting the headquarters of the organization. We were excited and curious. The building looked big and majestic. The back side opened …


Private Standards And The Benzene Case: A Teaching Guide, Cary Coglianese, Gabriel Scheffler Jan 2019

Private Standards And The Benzene Case: A Teaching Guide, Cary Coglianese, Gabriel Scheffler

All Faculty Scholarship

Private standards play a central role in the governance of economic activity. They also figure significantly in many public regulations, with more than 17,000 references to private standards contained in the federal regulatory code. Nevertheless, private standards remain largely overlooked in law school curricula. One clear example is Industrial Union Department, AFL-CIO v. American Petroleum Institute (often referred to as the “Benzene Case”), a 1980 Supreme Court decision that is widely excerpted and discussed in major casebooks on administrative law, regulation, environmental law, and statutory interpretation. The Benzene Case raises several important legal issues, including the nondelegation doctrine, the use …


Dignity Transacted, Lu-In Wang, Zachary W. Brewster Jan 2019

Dignity Transacted, Lu-In Wang, Zachary W. Brewster

Articles

In interactive customer service encounters, the dignity of the parties becomes the currency of a commercial transaction. Service firms that profit from customer satisfaction place great emphasis on emotional labor, the work that service providers do to make customers feel cared for and esteemed. But performing emotional labor can deny dignity to workers, by highlighting their subservience and requiring them to suppress their own emotions in an effort to elevate the status and experiences of their customers. Paradoxically, the burden of performing emotional labor may also impose transactional costs on some customers by facilitating discrimination in service delivery. Drawing on …


Finishing The Job Best Practices For A Diverse Workforce In The Construction Industry V.8 Sept 2018, Susan Moir Scd Sep 2018

Finishing The Job Best Practices For A Diverse Workforce In The Construction Industry V.8 Sept 2018, Susan Moir Scd

Labor Studies Faculty Publication Series

This manual is a work in progress. It is produced by the Policy Group on Tradeswomen’s Issues (PGTI), a regional collaboration of researchers, government agencies, unions, community-based organizations, developers and contractors committed to increasing access for women and people of color to good paying careers in the construction trades. Our goal is to make our shared efforts and experiences helpful to industry leaders who share our commitment. It is based on best practices developed on major projects that came close, met, or exceeded workforce hiring goals. This manual and additional resources are available online at on the PGTI website at …