Labor and Employment Law Commons^™

The Psychology And Neurobiology Of Mediation, Elizabeth E. Bader

Cardozo Journal of Conflict Resolution

This article grew out of a moment in mediation when a party became furious with me after receiving the opening offer from the other side. As I tried to understand what was happening, I suddenly realized it was not about the offer at all. It was about him. He feared a loss of "face" in front of the other parties.

A Genesis Of Conflict: The Zero-Sum Mindset, Jonathan R. Cohen

Cardozo Journal of Conflict Resolution

Parties in conflict often operate under the assumption that for one party to win, the other party must lose. This concept, known as the "zero-sum mindset, " can lead to undesirable results, both because it can make disputes harder to resolve and because people holding such beliefs are more likely to get into conflicts to begin with. Over the past several decades, legal educators specializing in dispute resolution have worked hard to challenge that mindset. This task is not simple, for framing conflict in zero-sum terms has very deep cultural roots tracing back at least to the Biblical stories in …

Saving Mr. Banks And Other Interest-Based Negotiations, Michael Rogers

Cardozo Journal of Conflict Resolution

The goal of this article is to encourage the use of interestbased negotiations. Some of the stories included will be familiar; others will be fresh. In Getting to Yes, Fisher and Ury identify four principles of negotiation ("principled negotiation") that can be employed effectively in almost any type of dispute resolution: (1) Separate the people from the problem; (2) Focus on interests rather than positions; (3) Invent options for mutual gain; and (4) Insist on using objective criteria. Because focusing on interests is the second step identified in Getting to Yes, and inventing options for mutual gain is the …

And Ain't I A Woman: Feminism, Immigrant Caregivers, And New Frontiers For Equality, Shirley Lin

Faculty Scholarship

No abstract provided.

Mike Zimmer, Mcdonnell Douglas And "A Gift That Keeps Giving", William Corbett

Journal Articles

No abstract provided.

The Ninth Circuit's Decision In Von Saher V. Norton Simon Museum Of Art At Pasadena: The Invocation Of The Act Of State Doctrine And Its Implications For Future Nazi-Stolen Art Claims, Erica Wolf

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Scratching The Seven-Year Itch: A Call To Reform California Labor Code Section 2855(B), Alyssa Kaplun

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Constitutional Economics, Luke P. Norris

Law Faculty Publications

This Article argues that the conventional narrative about the decline of Lochnerism and the rise of mid-century substantive due process jurisprudence is incomplete. That narrative focuses initially on how the premises underlying Lochner’s conception of economic freedom were rejected. The Article instead focuses on how the labor movement articulated an alternative conception of freedom that was adopted by Congress, the Executive, and the Supreme Court. While Lochnerism was premised on a negative view of freedom, the labor movement articulated a positive view of freedom and analogized it to republican freedom of association in the political sphere. By reframing the terms …

Rejecting The Tattooed Applicant, Disciplining The Tattooed Employee: What Are The Risks?, Stephen Allred

Law Faculty Publications

In the last twenty years, there has been a significant rise in the popularity of tattoos. Once relegated to the marginal realm of sailors, motorcycle gang members, or dock workers, tattoos are now proudly displayed by NBA stars, rock artists, and film actors. Perhaps not surprisingly, American workers, particularly younger workers, have emulated their idols and obtained tattoos too—at a remarkable rate. In fact, a 2012 Harris Poll found that one in five American adults had at least one tattoo. And while increasing percentages of Americans view tattoos as acceptable (indeed, even as art), tattoos still carry a persistent stigma …

Collective Bargaining In Rent Stabilized Buildings: How New York City's Rent Regulated Market Can Benefit From The Fundamentals Of Labor Law, Stephanie Gorin

Cardozo Journal of Conflict Resolution

There is an evident imbalance of power between the two parties, which is often exasperated by the costs, timing and intimidation of Housing Court. This Note will seek to explore how a "tenant group" should be formed. Although many tenants living in rent-regulated buildings are surrounded by fellow tenants in similar circumstances, many other rent regulated tenants are the sole tenant remaining in their building, still under the auspices of rent regulation. This Note will further seek to explore how sole rent regulated tenants can form and join tenant groups. Next, it proposes a system in which mediation, and, if …

Inequality, Discrimination And Sexual Violence In Us Collegiate Sports, Erin E. Buzuvis, Kristine Newhall

Faculty Scholarship

While college athletics attract thousands of participants and millions of fans each year, examination of United States college athletics reveals a pattern of inequality, discrimination and abuse, which operates to foreclose women's access and suppress women's interest in athletic participation and leadership. This Chapter examines three gender related issues of integrity in college athletics: gender discrimination in athletic participation and opportunity; barriers to leadership for women coaches and administrators; and the relationship between athletics and sexual violence at college and universities. The Chapter also identifies a number of remedies that can mitigate these problems involving the Department of Education, Congress, …

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Journal of Law and Policy

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science, and commerce. These two cases exemplified the debate regarding domestic surrogacy—a debate that has now been raging for decades. A new ethical and legal debate …

Personal Injury Victims As Insurance Collection Agents: Erisa Preemption Of State Antisubrogation Laws, Jonathan P. Connery

Journal of Law and Policy

The Employee Retirement Income Security Act (ERISA) was enacted in 1974 to protect the pension rights of employees nationwide. However, due to its broad preemptive powers, ERISA has since developed into a tool used by health insurers to recover millions of dollars in tort damages meant to benefit employees with ERISA health plans. This practice, known as subrogation, has been met with legislative backlash in the form of state antisubrogation statutes, which attempt to limit the enforceability of subrogation clauses found in almost all ERISA health plans. However, many courts have held that ERISA preempts these antisubrogation statutes, thereby affirming …

Share And Share Dislike: The Rise Of Uber And Airbnb And How New York City Should Play Nice, Alexandra Jonas

Journal of Law and Policy

Uber and Airbnb are two companies in the emerging “sharing economy” that provide individuals with a means to become entrepreneurs and benefit from a laissez-faire business model. The problem, however, is that while the benefits to users are great, so too are the risks. The dangers of operating without restraint and circumventing existing law are not only potentially harmful to unapprised users, but also adversely affect the continued use of these businesses. Every aggrieved user complaint has the potential for a lawsuit and every violation creates an opportunity for penalties. Left over are attempts by the courts and city government …

The Hidden World Of Unconscious Bias And Its Impact On The "Neutral" Workplace Investigator, Ashley Lattal

Journal of Law and Policy

Workplace investigations into complaints of harassment, discrimination, and other allegations of workplace misconduct have become a critical method for employers to establish that they have complied with certain obligations to provide a discrimination-free workplace. As a result, the fairness and effectiveness of the workplace investigation process utilized by employers has increasingly come under judicial scrutiny. The nature of workplace investigations rests upon the assumption and expectation that workplace investigators are capable of being impartial in making findings of fact. For this reason, courts have identified the impartiality of the investigator as a key tenet of a fair and effective workplace …

College Football Coaches' Pay And Contracts: Are They Overpaid And Unduly Privileged?, Randall S. Thomas, R. Lawrence Van Horn

Vanderbilt Law School Faculty Publications

College football coaches' employment contracts and compensation garner public attention and scrutiny in much the same way as those of corporate CEOs. In both cases, the public perception is that they must be overpaid and pampered Economic theory claims that for coaches and CEOs to be overpaid, they must be receiving compensation in excess of the value they create for their organizations. However, both receive pay-for-performance compensation, which structurally aligns their compensation with value creation. This means we need to examine the underlying structure of the contract that gives rise to the observed compensation to determine whether they are appropriately …

Are College Presidents Like Football Coaches? Evidence From Their Employment Contracts, Randall Thomas, Lawrence R. Van Horn

Vanderbilt Law School Faculty Publications

College presidents and football coaches are frequently criticized for their high compensation. In this paper, we argue that these criticisms are unmerited, as the markets for both college presidents and football coaches exhibit properties consistent with a competitive labor market. Both parties compensation varies in sensible ways related to the size of the programs they manage, as well as their potential for value creation. Successful college presidents and football coaches can greatly increase the value of their schools well beyond the amount they receive in compensation. If these higher education executives' compensation is the result of a competitive labor market, …

Special Treatment Stigma After The Ada Amendments Act, Nicole Buonocore Porter

Faculty Publications

This Article explores a unique source of stigma suffered by individuals with disabilities in the workplace. Instead of focusing on those with the most stigmatizing disabilities, I focus on those individuals who have disabilities that are not perceived as very severe, yet they still suffer stigma. These individuals are stigmatized because of the special treatment they receive (or are perceived as receiving) through workplace accommodations provided pursuant to the Americans with Disabilities Act (ADA). In prior work, I have called this phenomenon "special treatment stigma, " the harm that arises from receiving special treatment in the workplace, especially when coworkers …

Labor And Employment Law At The 2014-2015 Supreme Court: The Court Devotes Ten Percent Of Its Docket To Statutory Interpretation In Employment Cases, But Rejects The Argument That What Employment Law Really Needs Is More Administrative Law, Scott A. Moss

Publications

No abstract provided.

Truth And Lies In The Workplace: Employer Speech And The First Amendment, Helen Norton

Publications

Employers' lies, misrepresentations, and nondisclosures about workers' legal rights and other working conditions can skew and sometimes even coerce workers' important life decisions as well as frustrate key workplace protections. Federal, state, and local governments have long sought to address these substantial harms by prohibiting employers from misrepresenting workers' rights or other working conditions as well as by requiring employers to disclose truthful information about these matters.

These governmental efforts, however, are now increasingly vulnerable to constitutional attack in light of the recent antiregulatory turn in First Amendment law, in which corporate and other commercial entities seek -- with growing …