Law Commons^™

The Progressives: Racism And Public Law, Herbert J. Hovenkamp

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American Progressivism inaugurated the beginning of the end of American scientific racism. Its critics have been vocal, however. Progressives have been charged with promotion of eugenics, and thus with mainstreaming practices such as compulsory housing segregation, sterilization of those deemed unfit, and exclusion of immigrants on racial grounds. But if the Progressives were such racists, why is it that since the 1930s Afro-Americans and other people of color have consistently supported self-proclaimed progressive political candidates, and typically by very wide margins?

When examining the Progressives on race, it is critical to distinguish the views that they inherited from those that …

The Ncaa And The Rule Of Reason, Herbert J. Hovenkamp

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This brief essay considers the use of antitrust’s rule of reason in assessing challenges to rule making by the NCAA. In particular, it looks at the O’Bannon case, which involved challenges to NCAA rules limiting the compensation of student athletes under the NCAA rubric that protects the “amateur” status of collegiate athletes. Within that rubric, the Ninth Circuit got the right answer.

That outcome leads to a broader question, however: should the NCAA’s long held goal, frequently supported by the courts, of preserving athletic amateurism be jettisoned? Given the dual role that colleges play, that is a complex question, raising …

The Afscme – State Of Illinois Negotiations: Traveling In Uncharted Waters, Martin Malin

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No abstract provided.

Dependent Contractors' In The Gig Economy: A Comparative Approach, Miriam A. Cherry, Antonio Aloisi

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Lawsuits around the misclassification of workers in the on-demand economy have ballooned in the United States in recent years. That is because employee status is the gateway to many substantive legal rights. Inresponse, some commentators have proposed an in-between hybrid category just for for the gig economy. However, such an intermediate category is not new. In fact, it has existed in many countries for decades, producing successful results in some, and misadventure in others. We use a comparative approach to analyze the experiences of Canada, Italy, and Spain with the intermediate category. In Italy, the quasi-subordinate category created an opportunity …

The Next Iteration Of Progressive Corporate Law, Matthew T. Bodie

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A wave of progressive corporate law scholarship in the late 1980s and early 1990s reimagined corporate law from the perspective of employees, consumers, and other stakeholders left behind by shareholder primacy. Almost thirty years later, it is time to revisit this literature and consider what progressive corporate law should be in the 21st Century. This essay argues for three changes: (1) a move to the theory of the firm as the underlying economic literature; (2) a focus on employees, rather than stakeholders more generally, and (3) an effort to change statutory and structural aspects of corporate law, such as board …

Workplace Freakonomics, Matthew T. Bodie

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Data analytics has revolutionized our economy, and employment is no exception. Sometimes called people analytics or HR analytics, the study of worker behavior and activity now includes the collection of massive amounts of data that is then crunched by algorithms looking for both expected and unexpected patterns. This work is akin to the "freakonomics" approach, which asks unusual questions and is prepared to find answers that may upset conventional wisdom. This paper explores the possibility of a "workplace freakonomics" approach to using big data in the workplace, and considers the legal and ethical ramifications for wide-ranging explorations of employee data.

Privacy, Poverty, And Big Data: A Matrix Of Vulnerabilities For Poor Americans, Mary Madden, Michele E. Gilman, Karen Levy, Alice Marwick

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This Article examines the matrix of vulnerabilities that low-income people face as a result of the collection and aggregation of big data and the application of predictive analytics. On one hand, big data systems could reverse growing economic inequality by expanding access to opportunities for low-income people. On the other hand, big data could widen economic gaps by making it possible to prey on low-income people or to exclude them from opportunities due to biases entrenched in algorithmic decision-making tools. New kinds of “networked privacy” harms, in which users are simultaneously held liable for their own behavior and the actions …

The Triangle Of Law And The Role Of Evidence In Class Action Litigation, Jonah B. Gelbach

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In Tyson Foods v. Bouaphakeo, a "donning and doffing" case brought under Iowa state law incorporating the Fair Labor Standards Act's overtime pay provisions, the petitioners asked the Supreme Court to reject the use of statistical evidence in Rule 23(b)(3) class certification. To its great credit, the Court refused. In its majority opinion, the Court cited both the Federal Rules of Evidence and federal common law interpreting the FLSA. In this paper, I take a moderately deep dive into the facts of the case, and the three opinions penned by Justice Kennedy (for the Court), Chief Justice Roberts (in …

The Best Way Out Is Always Through: Changing The Employment At-Will Default To Protect Personal Autonomy, Matthew T. Bodie

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Employment at-will is the default rule of termination for the vast majority of American employment relationships. The rule creates a presumption—a strong one—that the contract for employment allows either party to terminate the contract at any point in time. Since its inception, this bright line rule has given way to carefully curated exceptions, primarily to protect against discrimination and retaliation. This Article proposes that state courts create a new exception to the at-will rule—or, perhaps more accurately, acknowledge an intricacy within the existing default. The personal-autonomy presumption would modify at-will to make clear that employers will not take any action …

Are Uber And Transportation Network Companies The Future Of Transportation (Law) And Employment (Law)?, Miriam A. Cherry

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Transportation network companies (“TNCs”) such as Uber and Lyft manage ridesharing platforms that have increased efficiency and convenience for many passengers. These platforms, however, have also opened the door to many legal and regulatory issues pertaining to their business practices, employment structures, and transportation law and policy. This article provides a perspective on the economic, social, technical, and political aspects of TNCs in two steps, focusing on transportation and employment. First, it examines the future of TNCs in transportation, noting that TNCs could do more in terms of environmentalism to live up to the promise of the “sharing” economy. Second, …

People Analytics And Invisible Labor, Miriam A. Cherry

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This article explores two trends in labor and employment law: people analytics and invisible labor. People analytics includes the practice of employers using quantitative data to make objective decisions regarding employees. Invisible labor includes work that is unrecognized because it involves emotional work, or that is hidden due to the intermediation of technology. The article then discusses the paradox of the two trends. As people analytics relies on data for decision-making, how can employers use data analytics if there are increasingly invisible components to work? The article considers solutions: should people analytics include components of hidden labor, explicitly recognize and …

Employment As Fiduciary Relationship, Matthew T. Bodie

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Under traditional agency law doctrine, employees are agents of their employers and owe an agent’s concomitant fiduciary duties. Employers, in turn, are merely principals and have no corresponding fiduciary duties. A new wave of thinking has unsettled this approach by concluding that only high-level employees have fiduciary responsibilities to their employers. Taking this controversy as a starting point, this Article reconceives the employment relationship as a mutual fiduciary relationship in which both employers and employees are fiduciaries of one another. Even though current law does not consider employers to be fiduciaries of their employees, employers have long had significant statutory …

Lessons From The Dramatists Guild For The Platform Economy, Matthew T. Bodie

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Are platform workers part of a firm or are they working as individual businesses? Are they providing their labor as part of a team, or do they hold on to individual capital throughout their transactions? This essay explores the question of employee versus independent contract through the specific examples of dramatists and screenwriters. Dramatists have chosen to conduct their work as separate artists; they maintain copyright over their work, and they retain control over its use. Screenwriters, on the other hand, work as part of a team; they hand over their copyright to the production company and cede control over …

The Sharing Economy And The Edges Of Contract Law: Comparing U.S. And U.K. Approaches, Miriam A. Cherry

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Technology and the rise of the on-demand or sharing economy have created new and diverse structures for how businesses operate and how work is conducted. Some of these matters are intermediated by contract, but in other situations, contract law may be unhelpful. For example, contract law does little to resolve worker classification problems on new platforms, such as ridesharing applications. Other forms of online work create even more complex problems, such as when work is disguised as an innocuous task like entering a code or answering a question, or when work is gamified and hidden as a leisure activity. Other …