Law Commons^™

The Case For Specific Performance Of Personal Service Contracts, Kimberly D. Krawiec, Nathan B. Oman

Faculty Publications

The per se rule against specific enforcement of personal service contracts is well established under Anglo-American contract law. At the same time, there is a well-developed literature suggesting that specific performance is often a superior remedy to money damages, and those arguments apply with equal or greater force to personal service contracts. We, therefore, argue that this per se rule is mistaken. The per se rule has been justified by the need to avoid involuntary servitude, preserve personal autonomy, and husband judicial resources. We argue that these claims cannot justify a per se rule against specific performance, particularly as at-will …

A Market-Based Approach To Effective Slaughterhouse Line Speed Regulation, Kailey Mcneal

Animal Law Review

The nature of animal agriculture in the United States is heavily industrialized and profit-centered. Industrial animal agriculture maximizes profits and production by employing low-wage workers to do significant loads of labor. Slaughterhouses’ implementation of faster line speeds reflects this tactic. As the industry continues to increase line speeds to boost profits, workers, animals, and the environment continue to face augmented risks to their health and safety. Nonetheless, slaughterhouse line speeds at the federal level remain largely un- and under-regulated. The current federal regulatory scheme is unduly influenced by industry interests, prioritizes profit over safety, and lacks effective enforcement mechanisms. Through …

From Ambiguity To Overreach: The Ftc's Questionable Authority To Ban Non-Competes, Taylor Ray Pelton

Cybaris®

No abstract provided.

Blockchain: A Practical Solution To Monitor Corporate Supply Chains, Gaige J. Graham

Wyoming Law Review

The persistence of human rights abuses within the Democratic Republic of the Congo (DRC)—particularly in the cobalt mining industry— underscore the failure of international labor protections and corporate due diligence. Despite the International Labor Organization and United Nations Guiding Principles on Business and Human Rights (Ruggie Principles), corporations continue to profit from child labor, forced labor, and unregulated artisanal mining. Existing accountability mechanisms, reliant on state enforcement and voluntary corporate compliance, have proven inadequate to address these labor issues. This Comment argues that blockchain technology offers a practical, scalable solution for supply chain transparency, capable of mitigating labor rights violations …

Rearticulating Labor Rights, Stefan M. Mcdaniel

Journal Articles

From the Article

In principle, Section 7 of the National Labor Relations Act (NLRA) guarantees most private-sector employees the right to be free from employer interference when they band together in pursuit of shared interests. In practice, most workers—especially the “pre-organizational” workers who have no contact with a union—cannot use their Section 7 rights because they do not know they exist. In 2011, the National Labor Relations Board (the Board), the agency which administers the NLRA, promulgated a Rule requiring employers to post notice of workers’ rights. The Rule happened to succumb to legal challenge but would, in any case, …

"Arbitration In Name Only": A Race Claims Mismatch, Michael Z. Green

Cardozo Journal of Conflict Resolution

With arbitration’s meteoric rise as a tool in resolving statutory employment discrimination matters beginning in the 1990s, concerns about lack of employee bargaining power received little consideration when raised in court challenges to the enforcement of employer-mandated agreements to arbitrate those claims. Only in rare circumstances, when an employer appeared to go to extremes in using its overwhelming bargaining power to implement an arbitration process so clearly unfair would a court find the agreement created an unfair “arbitration in name only” that should not be enforced.

Employers have become savvier in how they require employees to agree to resolve discrimination …

A Comparative Study Of The U.S. And Foreign Tipping Culture And How Collective Bargaining Can Eliminate Mandatory Tipping In The U.S., Matthew Zelman

Cardozo Journal of Conflict Resolution

Tipping culture in the United States has gotten out of hand, but its roots go very deep. Tipping has been a part of the culture in the United States since the early 1800s, when tips were given to pirates and porters. Today, the share of workers who rely on tips as part of their wages is extraordinary, with sixty percent of service workers stating that they rely on tips for over 30 percent of their income. Many restaurants incorporate mandatory tips on customers’ bills, which has changed tipping from being voluntary.

This Note will propose that “tipped employees” across different …

Algorithmic Governance And Nondiscrimination Rights In The Workplace, Pauline Kim

Scholarship@WashULaw

This chapter analyzes existing legal responses to the problem of discriminatory algorithms in the workplace. As firms increasingly rely on algorithms or automated decision systems, a type of artificial intelligence, to manage their workforces, concerns have grown that these tools can systematically exclude historically disadvantaged groups. One response is to rely on traditional anti-discrimination law. These laws clearly prohibit certain forms of algorithmic discrimination; however, the complex, opaque nature of algorithms makes identifying and proving discriminatory harms challenging. Another response looks to broader frameworks of data protection and algorithmic regulation to protect against workplace discrimination. These initiatives are promising, but …

Professors And Company Law: Implications For Academic Freedom, Salar Ghahramani J.D.

American University Journal of Gender, Social Policy & the Law

This Article examines the intersection of company law and academic freedom, specifically exploring how nonprofit universities might invoke corporate and agency law principles to assert breach of fiduciary duty claims when a university could view a professor’s handling of controversial topics or facilitation of provocative class discussions as detrimental to its financial interests or public reputation. Such allegations might arise when universities perceive that these discussions alienate donors, provoke public backlash, or otherwise harm the institution’s standing, thereby framing the professor’s academic choices as potentially disloyal or harmful to the university. While public university professors might argue that the First …

Labor Law, Ownership, And The Firm, Sanjukta Paul

Articles

In shaping economic coordination within and across both firms and markets, one significant action of law is to allocate privileges or rights between people or groups of people. These include the right to coordinate with other people or groups of people in particular ways regarding core economic decisions-a type of activity that is not always or in all circumstances legally permissible. An area that makes this more general action of law especially concrete is antitrust or competition law, with its collection of "exemptions." Antitrust's formal and informal exemptions quite directly allocate economic coordination rights, for particular kinds of activity, and …

Time For A Clean Finish? Analyzing A New Path To Collective Bargaining At The Wwe, Paige Green

Cardozo Arts & Entertainment Law Journal

The note argues that professional wrestlers in the WWE face significant challenges in achieving fair compensation and better working conditions due to their classification as independent contractors, which denies them protections under the National Labor Relations Act (NLRA). It proposes that leveraging antitrust law could provide an alternative and effective strategy for wrestlers to collectively bargain and improve their circumstances, drawing parallels to successful efforts by UFC fighters.

The Doors Of Janus: A Critical Analysis Of The Socio-Technical Forces Eroding Trust In The Rule Of Law, Anuj Puri, Esther Keymolen

Cardozo Arts & Entertainment Law Journal

The Rule of Law is neither just a principle nor solely the institutions that embody that principle, a critical aspect of the Rule of Law is its grounding in trust which often gets neglected in the surrounding discourse. When the citizens' trust in the Rule of Law weakens, the Rule of Law becomes fragile. In this article we examine the impact of emerging technologies on the citizens' trust in the Rule of Law. Our analysis is specifcally focused on the effect of systemic disinformation which is likely to worsen with the advent of Generative AI, algorithmic misgovernance, and the digitalization …

Title Ix And Athlete Compensation In The Postamateurism Era, Erin Buzuvis

Fordham Law Review

No abstract provided.

Life After Employee-Status In College Sports, Marc Edelman, John T. Holden, Michael A. Mccann

Fordham Law Review

National Collegiate Athletic Association; NCAA; college sports; intercollegiate sports; college athletes; college-athlete employee; amateurism; worker; employee; employment status; collective bargaining; single-employer bargaining units; Multiemployer Bargaining Units; Joint Employer Bargaining Units; antitrust

Troubling Trends: Ada Definition-Of-Disability Cases 2019-2023, Nicole Buonocore Porter

Faculty Publications

This empirical Article continues my every-five-year tradition of examining every federal case discussing the definition of disability since the Americans with Disabilities Act (ADA) was amended, effective 2009. The results of this research from the third five-year period (2019–2023) are disappointing in both familiar and surprising ways. Similar to the 2014–2018 period, we continue to see way too many courts incorrectly applying (or not even citing to) the ADA Amendments Act. Moreover, I discovered several new troubling trends in this dataset that raise the possibility that we might be heading toward another backlash against ADA plaintiffs. This Article presents my …

By Any Other Name: Dei Is Not What You Think It Is, Nicole Porter

Faculty Publications

In this moment, Diversity, Equity, and Inclusion (DEI) programs are hotly debated and very misunderstood. Contrary to popular belief, DEI programs do not drastically change an employer’s hiring practices. They are, to some extent, performative. In this essay, I explain what DEI really is and why a rebranding (or at least a new name) might be in order.

Worker Protection Or Commercial Facilitation: The British Empire, Labor Governance And The Gradual Invisibilization Of Labor Coercion During The Age Of High Imperialism, Christopher Roberts, Michelle Ong

Seattle Journal for Social Justice

This article considers labor governance and coercive labor practices in the British Empire between the late nineteenth and early twentieth centuries. In particular, it focuses its attention on several major commissions of inquiry undertaken around the British Empire in the period, as well as reforms that took place alongside those inquiries. In part, the article concludes these reforms were motivated by protective purposes, demonstrating some degree of genuine concern with workers’ well-being. More significantly, however, it finds these reforms were motivated by British imperial desire to ensure stable labor supplies, enhance the legitimacy of the British Empire, and establish more …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Curing The Cancer Pledge: Three Legal Reforms To Support Employees With Cancer, Hannah R. Weiser, Elizabeth Brown

Lewis & Clark Law Review

The 2023 Super Bowl featured a short film about the #WorkingWithCancer Pledge, a business initiative supporting employees with cancer, to over 100 million viewers. This film highlighted the struggles of a disease that affects a shocking 50% of individuals. It also underscored the need for a broader and more impactful approach ensuring that people with cancer have as full and equitable opportunities to work as other employees. While cancer in the workplace is increasingly common, misconceptions and stigma surrounding cancer exacerbate the gaps in legal protections for both employees with cancer and their employers. Employees with cancer need better legal …

The Value Of A Statistical Life: From Skin In The Game To Vision Zero, Michael C. Duff

All Faculty Scholarship

This essay discusses justice issues surrounding occupational safety and health and assesses the ethical legitimacy—the justice—of regulatory cost benefit analysis when the costs in question involve the risks and realization of workplace injury and fatalities. The current “value of a statistical life” for legal-regulatory purposes is 13.1 million dollars. While economists are careful to say that this figure does not “really” represent an attempt to value any particular life, the purpose of even calculating the number is to provide an “aggregated” statistical justification for saying “no” to rules requiring safer work. This seems acceptable until you, or someone you love, …

Unprincipled Investor Bifurcations, Anita K. Krug

American University Law Review

The investment world is full of bifurcations—that is, divisions among groups of investors that the securities laws establish for the purpose of furthering the regulatory goal of investor protection. The notion behind these bifurcations is that only more wealthy investors should be permitted to invest in riskier investment products. However, as this Article details, a more pernicious bifurcation has emerged in recent years, alongside the growing popularity of exchange-traded funds, or “ETFs.” Investing in ETFs is desirable for many investors because ETF shares, unlike shares of mutual funds, can be traded throughout the day. In addition, ETFs allow investors to …

No-Hire Rulings Forget Competition, Val Ricks

American University Law Review

Two recent and noted antitrust rulings on the legality of no-hire (or “no-poach”) agreements paid lip service to preserving and promoting competition for employees but in the end failed to apply competition as a standard. Instead—and this is seen only deep in the weeds of the decisions themselves, on careful reading—judges demanded that no-hire agreements be held illegal only when they constitute abuse of market power, more or less. These decisions impliedly distinguish horizontal agreements not to compete for employees from horizontal agreements not to compete for customers, or on price. The opinions tend to “require careful economic analysis” of …

Right Not To Work: Unions And Title Vii, Seth Oranburg

FIU Law Review

This article explores how Title VII's mandate for religious accommodation conflicts with union seniority rights, as revealed in Groff v. DeJoy. It argues that labor unions often oppose Sabbath accommodations not out of hostility to religion, but to protect bargained-for entitlements. The piece highlights a growing legal tension: whether co-worker burdens count as “undue hardship” under Title VII—a question with major implications for religious liberty in unionized workplaces.

Being Pregnant In Someone Else's Body, Jennifer S. Hendricks

FIU Law Review

In the wake of the Dobbs decision overturning the right to abortion, now is a critical time to re-assess how legal feminism theorizes the pregnant body. Before Dobbs, feminist legal scholarship had blazed a path of anti-maternalism, a stance rooted in liberal, formalist notions of equality that denigrates the “feminine” and too often minimizes the importance of reproductive issues both as tools of sex-based subordination in the present and as foundations for liberation in the future. Anti-maternalism is attractive to legal scholars because it minimizes sex and gender differences and may appear to be gender-inclusive. It has produced arguments that …

Technology-Facilitated Labor Trafficking Power And Control Wheel, Julie A. Dahlstrom

Faculty Scholarship

This wheel is based on the Article, "Digital Servitude", forthcoming in the Boston College Law Review.

Rebalancing Retirement: How 401(K) Plans Exacerbate Inequality And What We Can Do About It, Quinn Curtis, Leo E. Strine, David H. Webber

Faculty Scholarship

Incentives for individuals to save for retirement currently total 1.5% of US GDP. For that substantial investment, we get a system that actually deepens wealth inequality. The top 10% of earners capture 60% of the associated tax benefits, and employer matching contributions disproportionately favor the highest earners. Although defined contribution plans have long been subject to non-discrimination requirements aimed at ensuring that benefits do not accrue predominantly to the wealthiest participants, these rules have little bite. In an irony, we estimate that the entire 401(k) system would fail the non-discrimination test that every employer offering such a plan is expected …