Law Commons^™

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Path-Dependent Deadlock: The Institutional Causes Of The Euro Crisis, Samuel Dahan Dr.

Samuel Dahan Dr.

@font-face { font-family: "CG Times"; }p.MsoNormal, li.MsoNormal, div.MsoNormal { margin: 0in 0in 0.0001pt; text-align: justify; text-indent: 0.25in; font-size: 12pt; font-family: "CG Times","serif"; }p.MsoFootnoteText, li.MsoFootnoteText, div.MsoFootnoteText { margin: 0in 0in 0.0001pt; text-align: justify; text-indent: 0.25in; font-size: 10pt; font-family: "CG Times","serif"; }span.MsoFootnoteReference { vertical-align: super; }span.FootnoteTextChar { font-family: "CG Times","serif"; }.MsoChpDefault { font-size: 10pt; }div.WordSection1 { page: WordSection1; } We argue that the characterization of the financial turmoil in the European Monetary Union as merely a sovereign debt crisis is inaccurate insofar as the deterioration of public finances represents the culmination of a process: legal and institutional flaws laid the ground for …

Conflicted Counselors: Retaliation Protections For Attorney-Whistleblowers In An Inconsistent Regulatory Regime, Jennifer M. Pacella

Jennifer M. Pacella, Esq.

Attorneys, especially in-house counsel, are subject to retaliation by employers in much the same way as traditional whistleblowers, often experiencing retaliation and loss of livelihood for reporting instances of wrongdoing about their clients. Although attorney-whistleblowing undoubtedly invokes ethical concerns, attorneys who “appear and practice” before the Securities and Exchange Commission (“SEC”) are required by federal law to act as internal whistleblowers under the Sarbanes-Oxley Act (“SOX”) and report evidence of material violations of the law within the organizations that they represent. An attorney’s failure to comply with these obligations will result in SEC-imposed civil penalties and disciplinary action. Recent federal …

Two Conflicting Filing Periods For A Constructive Discharge Claim: Which One Is A Better Measure?, Aditi Kumar

Aditi Kumar

Constructive discharge is a long-standing phenomenon. The doctrine emerged in the 1930s in the context of alleged unfair labor practices under the National Labor Relations Act (NLRA). Constructive discharge occurs when the working conditions are so intolerable that a reasonable employee feels that she no choice but to quit her job. The Supreme Court brought the discussion of constructive discharge to light in Pennsylvania State Police v. Suders[1] where it discussed this principle in a hostile work environment context. Over the years, there has been much debate over the time period when a constructive discharge claim should begin. Since …

Invisible Labor, Invisible Play: Online Gold Farming And The Boundary Between Jobs And Games, Julian Dibbell

Julian Dibbell

When does work become play, and play work? Courts have considered the question in a variety of economic contexts, from student athletes seeking recognition as employees to professional blackjack players seeking to be treated by casinos just like casual players. Here I apply the question to a relatively novel context: that of online gold farming, a gray-market industry in which wage-earning workers, largely based in China, are paid to play online fantasy games (MMOs) that reward them with virtual items their employers sell for profit to the same games’ casual players. Gold farming is clearly a job (and under the …

A European Solution To America’S Basketball Problem: Reforming Amateur Basketball In The United States, Jaimie K. Mcfarlin, Joshua Lee

Jaimie K. McFarlin

The system of amateur and collegiate basketball in America is flawed, as every year, thousands of young men and women pursue their basketball dreams under the shadow of a multi-million dollar, predatory business model. Integral to telling the history of the NCAA and AAU organizations are recruiting horror stories and other examples of young talents who were taken advantage of by unscrupulous actors, both of which continue today. The commercialization and professionalization of amateur basketball has fed an ecosystem of exploitation in which private actors and institutions capitalize on the American mantra of "amateurism." The European system of amateur athletics …

Profit Sharing: An Alternative Minimum Wage Model, Nicholas Parker

Nicholas Parker

No abstract provided.

Freedmen And Day Laborers: Why Enforcement Matters, Raja Raghunath

Raja Raghunath

As the one hundred and fiftieth anniversary of Emancipation approaches, there is a cautionary lesson for modern workers from the period that followed the abolition of chattel slavery. Reconstruction, after the Civil War, was the moment when the promise of universal liberty to work first became part of the American state’s covenant with its people. But this promise was quickly lost, as the rights that the federal government extended to the freed slaves – the freedmen – were contested and eventually nullified by vehement opposition in the working fields and cities of the South. In this sense, workers’ rights were …

Community Supported Agriculture And Community Labor: Constructing A New Model To Unite Volunteers And Employers, A. Bryan Endres, Rachel Armstrong

A. Bryan Endres

Community Supported Agriculture (CSA) is a farm philosophy and marketing strategy that creates a union between consumers and farmers. Extending beyond the traditional buyer-seller relationship, CSA farmers invite customers to participate in food production in a variety of scenarios the authors refer to as “community labor.” But community labor entails a serious paradox. Traditional employment law doctrine envisions autonomous competition between laborer and employer, and makes little room for these novel, community-based relationships. More importantly, rigid application of employment law structures undermines many of the values embedded in the CSA movement and may limit its continued viability and growth. Constructed …

Utilizing Credit Reports For Employment Purposes: Casting A Wider Net Into The Ocean Of Employment Practices Results In Unintended Yet Much Needed Outcomes, David D. Schein, James D. Phillips

David D. Schein

In our previous article, “Holding Credit Reporting Agencies Accountable: How the Financial Crisis May be Contributing to Improving Accuracy in Credit Reporting”[1] we reviewed the legal history of the Fair Credit Reporting Act (FCRA) and its amendments, and the Federal case law by circuit. We suggested that the ability of consumers to ensure the accuracy and security of their credit reports might lead to an expansion of the litigation surrounding accurate credit reporting. This article takes the discussion further by exploring the ever-expanding use of credit reports in the employment law arena. We review the state legislation limiting the use …

Stabilizing Low-Wage Work: Legal Remedies For Unpredictable Work Hours & Income Stability, Nantiya Ruan, Charlotte Alexander, Anna Haley-Lock

Nantiya Ruan

Low-wage, hourly-paid service workers are increasingly subject to employers’ “just-in-time” scheduling practices. In a just-in-time model, employers give workers little advance notice of their schedules, call workers in to work during non-scheduled times to meet unexpected customer demand, and send workers home early when business is slow. The federal Fair Labor Standards Act, the main guarantor of workers’ wage and hour rights, provides no remedy for the unpredictable work hours and income instability caused by employers’ last minute call-in and send-home practices. This Article examines two alternative sources of legal protection that have received little attention in the literature on …

The Family Responsibilities Convention Reconsidered: The Work-Family Intersection In International Law Thirty Years On, Lee Adams

Lee Adams

This year marks the thirtieth anniversary of the International Labour Organization’s (ILO) Workers with Family Responsibilities Convention, 1981, No. 156 coming into force. Family responsibilities in the context of paid work and its implications for gender equality have been the subject of international regulation most specifically in ILO 156, although it remains a marginalized convention. Since then, the interaction of work and family and the conflict between them have exploded as a subject of scholarly importance. This article examines ILO 156 in the context of chronological development of other major international legal instruments which address the intersection of work and …

Daddy Warriors: The Battle To Equalize Paternity Leave In The United States By Breaking Gender Stereotypes; A Fourteenth Amendment Equal Protection Analysis, Abraham Z. Melamed

Abraham Z Melamed

No abstract provided.

How To Create American Manufacturing Jobs, John D. Gleissner Esquire

John D Gleissner Esquire

No abstract provided.

Shining The Spotlight On Unpaid Law Student Workers, Susan Harthill

Susan Harthill

Shining the Spotlight on UNPAID LAW STUDENT Workers Susan Harthill Abstract Law students who ‘intern’ at for-profit law firms across the United States do a fair day’s work but do not always get a fair day’s pay. Unpaid student interns have long been a well-utilized labor source in the non-profit world, public agencies, and in certain for-profit sectors, such as entertainment and media. Indeed, some unpaid internships are mutually beneficial arrangements for the student and the employer; the student gets hands-on training in an industry that might be difficult to break into, has useful work experience on her resume, and …

Employment Law And Social Equality, Samuel R. Bagenstos

Samuel R Bagenstos

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this paper argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. Drawing on the author’s work elaborating the justification for employment discrimination law, this paper argues that individual employment law is …

Texas Appellate Courts Are Likely To Find Waivers Of Sovereign Immunity Of State Agencies In Anti-Retaliation Claims Under The State Applications Act, Tri T. Truong

Tri T Truong

The State of Texas, its agencies, and political subdivisions enjoy immunity from suit and liability unless the Texas Legislature (“Legislature”) expressly waives immunity. When an anti-retaliation claim is filed against a state agency, that agency does not have the same protection under Texas law to invoke sovereign immunity as does a municipality or other governmental subdivisions, even though the two governmental entities are governed by similar statutes—the State Applications Act (“Act”) and the Political Subdivisions Law (“PSL”), respectively. This paper focuses on four principal cases: Barfield, Fernandez, Norman, and Beltran. In 1995, the Barfield court decided that the election-of-remedies provision …

Texas Appellate Courts Are Likely To Find Waivers Of Sovereign Immunity Of State Agencies In Anti-Retaliation Claims Under The State Applications Act, Tri T. Truong

Tri T Truong

The State of Texas, its agencies, and political subdivisions enjoy immunity from suit and liability unless the Texas Legislature (“Legislature”) expressly waives immunity. When an anti-retaliation claim is filed against a state agency, that agency does not have the same protection under Texas law to invoke sovereign immunity as does a municipality or other governmental subdivisions, even though the two governmental entities are governed by similar statutes—the State Applications Act (“Act”) and the Political Subdivisions Law (“PSL”), respectively. This paper focuses on four principal cases: Barfield, Fernandez, Norman, and Beltran. In 1995, the Barfield court decided that the election-of-remedies provision …

Texas Appellate Courts Are Likely To Find Waivers Of Sovereign Immunity Of State Agencies In Anti-Retaliation Claims Under The State Applications Act, Tri T. Truong

Tri T Truong

The State of Texas, its agencies, and political subdivisions enjoy immunity from suit and liability unless the Texas Legislature (“Legislature”) expressly waives immunity. When an anti-retaliation claim is filed against a state agency, that agency does not have the same protection under Texas law to invoke sovereign immunity as does a municipality or other governmental subdivisions, even though the two governmental entities are governed by similar statutes—the State Applications Act (“Act”) and the Political Subdivisions Law (“PSL”), respectively. This paper focuses on four principal cases: Barfield, Fernandez, Norman, and Beltran. In 1995, the Barfield court decided that the election-of-remedies provision …

An Argument For A Vicarious Liability Standard For Agricultural Employers And Associations For The Acts Of Contractee Farm Labor Contractors: An Addition To The Migrant And Seasonal Agricultural Worker’S Protection Act Of 1983, Andrew Leibfried

Andrew Leibfried

Much of the federal law that has been passed to protect seasonal and migrant agricultural workers has been circumvented by Agricultural Employers and Associations who contract out their labor, and thus, many of their obligations to Farm Labor Contractors. Because these Farm Labor Contractors are considered independent contractors, seasonal and migrant agricultural laborers are required to enforce their rights under federal law against these contractors who can be either transient or judgment proof, while the Agricultural Employer or Association who hired the contractor escapes liability entirely. The focus of this paper is to present the case for a different legal …

How Statistical Sampling Can Solve The Conundrum Of Compensation Disclosures Under Dodd-Frank, Michael Ohlrogge

Michael Ohlrogge

One of the more controversial measures of the Dodd-Frank bill is its requirement that companies report the ratio of their CEO’s compensation to that of their median employee. Critics of this provision have claimed that for large companies with employees and subsidiaries throughout the world, compliance with this measure alone could cost millions of dollars a year, due to the difficulties in identifying the median employee. This paper demonstrates that the Securities and Exchange Commission, which is charged with implementing this provision, has the latitude to direct companies to calculate the figure using a statistical sampling procedure which would greatly …

Beyond The Water Cooler: Speech And The Workplace In An Era Of Social Media, Ann Mcginley, Ryan Mcginley-Stempel

Ann McGinley

Abstract

BEYOND THE WATER COOLER: SPEECH AND THE WORKPLACE IN AN ERA OF SOCIAL MEDIA

Ann C. McGinley & Ryan McGinley-Stempel

Few would dispute the proposition that free speech and association play an important role in the operation of a healthy democracy. Private workplaces, however, are an important exception. Even though as a nation we profess to honor free speech as one of our most important values, in the employment context, the law often willingly restricts employee speech in favor of the employer’s interests in efficient management. When civil society was clearly distinct from the workplace, this was less problematic. …

Vindication Over Arbitration: How Disparate Treatment Pattern Or Practice Claims Render Arbitration Agreements Unenforceable, Jeremy Greenberg

Jeremy Greenberg

The Supreme Court has consistently held that the Federal Arbitration Act embodies a federal policy favoring arbitration. Despite this policy, the Court also holds that arbitration agreements are unenforceable when individual plaintiffs cannot vindicate their statutory rights in arbitration. Additionally, the Court has emphasized that plaintiffs cannot arbitrate as a class unless the parties agreed to do so in the arbitration agreement. Certain claims, such as pattern or practice claims under Title VII, must be heard as a class. This Comment, therefore, argues that the inability to vindicate Title VII statutory rights in a class action renders arbitration clauses in …

Efficacy And United States Trafficking Victims Protection Act: The Need For Treble Damages In The Private Right Of Action, Marc S. Wiesner

Marc S. Wiesner

No abstract provided.

Of Testing And Tablespoons: Evaluating The Use Of Student Test Scores For Teacher Assessment, Daniel Straw

Daniel Straw

This note argues that the use of student test scores as a significant part of teacher evaluations has no rational basis in law, and therefore the government should instead focus on performance-based assessments and take steps to elevate the status of teaching as a profession.

Reasonable Men, Ann Mcginley

Ann McGinley

Abstract

REASONABLE MEN

Ann C. McGinley

After the Supreme Court recognized sexual harassment as a form of sex discrimination under Title VII in Meritor Savings Bank v. Vinson, lower courts used the reasonable person standard to measure whether the behavior was sufficiently severe or pervasive to constitute a hostile working environment. Cultural and radical feminists objected to the reasonable person measure, and many supported a reasonable woman standard, which the Ninth Circuit adopted in Ellison v. Brady. Because of its tendency to essentialize how women would react, many feminists soon abandoned their support for the standard. A number of circuits, …

Reasonable Men, Ann Mcginley

Ann McGinley

Abstract

REASONABLE MEN

Ann C. McGinley

After the Supreme Court recognized sexual harassment as a form of sex discrimination under Title VII in Meritor Savings Bank v. Vinson, lower courts used the reasonable person standard to measure whether the behavior was sufficiently severe or pervasive to constitute a hostile working environment. Cultural and radical feminists objected to the reasonable person measure, and many supported a reasonable woman standard, which the Ninth Circuit adopted in Ellison v. Brady. Because of its tendency to essentialize how women would react, many feminists soon abandoned their support for the standard. A number of circuits, …

Parental Leave: Comparison Of International Policies To The United States Policy And A Proposal For Change, Jennifer J. Montalvo

Jennifer J. Montalvo

The United States is far behind many other countries in providing parental leave, with no federal legislation that provides wage-replacement to parents seeking to take leave immediately before and after childbirth. In order to explain the variations of parental leave provided globally, this article discusses federal and state legislation in the United States, international organizations’ conventions and directives, and individual countries’ policies. The article argues that paid parental leave has many benefits—benefits that the United States should take into account when considering reform of its current law. Drawing on international and state-level models, the article proposes federal policy reform in …

The New Civil Rights: The “Currently Employed” Requirement, Disparate Impact, And New Legislation To Protect Unemployed Workers And Job-Seekers, Jennifer Ryan

Jennifer Ryan

Abstract

The New Civil Rights: The “Currently Employed” Requirement, Disparate Impact, and New Legislation to Protect Unemployed Workers and Job-Seekers

By Jennifer Jolly-Ryan

Countless people struggle to find a job in a competitive job market, despite good qualifications. Although the news media reports that job numbers are improving, the problems of unemployment particularly loom for people of color, older workers, and people with disabilities. They are often unemployed longer than other workers and job-seekers and suffer the disparate impact of job ads that require “current employment” as a prerequisite to getting hired. The harsh reality is that the longer a …

Where You Stand Depends On Where You Sit: Bureaucratic Incorporation Of Immigrants In Federal Workplace Agencies, Ming H. Chen

Ming H Chen

Abstract. This article integrates legal scholarship on immigrant workers with social science theory about the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants’ rights can be protected when workplace agencies integrate immigrants into their law enforcement activities, in accordance with their professional ethos and without regard to personal politics. Building on the concept of bureaucratic incorporation, I argue that regulatory agencies will resist contractions of workers’ rights when their staff’s commitments as civil servants and lawyers clash with judicial interpretations of immigrants’ rights. The implication is that strongly pro-immigrant politics are not necessary for …