Labor and Employment Law Commons^™

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 …

The Impact Of Epic Systems In The Labor And Employment Context, Lise Gelernter

Journal Articles

In Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018), the Supreme Court ruled that an employer did not violate the National Labor Relations Act (NLRA) when it required employees to agree to arbitrate all claims against the employer and also waive their rights to bring a class or collective action against the employer. The Court reasoned that class or collective actions were not the type of "concerted activities for the purpose of collective bargaining or other mutual aid or protection” that Section 7 of the NLRA protects. This comment, part of a three-part discussion on the impact …

The Problem Of Wage Theft, Nicole Hallett

Journal Articles

Wage theft inflicts serious harm on America's working poor but has received little attention from policymakers seeking to address income inequality in the United States. This Article provides a comprehensive analysis of the causes of the wage theft crisis and the failure of the current enforcement regime to address it. It argues that existing policy reforms will fail, because they misunderstand the nature of the crisis and the incentives that employers face when deciding to steal workers' wages. It then proposes series of reforms that could work, while arguing that changing the economic calculus alone will be unlikely to solve …

Better Than Basic Income? Liberty, Equality, And The Regulation Of Working Time, Matthew Dimick

Journal Articles

Basic income has attracted the attention of academics, policy makers, and politicians around the globe. Basic income—a no-strings-attached cash transfer made to all citizens of a country, rich or poor—has been lauded as a plan to eliminate poverty, reduce income inequality, redress imbalances in the labor market, remedy the impending problem of mass technology-induced unemployment—the “robot apocalypse”—and make possible meaningful lives for those otherwise dependent on menial work in the labor market. It has also been proposed as an efficient, nonpaternalistic, and stigma-free alternative to existing welfare state policies. This Article compares basic income to an alternative policy proposal: the …

Wage-Setting Institutions And Corporate Governance, Matthew Dimick, Neel Rao

Journal Articles

Why do corporate governance law and practice differ across countries? This paper explains how wage-setting institutions influence ownership structures and investor protection laws. In particular, we identify a nonmonotonic relationship between the level of centralization in wage-bargaining institutions and the level of ownership concentration and investor protection laws. As wage setting becomes more centralized, ownership concentration within firms at first becomes more, and then less, concentrated. In addition, the socially optimal level of investor protection laws is decreasing in ownership concentration. Thus, as wage-setting institutions become more centralized, investor protection laws become less and then more protective. This explanation is …

The Customer Is Not Always Right: Balancing Worker And Customer Welfare In Antitrust Law, Clayton J. Masterman

Journal Articles

A natural consequence of employer restraints of trade that decrease wages is lower prices. Under antitrust law, courts evaluate most such restraints of trade under the rule of reason. This Note argues that the rule of reason’s focus on consumer welfare and the natural price decrease that follows from employer restraints of trade cause underenforcement of antitrust law against anticompetitive employer conduct. Such a result is anomalous, because the consumer welfare standard that permeates antitrust law should protect employees as much as customers that purchase goods.

To solve the under-enforcement problem, this Note proposes that courts analyzing a restraint of …

Political Decision-Making At The National Labor Relations Board: An Empirical Examination Of The Board's Unfair Labor Practice Disputes Through The Clinton And Bush Ii Years, Amy Semet

Journal Articles

Does partisan ideology influence the voting of members of multi-member adjudicatory bodies at “independent agencies”? In studying the federal circuit courts of appeals, scholars have found that results of cases vary depending upon the partisan composition of the particular panel hearing a case. Few scholars to date, however, have systematically studied whether partisan panel effects occur in administrative adjudication. In this Article, I explore the impact that partisan ideology and panel composition have on the vote choices of an administrative agency rumored to be one of the most partisan: the National Labor Relations Board (“NLRB”). Employing an original dataset of …

Productive Unionism, Matthew Dimick

Journal Articles

Do labor unions have a future? This Article considers the role and importance of labor union structures, in particular the degree of centralization in collective bargaining, to the future of labor unions. Centralization refers primarily to the level at which collective bargaining takes place: whether at the plant, firm, industry, or national level. The Article examines the historical origins of different structures of bargaining in the United States and Europe, the important implications that centralization has for economic productivity, and the ways that various labor law rules reinforce or reflect different bargaining structures. Most critically, the Article contends that greater …

Labor Law, New Governance, And The Ghent System, Matthew Dimick

Journal Articles

The Employee Free Choice Act (EFCA) was the most significant legislation proposed for reforming the National Labor Relations Act (NLRA) in over a generation and the centerpiece of the American labor movement’s revitalization strategy. Yet EFCA hews closely to the particular regulatory model established by the NLRA at the peak of the New Deal, now over seventy-five years ago. Further, recent scholarship suggests that traditional regulatory approaches are giving way to new kinds of governance methods for addressing social problems. Rather than reviving an old regulatory model, should “New Governance” approaches instead be sought for addressing problems in employment representation? …

Compensation, Employment Security, And The Economics Of Public-Sector Labor Law, Matthew Dimick

Journal Articles

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Working On Immigration: Three Models Of Labor And Employment Regulation, Rick Su

Journal Articles

The desire to tailor our immigration system to the economic interests of our nation is as old as its founding. Yet after more than two centuries of regulatory tinkering, we seem no closer to finding the right balance. Contemporary observers largely ascribe this failure to conflicts over immigration. Shifting the focus, I suggest here that longstanding disagreements in the world of economic regulations — in particular, tensions over the government’s role in regulating labor conditions and employment practices — also explains much of the difficulty behind formulating a policy approach to immigration. In other words, we cannot reach a political …

Revitalizing Union Democracy: Labor Law, Bureaucracy, And Workplace Association, Matthew Dimick

Journal Articles

Do core doctrines of labor-relations law obstruct the internal democratic governance of labor unions in the United States? Union democracy is likely an essential precondition for the broader strategic and organizational changes unions must undertake in order to recruit new union members — the labor movement’s cardinal priority. Yet according to widely accepted wisdom, the weakness of democracy within labor unions is the unavoidable outcome of an “iron law of oligarchy” that operates in all such membership-based organizations. This Article challenges this conventional thinking and argues that the triumph of oligarchy over democracy in US labor unions is not inevitable, …

A Historical Overview Of The Fair Labor Standards Act, Pamela Newell

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The Great American Makeover: The Sexing Up And Dumbing Down Of Women's Work After Jespersen V. Harrah's Operating Company, Inc., Dianne Avery

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Branded: Corporate Image, Sexual Stereotyping, And The New Face Of Capitalism, Dianne Avery, Marion Crain

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Free Wage Labor And The Suffrage In Nineteenth Century England, Robert J. Steinfeld

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The Voyage Of The Neptune Jade: The Perils And Promises Of Transnational Labor Solidarity, James B. Atleson

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Coercion, Contract And Free Labor In The Nineteenth Century (A Response To Gunther Peck), Robert J. Steinfeld

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Caring For Workers (Symposium On Law, Labor, And Gender), Martha T. Mccluskey

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The Illusion Of Efficiency In Workers' Compensation "Reform", Martha T. Mccluskey

Journal Articles

From the late 1980s to 1990s, most states enacted major revisions to their workers' compensation systems. These law changes aim to restrict benefits for injured workers in response to perceptions that rising workers' compensation insurance costs had reached crisis levels by the late 1980s. This article analyzes the main features of these benefit reforms, and shows how these reforms reveal the problems of the predominant economic efficiency rationales underlying recent retrenchment of social welfare programs in general.

Using workers' compensation as an example, I argue that a premise central to much of contemporary law and policy - the distinction between …

Capturing Volition Itself: Employee Involvement And The Team Act, Johanna Oreskovic

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Making The Teamsters Safe For Democracy, George Kannar

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Property And Suffrage In The Early American Republic, Robert J. Steinfeld

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"As Best To Subserve Their Own Interests": Lemuel Shaw, Labor Conspiracy, And Fellow Servants, Alfred S. Konefsky

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Federal Labor Rights And Access To Private Property: The Nlrb And The Right To Exclude, Dianne Avery

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Images Of Violence In Labor Jurisprudence: The Regulation Of Picketing And Boycotts, 1894-1921, Dianne Avery

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Reflections On Labor, Power, And Society, James B. Atleson

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Obscenities In The Workplace: A Comment On Foul And Fair Expression And Status Relationships, James B. Atleson

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The Circle Of Boys Market: A Comment On Judicial Inventiveness, James B. Atleson

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The Implicit Assumptions Of Labor Law Scholarship—Making Sense Of The Last Fifty Secondary Boycott Decisions, Or How I Spent My Summer Vacations, James B. Atleson

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