Labor and Employment Law Commons^™

Bad Briefs, Bad Law, Bad Markets: Documenting The Poor Quality Of Plaintiffs' Briefs, Its Impact On The Law, And The Market Failure It Reflects, Scott A. Moss

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For a major field, employment discrimination suffers surprisingly low-quality plaintiffs' lawyering. This Article details a study of several hundred summary judgment briefs, finding as follows: (1) the vast majority of plaintiffs' briefs omit available caselaw rebutting key defense arguments, many falling far below basic professional standards with incoherent writing or no meaningful research; (2) low-quality briefs lose at over double the rate of good briefs; and (3) bad briefs skew caselaw evolution, because even controlling for win-loss rate, bad plaintiffs' briefs far more often yield decisions crediting debatable defenses. These findings are puzzling. In a major legal service market, how …

(In)Competence In Appellate And District Court Brief Writing On Rule 12 And 56 Motions, Scott A. Moss

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No abstract provided.

American Gangsters: Rico, Criminal Syndicates, And Conspiracy Law As Market Control, Benjamin Levin

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In an effort to reexamine legal and political decisions about criminalization and the role of the criminal law in shaping American markets and social institutions, this Article explores the ways in which criminal conspiracy laws in the United States have historically been used to subdue nonstate actors and informal markets that threatened the hegemony of the state and formal market. To this end, the Article focuses primarily on the Racketeer Influenced and Corrupt Organizations Act (RICO) as illustrative of broader trends in twentieth-century criminal policy. Enacted in 1970, RICO provides criminal sanctions for individuals engaged in unacceptable organized activities and …

The Power And Promise Of Procedure: Examining The Class Action Landscape After Wal-Mart V. Dukes, Suzette M. Malveaux

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No abstract provided.

The Jury (Or More Accurately The Judge) Is Still Out For Civil Rights And Employment Cases Post-Iqbal, Suzette M. Malveaux

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No abstract provided.

Title Ix’S Protections For Transgender Student Athletes, Scott Skinner-Thompson, Ilona M. Turner

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This article examines legal authority and policy to determine whether transgender students in K-12 schools must be permitted to participate in athletics according to their gender identity, and without any requirement for medical intervention. The articles concludes that such a policy is consistent with legal authority under Title IX and Title VII and, more importantly, best advances the well-being of already vulnerable transgender youth by helping to incorporate and include such students in activities that are critical to physical, social, mental, emotional development, and health.

Part II of this article briefly details the history of Title IX with respect to …

Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux

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No abstract provided.

Blue-Collar Crime: Conspiracy, Organized Labor, And The Anti-Union Civil Rico Claim, Benjamin Levin

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This Article provides an historically-rooted analysis of a recent spate of civil RICO complaints arising from labor union organizing campaigns. The Article historicizes contemporary civil RICO suits against labor unions by analogizing to nineteenth century conspiracy prosecutions of unions. In tracing this history of organized labor’s social standing, the Article addresses the cultural framing of the union and its place in political and cultural discourse over the past century. The civil RICO complaints have received limited scholarly attention mainly focusing on issues of federal preemption; this Article argues for a broad reading of the cases as a way to understand …

Made In The U.S.A.: Corporate Responsibility And Collective Identity In The American Automotive Industry, Benjamin Levin

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This Article challenges the corporate-constructed image of American business and industry. By focusing on the automotive industry and particularly on the tenuous relationship between the rhetoric of automotive industry advertising and doctrinal corporate law, this Article examines the ways that social and legal actors understand what it means for a corporation or its products to be American. In a global economy, what does it mean for a corporation to present the impression of national citizenship? Considering the recent bailout of American automotive corporations, the automotive industry today becomes a powerful vehicle for problematizing the conflicted public/private nature of the corporate …

Where You Stand Depends On Where You Sit: Bureaucratic Politics In Federal Workplace Agencies Serving Undocumented Workers, Ming H. Chen

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This Article integrates social science theory about immigrant incorporation and administrative agencies with empirical data about immigrant-serving federal workplace agencies to illuminate the role of bureaucracies in the construction of rights. More specifically, it contends that immigrants' rights can be protected when workplace agencies incorporate immigrants into labor law enforcement in accordance with the agencies' professional ethos and organizational mandates. Building on Miles' Law that "where you stand depends on where you sit," this Article argues that agencies exercise discretion in the face of contested law and in contravention to a political climate hostile to undocumented immigrants for the purpose …

The Second-Class Class Action: How Courts Thwart Wage Rights By Misapplying Class Action Rules, Scott A. Moss, Nantiya Ruan

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Courts apply to wage rights cases an aggressive scrutiny that not only disadvantages low-wage workers, but is fundamentally incorrect on the law. Rule 23 class actions automatically cover all potential members if the court grants plaintiffs' class certification motion. But for certain employment rights cases--mainly wage claims but also age discrimination and gender equal pay claims--29 U.S. C. § 216(b) allows not class actions but "collective actions" covering just those opting in affirmatively. Yet courts in collective actions assume a gatekeeper role just as they do in Rule 23 class actions, disallowing many actions by requiring a certification motion proving …

Civil Rights And Systemic Wrongs, Melissa Hart

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Systemic employment discrimination is a structural, social harm whose victims include not only those who can be specifically identified, but also many who cannot. Pattern and practice claims in employment litigation are an essential tool for challenging this structural harm. Unfortunately, the Supreme Court's decision in Wal-Mart v. Dukes brushes aside the systemic nature of the plaintiffs' claims, making both theoretical and doctrinal mistakes in its application of the procedural and substantive law applicable in employment discrimination class action litigation. The most troubling part of the Court's opinion--its rejection of statistical modeling for remedial determinations--has received little attention. This article …

Class Actions At The Crossroads: An Answer To Wal-Mart V. Dukes, Suzette M. Malveaux

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The Supreme Court has recently decided to hear argument in the largest private-employer civil rights case in American history, Dukes v. Wal-Mart Stores, Inc. This historic case involves up to 1.5 million women suing Wal-Mart, one of the largest companies in the world, for alleged gender discrimination in pay and promotions, in violation of Title VII of the Civil Rights Act of 1964. Like many employees who challenge companywide employment discrimination, the plaintiffs in Dukes brought their case as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure and sought injunctive and declaratory relief, …

Clearing Civil Procedure Hurdles In The Quest For Justice, Suzette M. Malveaux

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No abstract provided.

How Goliath Won: The Future Implications Of Dukes V. Wal-Mart, Suzette M. Malveaux

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No abstract provided.

Excluding Unemployed Workers From Job Opportunities: Why Disparate Impact Protections Still Matter, Helen Norton

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No abstract provided.

Section 5 Constraints On Congress Through The Lens Of Article Iii And The Constitutionality Of The Employment Non-Discrimination Act, Craig Konnoth

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The Employment Non-Discrimination Act (ENDA) that will (hopefully) soon prohibit discrimination against LGB, and ideally, T, individuals, allows state employees to sue states for this discrimination. Scholars and activists fear that these provisions will be struck down as violative of state sovereign immunity, using the Court's recent jurisprudence on Section 5 of the Fourteenth Amendment. This jurisprudence requires Congress to put forth evidence of past state violations of a defined constitutional right before it can subject states to suit. This Congress has done.

However, this Comment suggests that a new requirement of Section 5 legislation is in the works. Key …

From Wards Cove To Ricci: Struggling Against The Built-In Headwinds Of A Skeptical Court, Melissa Hart

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When the Supreme Court in 1971 first recognized disparate impact as a legal theory under Title VII, the Court explained that the "absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability." Forty years later, it is the built-in headwinds of a Supreme Court skeptical of - perhaps even hostile to - the goals of disparate impact theory that pose the greatest challenge to continued movement toward workplace equality. The essay examines the troubled trajectory that disparate impact law has taken in the …

Yes, Labor Markets Are Flawed--But So Is The Economic Case For Mandating Employee Voice In Corporate Governance, Scott A. Moss

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No abstract provided.

Industrial Terrorism And The Unmaking Of New Deal Labor Law, Ahmed A. White

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The passage of the Wagner (National Labor Relations) Act of 1935 represented an unprecedented effort to guarantee American workers basic labor rights--the rights to organize unions, to provoke meaningful collective bargaining, and to strike. Previous attempts by workers and government administrators to realize these rights in the workplace met with extraordinary, often violent, resistance from powerful industrial employers, whose repressive measures were described by government officials as a system of "industrial terrorism." Although labor scholars have acknowledged these practices and paid some attention to the way they initially frustrated labor rights and influenced the jurisprudence and politics of labor relations …

Business-Like: The Supreme Court's 2009-2010 Labor And Employment Decisions, Melissa Hart

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The 2009-10 Term at the Supreme Court was a relatively quiet one for labor and employment law. While the Justices were in the news for decisions on corporate political donations and the Second Amendment, the Court’s work-related docket grabbed no headlines. In fact, though, the Court considered 7 work law cases this Term, in areas ranging from standards for arbitration agreements to employee privacy rights in new technology to time limitations for filing Title VII disparate impact claims. This article discusses the Court’s labor and employment cases for the Term. While they may not have made much news, several of …

The Depression Era Sit-Down Strikes And The Limits Of Liberal Labor Law, Ahmed A. White

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This paper explores the history of sit-down strikes from the New Deal Era and beyond and traces their influence on the substance of modern labor law. It argues that, even as the sit-down strikes proved essential to the development of a meaningful system of labor rights, the strikes also had a very different effect. As this paper undertakes to demonstrate, legal and political attacks on labor rights that were originally aimed at the sit-down strikes metastasized into a more general campaign to prohibit a range of militant strike practices, even those bearing little outward resemblance to the original sit-down strikes. …

The Supreme Court's Post-Racial Turn Towards A Zero-Sum Understanding Of Equality, Helen Norton

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The Supreme Court--along with the rest of the country--has long divided over the question whether the United States has yet achieved a 'post-racial" society in which race no longer matters in significant ways. How, if at all, this debate is resolved carries enormous implications for constitutional and statutory antidiscrimination law. Indeed, a post-racial discomfort with noticing and acting upon race supports a zero-sum approach to equality: if race no longer matters to the distribution of life opportunities, a decision maker's concern for the disparities experienced by members of one racial group may be seen as inextricable from its intent to …

Reviving Employee Rights - Recent And Upcoming Employment Discrimination Legislation: Proceedings Of The 2010 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Scott A. Moss, Sandra Sperino, Robin R. Runge, Charles A. Sullivan

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No abstract provided.

Is It The "Real Thing"? How Coke's One-Way Binding Arbitration May Bridge The Divide Between Litigation And Arbitration, Suzette M. Malveaux

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Although the scholarly literature is replete with discussion of the pros and cons of mandatory arbitration and civil litigation, relative to one another, there has been no examination of one-way binding arbitration as a potential bridge between these procedural poles. The goal of this article is to fill that void. One-way binding arbitration requires an employee to use arbitration to resolve workplace disputes, but also gives the employee, but not the employer, the option of rejecting the arbitrator’s decision. In the event the employee is not satisfied with the outcome of arbitration, she can still pursue her claim in court. …

How The New Economics Can Improve Employment Discrimination Law, And How Economics Can Survive The Demise Of The Rational Actor, Scott A. Moss, Peter H. Huang

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Much employment discrimination law is premised on a purely money-focused "reasonable" employee, the sort who can be made whole with damages equal to lost wages, and who does not hesitate to challenge workplace discrimination. This type of "rational" actor populated older economic models but has been since modified by behavioral economics and research on happiness. Behavioral and traditional economists alike have analyzed broad employment policies, such as the wisdom of discrimination statutes, but the devil is in the details of employment law. On the critical damages-and-liability issues the Supreme Court and litigators face regularly, the law essentially ignores the lessons …

A Matter Of Context: Social Framework Evidence In Employment Discrimination Class Actions, Melissa Hart, Paul M. Secunda

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In litigation disputes over the certification of employment discrimination class actions, social scientists have come to play a central, yet controversial, role. Organizational behavioralists and social psychologists regularly testify for the plaintiffs, offering what is commonly referred to as social framework testimony. These experts explain the general social science research on the operation of stereotyping and bias in decision making and examine the challenged workplace to identify those policies and practices that research has shown will tend to increase and those that will tend to limit the likely impact of these factors. Defendants fight hard against the admission of social …

If It Is Broken, Then Fix It: Needed Reforms To Employment Discrimination Law: 2009 Annual Meeting Of The Association Of American Law Schools Section On Employment Discrimination Law, Melissa Hart, Minna Kotkin, Roberto Corrada, Deborah Widiss

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No abstract provided.

Constraining Public Employee Speech: Government's Control Of Its Workers' Speech To Protect Its Own Expression, Helen Norton

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This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims--a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on--and defer to--government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government …

Procedural Extremism: The Supreme Court's 2008-2009 Labor And Employment Cases, Melissa Hart

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It has become nearly a commonplace to say that the Supreme Court under the leadership of Chief Justice John Roberts is a court of “incrementalism.” The 2008 Term, however, featured several opinions that showcase the procedural extremism of the current conservative majority. In a series of sharply divided decisions, the Court re-shaped the law that governs the workplace - or more specifically the law that governs whether and how employees will be permitted access to the courts to litigate workplace disputes. At least as important as the Court’s changes to the substantive legal standards are the procedural hurdles the five …