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Full-Text Articles in Law
Few Thoughts About Scalia's Dissenting Opinion In Rutan V. Republican Party Of Illinois And His View Of The Public Workplace, Rafael Gely
Faculty Publications
I first became familiar with the U.S. Supreme Court decision in Rutan v. Republican Party of Illinois, when I began teaching employment law a few years after the decision was issued. Having spent six years in Illinois while attending law school and graduate school, and returning to teach at Chicago-Kent College Law, the case was of particular interest to me, as the names and location of the case all seemed so familiar. I found the dissent by Justice Antonin Scalia particularly interesting in that it raised a number of fascinating issues and made various assertions that seemed to make sense. …
In Defense Of Mcdonnell Douglas: The Domination Of Title Vii By The At-Will Employment Doctrine, Chuck Henson
In Defense Of Mcdonnell Douglas: The Domination Of Title Vii By The At-Will Employment Doctrine, Chuck Henson
Faculty Publications
The purpose of this Article is to describe the actual relationship between the Doctrine and Title VII as implemented in the Court's disparate treatment decisions. Title VII and the Doctrine are not separate forces warring with each other. The at-will employment doctrine guided the Court's Title VII disparate treatment jurisprudence, giving the maximum possible latitude to employers because that was the Eighty-eighth Congress's intent.
Employment Arbitration At The Crossroads: An Assessment And Call For Action, Stephen L. Hayford, Jamie Darin Prenkert, Anjanette H. Raymond
Employment Arbitration At The Crossroads: An Assessment And Call For Action, Stephen L. Hayford, Jamie Darin Prenkert, Anjanette H. Raymond
Journal of Dispute Resolution
Arbitration agreements must be on equal footing with all types of contracts. This stark reality demands that the various stakeholders in the arbitration community converge in the interest of designing and institutionalizing arbitration mechanics and processes that, as a start, exceed the minimum requirements to avoid arguments of substantive unconscionability and, more broadly, provide the fair, just, and accountable alternative dispute resolution system the FAA and the U.S. Supreme Court have indicated it can be. This paper seeks to guide this next stage of the debate by first reviewing the doctrinal developments over the past thirty years that led to …
Before Wisconsin And Ohio: The Quiet Success Of Card-Check Organizing In The Public Sector, Rafael Gely, Timothy D. Chandler
Before Wisconsin And Ohio: The Quiet Success Of Card-Check Organizing In The Public Sector, Rafael Gely, Timothy D. Chandler
Faculty Publications
Card-check laws, which have been unsuccessfully pursued by private-sector unions, mandate that employers recognize the union as the representative of employees on the basis of signed authorization cards without reliance on a representation election. Card check authorization benefits unions because it short circuits the usual organizing process by eliminating the union's need to further prove majority support in a secret ballot election.' But by doing so, it imposes costs on employers by restricting their efforts to erode union support through aggressive campaign tactics. Our paper seeks to better understand the development of these laws and their effects, and in that …
Organizing Principles: The Significance Of Card-Checks Laws, Rafael Gely, Timothy D. Chandler
Organizing Principles: The Significance Of Card-Checks Laws, Rafael Gely, Timothy D. Chandler
Faculty Publications
The use of “card checks” as a method of union organizing has recently garnered a lot of attention, much of it surrounding the proposed Employee Free Choice Act. If passed, this legislation would amend the National Labor Relations Act by requiring employers to recognize a union when the employer is presented with evidence of majority support for union recognition via union authorization cards. Although the proposed bill has had difficulty gaining traction in the U.S. Congress, several states have recently passed similar legislation covering state and local public employees. In this article, we compare card-check organizing by public sector employees …
Card Check Recognition: New House Rules For Union Organizing?, Rafael Gely, Timothy D. Chandler
Card Check Recognition: New House Rules For Union Organizing?, Rafael Gely, Timothy D. Chandler
Faculty Publications
A significant policy debate has been occurring regarding union organizing methods in the United States. This debate focuses on the appropriateness of granting union recognition based on majority support as demonstrated by union authorization card signatures, also known as “card checking.” Critics describe the practice as anathema to basic democratic principles and accuse unions of wanting to deal from the bottom of the deck to secure undeserved representation of employees. Proponents of card check recognition argue that reliance on National Labor Relations Board (“NLRB”) organizing procedures fails to protect employees' rights to organize, and forces unions to compete against a …
Supreme Court's 2002 Term Employment Law Cases: Is This Justice Scalia's Court?, Rafael Gely
Supreme Court's 2002 Term Employment Law Cases: Is This Justice Scalia's Court?, Rafael Gely
Faculty Publications
In a recent article,' Erwin Chemerinsky argues that the Supreme Court's constitutional law decisions of the 2002 Term "cannot be explained by any overarching theory or underlying set of interpretative principles." Instead, he argues, "constitutional law is all about value choices made by the Justices." Professor Chemerinsky also argues that given the current composition of the Court, "it is the value choices of the middle" - Justice O'Connor and Justice Kennedy - that matter the most. Professor Chemerinsky ends his article with the assertion that "[f]or better or worse, this really is the O'Connor Court." In reviewing the cases decided …
Supreme Court Employment Law Cases 2001-02 Term, Rafael Gely
Supreme Court Employment Law Cases 2001-02 Term, Rafael Gely
Faculty Publications
I set two simple objectives for the article. First, the article will summarize each of the cases. My intent is to provide those unfamiliar with the cases a brief review of the facts and a summary of the Court's reasoning. Parts II through VI provide this discussion, grouping the cases by subject area. Second, in Part VII, the article provides a "big picture" analysis of the various cases. My intent is to identify trends, issues, interesting aspects and features of the Court's term. My objective is to aid in our understanding of the patterns that might affect the Court's treatment …
Striker Replacements: A Law, Economics, And Negotiations Approach, Rafael Gely, Leonard Bierman
Striker Replacements: A Law, Economics, And Negotiations Approach, Rafael Gely, Leonard Bierman
Faculty Publications
In this article, we directly attack Professors Wachter and Cohen's assertion regarding the economic efficiency of the Mackay doctrine. Applying internal and external labor market analysis, we argue that the Mackay doctrine is economically inefficient because it allows employers to behave “opportunistically” with respect to employees that have made “firm-specific” investments in their employing firms. To remedy this problem we propose a new “negotiations approach,” the components of which are: (1) the statutory overruling of Mackay, and (2) the concomitant amendment of the NLRA to make the striker replacement issue a “mandatory” subject of collective bargaining.
The North American Agreement On Labor Cooperation: A New Frontier In North American Labor Relations, Rafael Gely, Leonard Bierman
The North American Agreement On Labor Cooperation: A New Frontier In North American Labor Relations, Rafael Gely, Leonard Bierman
Faculty Publications
During the debate leading to the passage of the North American Free Trade Agreement (“NAFTA”), a great deal of concern focused on the effect that a trade agreement such as the NAFTA might have on workers' rights. As a condition for the ratification of the NAFTA, Congress provided that the treaty would not “enter into force until the three countries enact their own national agreement on labor cooperation.” In response to this concern, the three signatory countries negotiated the North American Agreement on Labor Cooperation (“NAALC” or “Labor Agreement”). The NAALC establishes a formal and elaborate procedure to settle complaints …