Law Commons^™

Overseeing The Administrative State, Jill E. Fisch

Seattle University Law Review

In a series of recent cases, the Supreme Court has reduced the regulatory power of the Administrative State. Pending cases offer vehicles for the Court to go still further. Although the Court’s skepticism of administrative agencies may be rooted in Constitutional principles or political expediency, this Article explores another possible explanation—a shift in the nature of agencies and their regulatory role. As Pritchard and Thompson detail in their important book, A History of Securities Law in the Supreme Court, the Supreme Court was initially skeptical of agency power, jeopardizing Franklin Delano Roosevelt (FDR)’s ambitious New Deal plan. The Court’s acceptance …

The Sec, The Supreme Court, And The Administrative State, Paul G. Mahoney

Seattle University Law Review

Pritchard and Thompson have given those of us who study the SEC and the securities laws much food for thought. Their methodological focus is on the internal dynamics of the Court’s deliberations, on which they have done detailed and valuable work. The Court did not, however, operate in a vacuum. Intellectual trends in economics and law over the past century can also help us understand the SEC’s fortunes in the federal courts and make predictions about its future.

A Hard Pill To Swallow: The Abysmal Mental Health Standards Of Detained Immigrant Children In The United States, Rama Bankesly

Seattle University Law Review

After setting foot into the U.S., unaccompanied children must learn to navigate academic and legal systems while receiving little support and carrying the heavy burden of effects of trauma on their mental health. They need access to mental health care from qualified professionals, but as this Comment will explain, they systematically fail to receive care, as can be seen in cases like Doe v. Shenandoah Valley Juv. Ctr. Comm’n. In Shenandoah, an unaccompanied child arrived in the U.S. and was placed in a facility that failed to provide remotely adequate mental health care and in fact was subjected …

The Patent Law Origins Of Science Fiction, Camilla Hrdy, Daniel H. Brean

Akron Law Faculty Publications

This Article reveals the surprising role of patent law in shaping the literary genre of science fiction. Drawing on previously unpublished sources, the Article shows that Hugo Gernsback—the so-called “father” of science fiction who started the first all-science-fiction magazine in 1926—believed that works of science fiction are analogous to patents. Like patents, science fiction stories can disclose useful information to the public about new inventions. Like patents, science fiction stories can influence future inventors and drive innovation. Gernsback went even further, positing that some of the inventions depicted in science fiction should themselves be patentable. In 1952, he urged Congress …

Symposium Introduction: The Effect Of Dobbs On Work Law, Nicole Buonocore Porter

Faculty Publications

In March 2023, Chicago-Kent College of Law hosted a symposium—The Effect of Dobbs on Work Law—to explore the ways that the Dobbs abortion decision has affected the workplace. The presenters at that live symposium wrote articles that are being published in this journal. As the host of the symposium and the Editor of this Journal, I use this Article to introduce the articles in this symposium issue and to provide my reflections on them. I also briefly address the topic that I presented at the symposium—the effect of Dobbs on people with disabilities.

Mothers With Disabilities In The Workplace Post-Pandemic & Post-Dobbs, Nicole Buonocore Porter

Faculty Publications

Between when I wrote Mothers with Disabilities and Fall 2023, two major developments have occurred that justify revisiting this topic. The first is the COVID-19 pandemic, which dramatically changed all aspects of our work lives and home lives. The second is the Supreme Court’s landmark decision in 2022, Dobbs v. Jackson Women’s Health Organization, which overturned a woman’s constitutional right to have an abortion. Both of these developments have unique, sometimes conflicting effects on mothers with disabilities.

Accordingly, this Article explores the workplace effects of the pandemic and the Dobbs decision on mothers with disabilities. Drawing on my prior …

Gender-Based Violence And Harassment At Sea, Desiree Leclercq

Scholarly Works

This Symposium contribution assesses the ability of international law to evolve to offer essential protections for workers in an increasingly globalized world. It focuses on protections for women seafarers, specifically around gender-based violence and harassment on board vessels. Even though it is the world’s oldest transnational sector, seafaring remains overwhelmingly male-dominated. Consequently, international law was not initially conceived with women seafarers in mind. Now that women have broken into the maritime profession, they count on international law to evolve in kind. Notwithstanding, they continue to face sexist, if not violent, workplaces, and report high incidents of gender-based violence and harassment …

Limitations Of The “Four-Fifths Rule” And Statistical Parity Tests For Measuring Fairness, Pauline Kim, Manish Raghavan

Scholarship@WashULaw

To ensure the fairness of algorithmic decision systems, such as employment selection tools, computer scientists and practitioners often refer to the so-called “four-fifths rule” as a measure of a tool’s compliance with anti-discrimination law. This reliance is problematic because the “rule” is in fact not a legal rule for establishing discrimination, and it offers a crude test that will often be over- and under-inclusive in identifying practices that warrant further scrutiny. The “four-fifths rule” is one of a broader class of statistical tests, which we call Statistical Parity Tests (SPTs), that compare selection rates across demographic groups. While some SPTs …

The Inherent Harm Of Employment Discrimination: What Behavioral Economics Teaches Us About Title Vii's Adverse Action Requirement, Janelle L. Ariota

Campbell Law Review

For decades, many courts have wrestled with the judicially created concept of "adverse employment actions" in determining whether a plaintiffhas proved a primafacie case of employment discrimination under Title VII of the Civil Rights Act of1964. Circuit courts have regularly applied different types of heightened adverse employment action standards, which only muddied the already complicated understanding ofworkplace discrimination. This Comment explores the recent circuit split concerning adverse employment actions and the introduction of the Supreme Court's new "some harm" testfrom Muldrow v. City of St. Louis. This Comment takes the position that principal behavioral economics theories can inform the judicial …

Profit, Mission, And Protest At Work, Marion Crain

Scholarship@WashULaw

The classic understanding of capitalism maintains that the social responsibility of business is to increase its profits. But in the last decade, many firms have announced commitments to various social justice issues, folding them into corporate mission statements, codes of corporate social responsibility, and branding. Firms engaging in so-called “woke capitalism” signal their virtuous support for progressive social causes favored by both their consumer base and their idealistic young workers. This has become particularly important in a tight labor market: by targeting workers’ values, savvy firms increase recruiting yields, enhance productivity, and reduce training costs as retention rates rise, while …

Less Discriminatory Algorithms, Pauline Kim, Emily Black, John Logan Koepke, Solon Barocas, Mingwei Hsu

Scholarship@WashULaw

Entities that use algorithmic systems in traditional civil rights domains like housing, employment, and credit should have a duty to search for and implement less discriminatory algorithms (LDAs). Why? Work in computer science has established that, contrary to conventional wisdom, for a given prediction problem there are almost always multiple possible models with equivalent performance—a phenomenon termed model multiplicity. Critically for our purposes, different models of equivalent performance can produce different predictions for the same individual, and, in aggregate, exhibit different levels of impacts across demographic groups. As a result, when an algorithmic system displays a disparate impact, model multiplicity …

Remote Workers, Ever-Present Risk: Employer Liability For Data Breaches In The Era Of Hybrid Workplaces, David Golubock

Journal of Law, Technology, & the Internet

The years since the onset of the COVID-19 pandemic have seen explosive growth in the number of remote workers, and companies have struggled to cope with a perceived loss of productivity and establish reliable methods of remote access to cope with this influx. At the same time, the last few years have seen a continued rise in the threat of data breaches, as sophisticated groups of malicious actors have targeted businesses and governments, locking systems with ransomware and exposing sensitive company data and employees' personal information. This article aims to examine the intersection between these two trends, examining how an …

Drug Addiction, Insanity, And Competency: How The Halimi Case Galvanizes A U.S.-Inspired Reform Of France's Criminal Responsibility System, Ruben Attia

Cardozo International & Comparative Law Review

The Halimi case, culminating in a verdict from the Court of Cassation in April 2021, has ignited intense and contentious debates on criminal responsibility, leading to a profound erosion of public trust in the French judicial system. This Note delves into the urgency of addressing the issues presented by Halimi and emphasizes the necessity for innovative approaches within the French legislative framework. Striking a delicate balance between permitting the trial of controversial cases and upholding the age-old moral duty of excluding the mentally insane from guilty verdicts, this Note compares the intricacies of criminal responsibility in France with those in …

The Student-Athlete-Employee: Forging An Equitable Path Toward A New Ncaa, Halle R. Fiedler

Fordham Law Review

In 2021, the landscape of National Collegiate Athletic Association (NCAA) sports as we knew it shifted dramatically as the U.S. Supreme Court held that student-athletes could now receive compensation based on their names, images, and likenesses (NIL). For the first time in the history of college sports, student-athletes may now receive a share of the billions of dollars that they have been generating for their universities and the NCAA for decades. Since this ruling, however, there have been several questions as to how to best regulate student-athletes in this new universe, and whether the NCAA’s long-standing amateurism model is durable …

The Impact Of Banning Confidential Settlements On Discrimination Dispute Resolution, Joni Hersch, Blair D. Bullock

Vanderbilt Law School Faculty Publications

The #MeToo movement exposed how workplace harassment plagues employment in the United States. Several states responded by passing legislation aimed at curbing harassment and employment discrimination in the workplace. One of the most common legislative efforts was to ban confidentiality provisions in certain settlement agreements. These bans, in part, attempted to stop “secret settlements” by shining light on workplace discrimination and exposing serial harassers as a means to motivate firms to actively deter workplace discrimination.

But do bans on confidentiality agreements deter the bad act? For these laws to have a deterrent effect, claims must be revealed in a public …

Students For Fair Admissions: Affirming Affirmative Action And Shapeshifting Towards Cognitive Diversity?, Steven A. Ramirez

Seattle University Law Review

The Roberts Court holds a well-earned reputation for overturning Supreme Court precedent regardless of the long-standing nature of the case. The Roberts Court knows how to overrule precedent. In Students for Fair Admissions v. Harvard (SFFA), the Court’s majority opinion never intimates that it overrules Grutter v. Bollinger, the Court’s leading opinion permitting race-based affirmative action in college admissions. Instead, the Roberts Court applied Grutter as authoritative to hold certain affirmative action programs entailing racial preferences violative of the Constitution. These programs did not provide an end point, nor did they require assessment, review, periodic expiration, or revision for greater …

Dentistry And The Law: Know The Facts About Noncompete And Liquidated Damages Agreements, Dan Schulte Jd

The Journal of the Michigan Dental Association

Navigating dental employment agreements involves understanding the enforceability of non-compete and liquidated damages provisions. While these aim to protect the employer's business, courts may scrutinize their reasonability. In Michigan, noncompete terms of two years or less are generally deemed reasonable, and the restricted area must align with the patient base. A $15,000 liquidated damages amount per patient might face challenges, as it should relate reasonably to actual damages. Courts may also consider equitable factors and the employer's adherence to the agreement. Both employers and employees benefit from reasonable restrictions, avoiding potential legal disputes.

Staff Matters: Are There Risks To Using Ai In Our Practice?, Jodi Schafer Sphr, Shrm-Scp

The Journal of the Michigan Dental Association

As your practice adopts AI for hiring processes, it brings efficiency but also potential pitfalls. The increasing use of AI, such as ChatGPT, streamlines tasks like resume screening, but caution is essential. Recent executive orders emphasize safety assessments and civil rights in AI. The Equal Employment Opportunity Commission focuses on transparency and consent in recruitment AI use. Legal compliance is vital to prevent discrimination; criteria like education and experience must be applied consistently. Additionally, employee monitoring AI requires careful implementation, ensuring transparency and human oversight. While AI offers benefits, its workplace integration demands careful consideration, testing, and ongoing evaluation.

Labor Strife And Peace, Desiree Leclercq

Scholarly Works

This Article examines a significant yet underexplored feature in the decline of worker power: The gradual erosion of protections under the National Labor Relations Act (NLRA) for workplace protest by rank-and-file, nonunion workers. Rather than protect their protest as necessary to galvanize workplace solidarity and organizing, current labor doctrine offers employers various opportunities to fire them. Focusing on nonunion workers standing up to management, this Article offers three key insights into U.S. labor law. First, it draws on social movements to confirm strife’s vital but uneasy role in workplace solidarity. Second, it unearths the NLRA’s original intention to protect the …

Traditional Notions Of Fair Play And Substantial Justice?: The Interplay Between Remote Work, State Regulations, And Personal Jurisdiction, Kathryn M. Couture

Roger Williams University Law Review

No abstract provided.

Reimagining The Deduction For Employee Compensation, Daniel Schaffa

Law Faculty Publications

U.S. businesses pay trillions of dollars in employee compensation, a substantial fraction of which is deductible for tax purposes. This deduction reduces the taxable income of businesses, ultimately lowering business tax burdens by hundreds of billions of dollars. With a few exceptions, the tax code confers the same deduction to a business for every dollar of employee compensation, regardless of whether that compensation goes to an employee earning millions or an employee earning minimum wage. This is consistent with a pure Haig-Simons income tax, under which any business expense incurred ought to be deductible dollar-for-dollar. But many, if not most, …

Regulation By (Bad) Proxy: How Selective Application Of Transaction Cost Economics Tainted The Ftc's Proposed Ban Of Employee Noncompete Agreements, Alan J. Meese

Faculty Publications

Agencies have imperfect information about conduct they regulate. This problem is particularly acute when identical conduct has differing effects in various markets. Determining the economy-wide impact of such conduct can be difficult or impossible.

The FTC faces such a challenge. The Commission has announced a rule banning the nation’s 30 million employee noncompete agreements (“NCAs”) as unfair methods of competition under Section 5 of the FTC Act. The Commission determined that NCAs likely reduce aggregate wages, helping to establish a presumptive violation. The Commission also found that nearly all NCAs are both procedurally coercive—because employers use overwhelming bargaining power to …

Redistributing Justice, Benjamin Levin, Kate Levine

Scholarship@WashULaw

This article surfaces an obstacle to decarceration hiding in plain sight: progressives’ continued support for the carceral system. Despite increasingly prevalent critiques of criminal law from progressives, there hardly is a consensus on the left in opposition to the carceral state. Many left-leaning academics and activists who may critique the criminal system writ large remain enthusiastic about criminal law in certain areas—often areas where defendants are imagined as powerful and victims as particularly vulnerable. In this article, we offer a novel theory for what animates the seemingly conflicted attitude among progressives toward criminal punishment—the hope that the criminal system can …

Constitutional Clash: Labor, Capital, And Democracy, Kate Andrias

Faculty Scholarship

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts — “labor’s” efforts for short — seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would …

Mothers With Disabilities In The Workplace Post-Pandemic & Post-Dobbs, Nicole Buonocore Porter

Oklahoma Law Review

No abstract provided.

Reflections On Corporate Governance At Work, Margaret Blair, Matthew Bodie, June Carbone, Scott Dewey, George S. Georgiev, Grant Hayden, Claire Hill, Brett Mcdonnell, Sanjukta Paul, Silvie Rohr, Natalya Shnitser, Aaron Sojourner, Alvin Velazquez

Articles

No abstract provided.

The Legal Framework For The Protection Of Victims Of The Worst Forms Of Child Labour In Agriculture In Ghana: A Human Rights Based Approach, Ruby Akua Aglagoh

Theses: Doctorates and Masters

Child labour is prevalent in Ghana, especially in the agriculture industry where children engage in work that is harmful to their health, morals, and safety. Such harmful work has been defined by the ILO Convention No. 182 on the Worst Forms of Child Labour, 1999 as constituting the worst forms of child labour. These children have human rights stated in the laws of Ghana but have become victims of human rights violations because they cannot access the protections provided for under the international conventions and national laws of Ghana.

Using doctrinal legal research, this thesis reviews the legal framework of …

(In)Coherence In Employment Contract Law: Response To Professors Arnow-Richman And J.H. Verkerke, Meredith R. Miller

Scholarly Works

No abstract provided.

Is A Ban On Non-Competes Supported By Empirical Evidence?, Sarah Oh Lam, Thomas Lenard, Scott Wallsten

Fordham Journal of Corporate & Financial Law

The U.S. Federal Trade Commission (FTC) has proposed a rule to declare virtually all non-compete agreements unfair methods of competition under Section 5 of the FTC Act and therefore, illegal. However, the empirical literature on non-compete agreements cited by the FTC in its Notice for Proposed Rulemaking (“NPRM”) shows mixed results on earnings, job creation, firm formation, entrepreneurship, training, investment, and firm value. Evidence in other current studies also does not support an economy-wide ban. The FTC concludes that the proposed rule would yield net benefits even though by its own admission it lacks the information necessary to conduct a …

The Public’S Companies, Andrew K. Jennings

Fordham Journal of Corporate & Financial Law

This Essay uses a series of survey studies to consider how public understandings of public and private companies map into urgent debates over the role of the corporation in American society. Does a social-media company, for example, owe it to its users to follow the free-speech principles embodied in the First Amendment? May corporate managers pursue environmental, social, and governance (“ESG”) policies that could reduce short-term or long-term profits? How should companies respond to political pushback against their approaches to free expression or ESG?

The studies’ results are consistent with understandings that both public and private companies have greater public …