Law Commons^™

Why France Needs To Collect Data On Racial Identity . . . In A French Way., David B. Oppenheimer

David B Oppenheimer

Will The Real "Che" Guevara Please Stand Up? Labor And Authoritarianism In Sandinista Nicaragua, Stephen Diamond

Stephen F. Diamond

This paper examines the impact of authoritarian left theory, in particular that of “Che” Guevara, on labor rights during the Sandinista’s Nicaraguan revolution. This is important because of the current revival of movements like that of Hugo Chavez in Venezuela that rely on similar approaches to labor and human rights issues as that of the original Sandinista movement. In addition, there is widespread interest today in “Che” Guevara, yet little is known or understood about his actual politics while in power during the early years of the Cuban revolution. In addition, there is increasing sympathy for such authoritarian approaches to …

Pragmatism Over Politics: Recent Trends In Lower Court Employment Discrimination Jurisprudence, Lee Reeves

Lee Reeves

Many scholars have argued that the judiciary’s decreasing receptivity to employment discrimination claims is attributable either entirely or predominantly to the fact that the federal bench has become more ideologically conservative in recent years. This Article seeks to dispute that hypothesis as incomplete at best, and to offer a competing theory. Specifically, I argue (i) that employment discrimination jurisprudence is properly viewed not as a holistic entity, but rather as a series of circuit-specific creations; and (ii) that each circuit’s employment discrimination jurisprudence is correlated with two factors, total workload per capita judge and employment discrimination filings per capita judge. …

Getting Under Your Skin--Literally: Rfid In The Employment Context, Marisa Anne Pagnattaro

marisa pagnattaro

This article explores the legal ramifications of the use of radio frequency identification chips (“RFID”) by employers. RFID is an automated data-capture technology that can be used to identify, track and store information contained on a tiny computer chip, which uses electromagnetic energy in the form of radio waves to communicate information. These chips can be implanted under an employee’s skin, worn in an employee’s clothing or in an identification badge. Part I presents a brief history of RFID, as well as novel and interesting uses in the workplace. This section also discusses security and safety concerns regarding the use …

Toward Real Workplace Equality: Nonsubordination And Title Vii Sex-Stereotyping Jurisprudence , Erin E. Goodsell

Erin E. Goodsell

This paper seeks to resolve a problem in federal anti-discrimination jurisprudence. The Supreme Court has held that plaintiffs may have a Title VII employment discrimination claim where they have been discriminated against based on an “impermissible sex stereotype,” but the lower federal courts, lacking a clear definition of what an “impermissible sex stereotype” may be, are inconsistent in their application of the sex-stereotyping doctrine. I argue that applying the feminist principle of nonsubordination, which examines whether legal rules or cultural practices serve to subordinate women to men and seeks to change those rules or practices that do, could help to …

The Inevitable Demise Of The Implied Employment Contract, Jonathan W. Fineman

Jonathan W. Fineman

The Inevitable Demise of the Implied Employment Contract By Jonathan Fineman Abstract This article examines the consequences of the courts’ decision in the early 1980s to apply implied contract doctrine to employment relationships. Although courts did not use the rhetoric of “norms” popular in academic discourse today, their actions were in fact an attempt to enforce workplace norms, specifically the voluntary system of job protection policies employers devised in order to increase worker loyalty and productivity. I explore a question not previously addressed in-depth in the literature: what happened when courts began giving job security practices the force of law? …

Some Reflections On Labor And Employment Ramifications Of Diocesan Bankruptcy Filings, David L. Gregory

David L. Gregory

Sexual abuse of children by Roman Catholic clergy is perhaps the greatest scandal in the history of the Catholic Church in the United States. On September 7, 2007, the San Diego, California diocese settled with 144 claimants for $198 million. In mid-July, the Los Angeles Archdiocese settled with 508 claimants for $660 million. No article in the burgeoning law review literature on the scandal and its aftermath has focused on the labor and employment ramifications of diocesan bankruptcy filings. After first presenting the situations in the five dioceses that have filed for bankruptcy, I discuss the case and canon law …

Reservists Are Like Pregnant Women: A Fertile Battleground For A Reinterpretation Of Userra, Brian Kanner

Brian Kanner

The article examines the Department of Labor’s (“DOL”) newly issued regulations of the Uniformed Services Employment and Reemployment Act of 1994—the act that guarantees workplace non-discrimination and reemployment rights to our military reservists. Under the regulations, reservists are given non-seniority rights only if the employer offers them to “similarly situated” non-military employees on a “comparable” non-military leave. Making comparisons to pregnant women subject to policies formed for a male-centric workplace, I argue that the assessment for determining a reservist’s non-seniority rights is inherently disingenuous: what employee is truly similarly situated to a reservist called to duty and what non-military leave …

Misguided Fairness? Regulating Arbitration By Statute: Empirical Evidence Of Declining Award Finality, Michael H. Leroy

Michael H LeRoy

The Federal Arbitration Act (FAA) created a national policy that promotes arbitration. Congress passed this law to end judicial hostility to arbitration. So far, no one has questioned this premise. My Article shows, however, that nineteenth century courts enforced arbitrator awards, even those that failed to conform to “technicalities and niceties.” Acting on the mistaken advice that judges excessively interfere with arbitration, Congress enacted a law that transfers oversight of arbitration from the judiciary to legislatures.

This change is affecting how court reviews arbitrator awards. I collected data in 426 federal and state court rulings in employment disputes from June …

Unintended Consequences: How Antidiscrimination Litigation Increases Group Bias In Employer-Defendants, Jessica Fink

Jessica Fink

In recent years, employees have turned with increasing frequency to the courts to redress alleged violations of their civil rights in the workplace, often bringing suits under laws such as Title VII of the Civil Rights Act of 1964. Indeed, employment discrimination claims consistently consume a substantial (and rising) portion of the federal court docket. In the four-plus decades since the passage of Title VII, however, the nature of workplace bias itself has changed, becoming more difficult to detect in many cases. Some employers, often with the help of counsel, have learned to finesse their workplace actions to avoid the …

Whither The Pickering Rights Of Federal Employees?, Paul Secunda

Paul M. Secunda

As a result of the Supreme Court's 1983 decision in Bush v. Lucas, federal employees are not permitted to bring Bivens constitutional tort claims directly to federal court to vindicate their First Amendment rights to free speech under Pickering v. Bd. of Education. Instead, the Bush Court found that Congress had established an effective, alternative statutory scheme for vindication of such claims under the Civil Service Reform Act of 1978 (CSRA of 1978). This places federal employees in a less favorable predicament than their state and local employee counterparts who are able to directly proceed to court on their First …

Explaining The Spread Of At-Will Employment As An Inter-Jurisdictional Race-To-The-Bottom In Employment Standards, Richard A. Bales

Richard A. Bales

The at-will employment rule often is attributed to Horace Gay Wood, who described the rule in an 1877 treatise. Over the next forty years, the rule was judicially adopted in most American states. How and why the rule spread, however, has been the subject of considerable academic debate.

This essay argues that the underindustrialized states first adopting the at-will rule likely did so as a means of attracting capital. In any event, and more importantly, this essay argues that once the first underindustrialized states adopted the rule, other underindustrialized states would have been compelled to adopt the rule to remain …

Reflections On The Technicolor Right To Association In American Labor And Employment Law, Paul M. Secunda

Paul M. Secunda

It is time to rethink how the United States enforces the right of association in the workplace. The proliferation of political associational rights, intimate association rights, and expressive association rights in the constitutional sphere over the last thirty years has made the scope of this fundamental civil liberty confusing and hard to enforce. Outside of the constitutional framework, which generally applies only to public employees, low union density and the lack of common law associational claims have made private-sector employees' associational rights vulnerable. The unfortunate consequence may be that American workers currently enjoy less associational freedoms than almost any other …

The Employment Termination Equity Act: Finding A Compromise Between Employment At-Will And Just Cause , Nicole B. Porter

Nicole B. Porter

Many scholars have criticized the harshness of the employment at-will presumption, whereby an employer can terminate an employee for good reason, bad reason, or no reason at all. Unlike other scholarship; however, this proposal adopts a novel approach to the problem of the at-will presumption. Instead of suggesting that the at-will presumption should be replaced with a just cause standard, this article suggests a compromise statute, which I call the Employment Termination Equity Act (ETEA). Under ETEA, employers would be free to terminate unproductive or poorly performing employees, without having the difficult burden of proving just cause. However, certain enumerated …

Fitting The Pension Protection Act Of 2006 Into The Defined Contribution Paradigm, Crystal L. Lyons

Crystal L. Lyons

No abstract provided.

Explaining The Spread Of At-Will Employment As An Inter-Jurisdictional Race-To-The-Bottom Of Employment Standards, Richard A. Bales

Richard A. Bales

The at-will employment rule is often attributed to Horace Gay Wood, who described the rule in an 1877 treatise. Over the next forty years, the rule was judicially adopted in most American states. How and why the rule spread, however, has been the subject of considerable academic debate.

This essay argues that the underindustrialized states first adopting the at-will rule likely did so as a means of attracting capital. In any event, and more importantly, this essay argues that once the first underindustrialized states adopted the rule, other underindustrialized states would have been compelled to adopt the rule to remain …

State Anti-Discrimination Statutes And Implied Preemption Of Common Law Torts: Valuing The Common Law, Jarod S. Gonzalez

Jarod S. Gonzalez

Many states have their own antidiscrimination statute that, like federal law, prohibits discrimination in employment because of prohibited characteristics such as race, sex, age, religion, national origin, and disability. In certain cases, a particular set of facts involving sexual, racial, or disability harassment could satisfy the required elements of a state common law tort and a state statutory antidiscrimination claim. It benefits the aggrieved plaintiff to pursue both a common law tort action and a state statutory discrimination action against the employer when the common law tort provides for greater remedies, as is sometimes the case. But when a common …

The Perils Of Marriage As Transcendent Ontology: National Pride At Work V. Governor Of Michigan, William B. Turner

William B Turner

National Pride at Work v. Governor of Michigan provides a unique opportunity to watch as courts struggle to define “marriage.” This is not a suit seeking recognition of same-sex marriages. It presents the question of whether an amendment to the Michigan state constitution prohibiting recognition of same-sex marriages or any “union” that is “similar” to marriage also prohibits public employers in the state from conferring benefits on the same-sex partners of their employees. The trial and appeals courts came to exactly opposite conclusions, and their respective positions nicely demarcate the options in what promises to be an ongoing debate in …

Reasonably Accommodating The Able Employee Who Is Disabled By Misperception: The Ada’S “Regarded As” Prong Gone Awry?, Selma Shelton

Selma Shelton

Even though the evil of race-based slavery was remedied, this did not mark the death of shame in America because subjugation of another minority persisted as individuals with disabilities remained without legal recourse. Congress recognized “discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services” and it enacted the American with Disabilities Act (ADA). This paper discusses a problem that continues to persist despite the enacting of the ADA - that is, victimization of individuals with disabilities because of strongly ingrained attitudes, …

Search And Seizure On Steroids: United States V. Comprehensive Drug Testing And Its Consequences For Private Information Stored On Commercial Electronic Databases, Aaron S. Lowenstein

Aaron S Lowenstein

This article critiques the Ninth Circuit’s recent decision in United States v. Comprehensive Drug Testing. This case received some attention because it stems from the investigation into the use of steroids in Major League Baseball. It should have received much more attention, however, because of its troubling expansion of the government’s authority to access our private digital information without a warrant.

Executing a search warrant for information stored on a computer database poses special problems. Because targets of government investigations can easily conceal incriminating digital evidence, investigators often must search an entire computer hard drive in order to effectively execute …

Due Process In Employment Arbitration: The State Of The Law And The Need For Self-Regulation, Martin H. Malin

Martin H. Malin

No abstract provided.

Interpreting The Americans With Disabilities Act: A Case Study In Pragmatic Judicial Reconstruction, Michael L. Selmi

Michael L Selmi

This article challenges the prevailing academic consensus regarding the Supreme Court’s interpretation of the Americans With Disabilities Act (“ADA”), and does so in the context of theories of statutory interpretation. Virtually all academic commentary has condemned the Court’s interpretations as constituting a “judicial backlash” against the disabled, given that the Court’s interpretations have significantly narrowed the scope of the statute. My analysis offers a counter narrative. I contend that although the Supreme Court’s interpretations have narrowed the statute’s scope, and have done so without regard to congressional intent, their decisions are largely consistent with congressional expectations and reigning social norms …

To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz

Steven L Schwarcz

In recent years, companies have been shifting much of their transactional legal work from outside law firms to in-house lawyers, and some large companies now staff transactions almost exclusively in-house. Although this transformation redefines the very nature of the business lawyer, scholars have largely ignored it. This article seeks to remedy that omission, using empirical evidence as well as economic theory to help explain why in-house lawyers are taking over, and whether they are likely to continue to take over, these functions and roles of outside lawyers. The findings are surprising, suggesting that in-house lawyers may now be performing as …

Webmail At Work: The Case For Protection Against Employer Monitoring , Marc A. Sherman

Marc Adam Sherman

This paper is about privacy in the workplace. Specifically, I address the issue of employer monitoring of employee email. The law allows employers to monitor their workers’ email – even when messages contain private information. However, although the law is clear with respect to employer-provided email, it is not yet defined as to webmail. That is – this paper shows that relevant statutes and court decisions generally have not yet addressed the privacy issues that arise when an employer monitors email sent by an employee via the employee’s personal web-based email account.

After revealing this webmail gap in the law, …

Happily Never After: When Final And Binding Arbitration Has No Fairy Tale Ending, Michael H. Leroy

Michael H LeRoy

We launched this empirical study 15 years after the Supreme Court decided Gilmer v. Interstate Johnson/Lane Corp., a key decision that enforced a mandatory arbitration agreement. Gilmer led to the widespread adoption of individual employment arbitration but provided courts no standards for reviewing these arbitration awards.

Until now, researchers have examined the fairness and legality of Gilmer agreements and other aspects of employment arbitration. Our timing is significant because employment arbitration has matured beyond the initial phase of pre-arbitration challenges to this forum. By now, a critical mass of individuals and their employers have been to arbitrations and appealed arbitrator …

Fuck, Christopher M. Fairman

Christopher M Fairman

No abstract provided.

"Avoiding Harm Otherwise": Reframing Women Employees' Responses To The Harms Of Sexual Harassment, Margaret Johnson

Margaret E Johnson

This article concerns the concepts of employee harm and harm avoidance within the liability framework for hostile work environment sexual harassment by a supervisor. Whether an employer is liable for supervisor sexual harassment depends in part on whether or not the employee avoids her harm or mitigates her damages resulting from the sexual harassment. Despite the law’s interest in employee’s harm avoidance, courts have failed to fully explore the vast array of harms resulting from sexual harassment and the variety of ways in which an employee avoids these multiple harms. This article reframes the legal discussion of an employee’s actions …

To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz

Steven L Schwarcz

In recent years, companies have been shifting much of their transactional legal work from outside law firms to in-house lawyers, and some large companies now staff transactions almost exclusively in-house. Although this transformation redefines the very nature of the business lawyer, scholars have largely ignored it. This article seeks to remedy that omission, using empirical evidence as well as economic theory to help explain why in-house lawyers are taking over, and whether they are likely to continue to take over, these functions and roles of outside lawyers. The findings are surprising, suggesting that in-house lawyers may now be performing as …

To Make Or To Buy: In-House Lawyering And Value Creation, Steven L. Schwarcz

Steven L Schwarcz

No abstract provided.

Common Sense About Common Claims, David G. Karro

David G. Karro

In Dukes v. Wal-Mart, Inc., 506 F.3d 1168 (9th Cir. 2007), the 9th Circuit affirmed an order certifying a nationwide class of 1.5 million women claiming sex discrimination by a single employer. The court held that class members are not entitled to notice that they are in the class until after the merits are decided, and that none has the right to refuse membership. It seemed to accept the idea that it could only certify the class if it “contemplated that all members of the class will be bound by the ultimate ruling on the merits,” Sosna v. Iowa, 419 …