Labor and Employment Law Commons^™

Berle X: Berle And His World: An Homage To William W. Bratton, Charles R. T. O'Kelley

Seattle University Law Review

An introduction to the Berle X symposium, honoring William W. (Bill) Bratton.

Technological And Institutional Crossroads: The Life And Times Of Adolf A. Berle Jr., Bernard C. Beaudreau

Seattle University Law Review

In this paper, I examine the life and times of Adolf A. Berle Jr., perhaps the most influential scholar in the field of corporate governance. Specifically, I examine his contribution in light of the technological and institutional changes that occurred in the late nineteenth century—changes that were germane to his thinking and understanding of corporate governance. I argue that, despite his perspicacity, he failed to appreciate the changing role of corporate officers—that is, from that of fiduciary agent to that of visionary, founder, and essential element in corporate success. Put differently, in the early twentieth century, the key asset in …

Democracy In America At Work: The History Of Labor’S Vote In Corporate Governance, Ewan Mcgaughey

Seattle University Law Review

Can there be democracy in America at work? The historical division between democracy in politics and hierarchy in the economy is under strain. Hierarchical interests in the economy are shifting their model of power into politics, and yet a commitment to revive the law is resurgent. Central examples are the proposed Accountable Capitalism Act, Reward Work Act, Workplace Democracy Acts, and Employees’ Pension Security Acts. They would create a right for employees to elect 40% of directors on $1 billion company boards, a right for employees to elect one-third of directors on other listed company boards and require one-half employee …

“All Lawyers Are Somewhat Suspect”: Adolf A. Berle And The Modern Legal Profession, Harwell Wells

Seattle University Law Review

Adolf A. Berle was perhaps the preeminent scholar of the modern corporation. He was also an occasional scholar of the modern legal profession. This Article surveys his writings on the legal profession from the 1930s to the 1960s, from the sharp criticisms he leveled at lawyers, particularly corporate lawyers, during the Great Depression, to his sunnier account of the lawyer’s role in the postwar era. I argue that Berle’s views were shaped both by the reformist tradition he inherited from Louis Brandeis and his writings on the corporation, which left him convinced that the fate of the legal profession would …

Can God Create A Rock So Heavy That He Cannot Lift It?: Outlawing Pensions Under State Constitutions, Chad J. Pomeroy

Faculty Articles

Public pensions are a problem. More than twenty-seven million people participate in state and local government pension plans. And those plans are in the hole trillions of dollars. This means that state and local governments are going to have to raise additional trillions in taxes (or shift those trillions away from schools, police, firemen, or other spending targets) to satisfy these obligations.

What can be done about such a large, seemingly intractable problem? A number of states have installed specific pension funding requirements within their constitutions. Most state constitutions contain some kind of balanced budget requirement, and a number of …

A New Standard For Governance: Reflections On Worker Representation In The United States, Julian Constain

Fordham Journal of Corporate & Financial Law

The contemporary state of corporate law in the United States is one that is skewed toward the archaic principle of shareholder primacy. This narrow conception of corporate purpose has resulted in governance mechanisms that tend to overlook the many stakeholders that are affected by, and, in turn, affect the bottom line of modern corporations. In the wake of the recently proposed Accountable Capitalism Act, this Note investigates the viability of adopting a system of mandated worker board representation—codetermination—in the United States. The Note employs a comparative analysis of the German and Swedish experiences with codetermination, and then evaluates the policy, …

Private Ordering And Improving Information Flow To The Board Of Directors: The Duty To Inform Bylaw, Jennifer O'Hare

Faculty Publications

It seems that almost every day there is another report of a corporate scandal at a public company. Whether the scandal involves sexual harassment by senior management or widespread illegal conduct by employees, the first question asked by investors and the media is usually, “Where was the board?” And the board’s response is almost always, “We didn’t know.” Directors of public companies rely on officers to provide the information the board needs to manage the corporation, but, strangely enough, officers may not even be legally required to provide information to the board. The Delaware General Corporation Law is silent on …

Labor Interests And Corporate Power, Matthew T. Bodie

All Faculty Scholarship

Labor unions exert significant power through collective bargaining, pension fund investing, and political advocacy. But in each of these areas, unions face inherent structural limitations that severely constrain these powers. Workers need participation rights in corporate governance to overcome the multiplicity of forces arrayed against them. And rather than obviating the need for unions, worker corporate power would facilitate a different kind of labor representation — a transition to labor power that advocates for occupational interests and forms coalitions across the shifting political interests of different worker groups.

A Global System Of Work, A Global System Of Regulation?: Crowdwork And Conflicts Of Law, Miriam A. Cherry

All Faculty Scholarship

On-demand platforms are changing and reshaping our conceptions of both the firm and the work relationship in far-reaching and critical ways, allowing companies to hire workers and to seek customers across national boundaries. Confronted with low pay, wage theft, and other problematic working conditions, gig workers around the world have turned to the courts, attempting to invoke the protections of traditional labor and employment law. While some commentators believe existing forms of labor and employment regulations can stretch to cover on-demand work, others have called for new legal initiatives specifically crafted for online platforms. The goal of this paper is …

Worker Participation, Sustainability, And The Puzzle Of The Volkswagen Emissions Scandal, Matthew T. Bodie

All Faculty Scholarship

In September 2015, Volkswagen's "clean diesel" technology was exposed as a sham. Not only were the company's vehicles discharging dangerously high levels of nitrogen oxide, but VW had intentionally rigged its emissions systems to cheat on environmental tests. In the wake of resignations and criminal investigations, the company's governance system came under justifiable attack. Were VW's famously worker-friendly governance policies to blame? This Chapter examines the root causes of the emissions scandal and concludes that VW's governance culture suffered from dictatorial leadership as well as a cozy relationship between management and labor leaders. This culture of complacency led to a …

The Compliance Process, Veronica Root Martinez

Journal Articles

Even as regulators and prosecutors proclaim the importance of effective compliance programs, failures persist. Organizations fail to ensure that they and their agents comply with legal and regulatory requirements, industry practices, and their own internal policies and norms. From the companies that provide our news, to the financial institutions that serve as our bankers, to the corporations that make our cars, compliance programs fail to prevent misconduct each and every day. The causes of these compliance failures are multifaceted and include general enforcement deficiencies, difficulties associated with overseeing compliance programs within complex organizations, and failures to establish a culture of …

Trade Openness And Antitrust Law, Anu Bradford, Adam S. Chilton

Faculty Scholarship

Openness to international trade and adoption of antitrust laws can both curb anti-competitive behavior. But scholars have long debated the relationship between the two. Some argue that greater trade openness makes antitrust unnecessary, while others contend that antitrust laws are still needed to realize the benefits of trade liberalization. Data limitations have made this debate largely theoretical to date. We study the relationship between trade and antitrust empirically using new data on antitrust laws and enforcement activities. We find that trade openness and stringency of antitrust laws are positively correlated from 1950 to 2010 overall, but the positive correlation disappears …

Employees As Regulators: The New Private Ordering In High Technology Companies, Jennifer S. Fan

Articles

There is mounting public concern over the influence that high technology companies have in our society. In the past, these companies were lauded for their innovations, but now as one scandal after another has plagued them, from being a conduit in influencing elections (think Cambridge Analytica) to the development of weaponized artificial intelligence, to their own moment of reckoning with the #MeToo movement, these same companies are under scrutiny. Leaders in high technology companies created their own sets of norms through private ordering. Their work was largely unfettered by regulators, with the exception of the Securities and Exchange Commission’s oversight …

Dads Are Parents, Too: Why Amending The Pregnancy Discrimination Act Is Necessary For Courts To Determine If A Parental Leave Policy Violates Title Vii, Krista Gay

Brooklyn Journal of Corporate, Financial & Commercial Law

To attract millennials desiring a work-life balance, large companies have begun to offer new parent leave to both male and female employees and commonly offer longer leave to women than men. Although a company may offer pregnancy disability leave to women without offering similar leave to men, if the company classifies the leave as parental bonding leave, it must be offered equally. If it is not, as highlighted by recent lawsuits against JP Morgan and Estée Lauder, a Title VII claim can arise. Historically, courts have had difficulty deciding if such a policy does in fact violate Title VII, because …

Female Entrepreneurs And Equity Crowdfunding In The Us: Receiving Less When Asking For More, Seth C. Oranburg, Mark Geiger

Law Faculty Scholarship

In this paper, we explore the relationship between gender and funding raised through equity crowdfunding. Using data collected from the population of US equity crowdfunding campaigns, we find that campaigns receive significantly less funding when the primary signatory is female. Furthermore, we explore interactions between gender and a campaign's funding target. The results suggest that campaigns raise significantly less funding, as the target amount increases, when the primary signatory is female. These results are the first to suggest a relationship between gender and funding among the population of US equity crowdfunding campaigns. Implications and future directions are discussed.

Franchise Regulation For The Fissured Economy, Andrew Elmore

Faculty Scholarship

Franchise stores employ nearly nine million people in the United States. Many franchisors, which own trademarks that they license to franchisees, are among the largest, most sophisticated corporations in the United States. Yet franchise store employees are often paid below the minimum wage and frequently report unsafe workplaces and workplace discrimination.

The thesis of this Article is that widespread employment law noncompliance in franchise stores is symptomatic of the failure of employment law to recognize the measures that franchisors use to protect their brand in franchise stores. Franchisors often develop intensive relationships with franchisees and franchise store employees as representatives …

Overtime Overruled: Why The New Department Of Labor Overtime Regulations Should Not Go Into Effect, Morgan Westhues

The Business, Entrepreneurship & Tax Law Review

The United States Department of Labor recently revised its overtime regulations for white collar workers to keep up with the changing economy and inflation. While the salary level for who can receive overtime pay needs to be elevated, the proposed elevation to the salary level under the Obama Administration is too drastic. The proposed overtime regulations essentially double the current salary level for overtime eligibility. This drastic increase is already having negative effects on employees, even though it has not yet gone into effect. To prepare for the new regulations to take effect, employers have begun to find ways around …

The Final Rule: A Call For Congressional Action To Return The Flsa And The Middle Class To Its Former Glory, Ashley Singrossi

University of Miami Business Law Review

2017 was full of change in America. But not for the middle class. The middle class remained stagnant, if not shrinking—as it has been for decades. Many scholars and economists theorize why the class that is the backbone of America—that once flourished as the beacon of hope for hard–working people around the world—has steadily declined over the past few decades. The answer lies in labor regulation. Federal labor regulations helped build America’s robust middle class. But those regulations are outdated and ineffective. If we want to see the middle class restored to its prosperity, and stop it from slowly slipping …

Whistling In The Wind: Why Federal Whistleblower Protections Fall Short Of Their Corporate Governance Goals, Meera Khan

University of Miami Business Law Review

Teetering on the line between hero and villain, whistleblowers have a remarkably unusual role in contemporary American society. Those who blow the whistle on public sector activities, like Edward Snowden and the Watergate Scandal’s “Deep Throat”, are often vilified in history as treasonous and unprincipled rogues. In the private sector, however, whistleblowers are seen as moral compasses for corporate behavior, and are even afforded federal protections for speaking out against internal malfeasance. The piecemeal evolution of whistleblower legislation including the Sarbanes–Oxley Act of 2002 and the Dodd–Frank Wall Street Reform and Consumer Protection Act of 2010 created regulatory and enforcement …

Op-Ed: California’S Most Powerful Voice On Wall Street? Its Pensions, David H. Webber

Shorter Faculty Works

The fight over public pensions in California is almost exclusively described as a dispute between people worried about tax hikes and public servants wanting to get paid what they were promised. But this is only part of the pension story — one focused on the “liability” side of the balance sheet.

What Would We Do Without Them: Whistleblowers In The Era Of Sarbanes-Oxley And Dodd-Frank, Sean Griffith, Jane A. Norberg, Ian Engoron, Alice Brightsky, Tracey Mcneil, Jennifer M. Pacella, Judith Weinstock, Jason Zuckerman

Fordham Journal of Corporate & Financial Law

No abstract provided.

Clear Statement Rules And The Integrity Of Labor Arbitration, Stephen Ross, Roy Eisenhardt

Arbitration Law Review (2009 - Present)

Under the common law, employment contracts are submitted to civil courts to resolve disputes over interpretation, breach, and remedies. As an alternative, parties in collective bargaining agreements, can agree to dispute resolution by an independent arbitrator, whose decision is reviewed deferentially by judges. Where employees or members of an association are governed by its internal rules, in contrast, they often agree contractually to submit internal disputes to an association officer or committee. In this circumstance, the common law governing private associations affords judicial review that is more limited than a civil dispute, but more searching than is the case for …

The Cambridge Handbook Of Social Enterprise Law, Lloyd Histoshi Mayer

Books

Book Chapters

Lloyd Hitoshi Mayer, Creating a Tax Space for Social Enterprise, in The Cambridge Handbook of Social Enterprise Law 157 (Benjamin Means & Joseph W. Yockey eds., 2018)

While still relatively few in number compared to traditional nonprofit and for-profit organizations, the rise of social enterprises represents a possible disruption of not only existing models of doing business but also areas of law that in many respects have seen little fundamental change for decades. One such area is domestic tax law, where social enterprises currently find themselves subject to the rules of for-profit activities and entities. Here, both scholars …

Holacracy And The Law, Matthew T. Bodie

All Faculty Scholarship

No law requires companies to have CEOs, officers, supervisors, chains of command, or even employees. But traditional managerial structures are so ingrained in our political economy that legal doctrines take them for granted. What if they were to disappear? Under holacracy, a new version of participatory management adopted at companies like Zappos and Medium, companies are replacing managers, organizational charts, and subordinates with governance circles, roles, and lead links. The promise of holacracy is a system of management that devolves responsibilities to teams, empowers workers to act freely within specified zones of authority, and energizes the entire organization around an …

Center-Left Politics And Corporate Governance: What Is The 'Progressive' Agenda?, Christopher Bruner

Scholarly Works

For as long as corporations have existed, debates have persisted among scholars, judges, and policymakers regarding how best to describe their form and function as a positive matter, and how best to organize relations among their various stakeholders as a normative matter. This is hardly surprising given the economic and political stakes involved with control over vast and growing "corporate" resources, and it has become commonplace to speak of various approaches to corporate law in decidedly political terms. In particular, on the fundamental normative issue of the aims to which corporate decision-making ought to be directed, shareholder-centric conceptions of the …

Tournament Of Managers: Lessons From The Academic Leadership Market, Usha Rodrigues

Scholarly Works

Why do firms usually make, not buy, their chief executive officers (CEOs)? Public corporations hire their CEOs from within the firm 78% of the time. They do so although earlier studies have found no clear evidence that internal hires perform better than external ones. So why do firms prefer them? Few scholars have focused on this simple question.

The reason why firms favor internal candidates matters not only in its own right, but also for an overlooked reason: it informs the controversial question of executive compensation. Currently board-compensation committees look to peer benchmarks to set executive pay. But, taking cues …

Could The Pay Ratio Disclosure Backfire? Examining The Effects Of The Sec's Pay Ratio Disclosure Rule, Jillian Loh

Texas A&M Law Review

At the signing of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank Act”), President Barack Obama asserted that, “We all win when investors around the world have confidence in our markets. We all win when shareholders have more power and more information. . . . And we all win when folks are rewarded based on how well they perform, not how well they evade accountability.” After the financial crisis in 2008, the Obama Administration recognized the need to reconstruct the existing American financial regulatory system to ensure that a financial meltdown would never happen again. It …

The Death Of The Firm, June Carbone, Nancy Levit

Faculty Works

This Article maintains that the decision in Burwell v. Hobby Lobby, which referred to the corporation as a legal fiction designed to serve the interests of the people behind it, signals the “death of the firm” as a unit of legal analysis in which business entities are treated as more than the sum of their parts and appropriate partners to advance not just commercial, but public ends. The Hobby Lobby reference to the firm as a fiction is a product of a decades-long shift in the treatment of corporations. This shift reflects both an ideological embrace of the free-market-oriented “agency-cost” …

It Is Time For Something New: A 21st Century Joint-Employer Doctrine For 21st Century Franchising, Steven A. Carvell, David Sherwyn

American University Business Law Review

No abstract provided.

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

All Faculty Scholarship

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 …