Law Commons^™

International Union, U.A.W. V. Johnson Controls: The History Of Litigation Alliances And Mobilization To Challenge Fetal Protection Policies, Caroline Bettinger-Lopez, Susan P. Sturm

Faculty Scholarship

The Supreme Court's decision in Johnson Controls is the culmination of a long legal campaign by labor, women's rights, and workplace safety advocates to invalidate restrictions on women's employment based on pregnancy. This campaign powerfully demonstrates the use of amicus briefs as opportunities to link the efforts of groups with overlapping agendas and to shape the Supreme Court's understanding of the surrounding empirical, social and political context. But Johnson Controls also provides important lessons about the narrowing effects and fragility of litigation-centered mobilization. The case affirmed an important anti-discrimination principle but ironically left women (and men) with the right to …

The "Prudent Retiree Rule": What To Do When Retirement Security Is Impossible, Jeffrey N. Gordon

Faculty Scholarship

The starting question for public policy analysis in the retirement security area ought to be this: “Is retirement security possible?” My text is drawn from the classic trust case Harvard College v. Amory, decided in 1830, in which the Massachusetts Supreme Judicial Court announced the prudent investor rule by stating, “Do what you will, the capital is at hazard.” The modern understanding of that text is not that there are no “risk free” assets. After all, the United States government assures the timely payment of principal and interest on Treasury securities backstopped in turn by Treasury’s unlimited call on …

People As Resources: Recruitment And Reciprocity In The Freedom-Promoting Approach To Property, Jedediah S. Purdy

Faculty Scholarship

Theorists usually explain and evaluate property regimes either through the lens of economics or by conceptions of personhood. This Article argues that the two approaches are intertwined in a way that is usually overlooked. Property law both facilitates the efficient use and allocation of scarce resources and recognizes and protects aspects of personhood. It must do both, because human beings are both resources for one another and the persons whose moral importance the legal system seeks to protect. This Article explores how property law has addressed this paradox in the past and how it might in the future.

Two bodies …

The Architecture Of Inclusion: Interdisciplinary Insights On Pursuing Institutional Citizenship, Susan Sturm

Faculty Scholarship

Structural inequality has captured the attention of academics, policymakers, and activists. This structural reorientation is occurring at a time of judicial retrenchment and political backlash against affirmative action. These developments have placed in sharp relief the mismatch between structural diagnoses and the dominant legal frameworks for addressing inequality. Scholars, policymakers, and activists are faced with the pressing question of what to do now. They share a need for new frameworks and strategies, growing out of a better understanding of institutional and cultural change.

I am honored that the Harvard Journal of Law & Gender has used the publication of The …

Leo Strine's Third Way: Responding To Agency Capitalism, Ronald J. Gilson

Faculty Scholarship

Ten years ago, Tony Blair's "New Labour" government sought an agenda that replaced ideology with a pragmatic focus on both the creation of wealth and its distribution. Not surprisingly, part of this effort involved proposals to bridge the gap between capital and labor through refraining corporate governance. A "third way" as it was then styled, would walk a fine line between privileging markets and allocational efficiency at the cost of social justice on the one hand, and accepting less for everyone as long as the distribution was fair on the other. Motivated by changes in how we save for retirement …

The Effect Of Court-Ordered Hiring Quotas On The Composition And Quality Of Police, Justin Mccrary

Faculty Scholarship

Arguably the most aggressive affirmative action program ever implemented in the United States was a series of court-ordered racial hiring quotas imposed on municipal police departments. My best estimate of the effect of court-ordered affirmative action on work-force composition is a 14-percentage-point gain in the fraction African American among newly hired officers. Evidence on police performance is mixed. Despite substantial black-white test score differences on police department entrance examinations, city crime rates appear unaffected by litigation. However, litigation lowers slightly both arrests per crime and the fraction black among serious arrestees.