16885 research outputs found
Sort by
Twenty-First Century Labor Law: Striking the Right Balance Between Workplace Civility Rules that Accommodate Equal Employment Opportunity Obligations and the Loss of Protection for Concerted Activities Under the National Labor Relations Act
Get PDFEmployees who engage in protected concerted activities relating to work generally are shielded from discipline by Section 7 of the National Labor Relations Act (NLRA). Where otherwise protected work-related activity involves profanity or offensive speech or actions, whether in or out of the workplace, on a picket line, or on social media, such may violate employer civility rules and/or equal employment opportunity laws. Important interests are at stake, including for employers to maintain a safe, discrimination-free workplace; and for employees to exercise their right to communicate about workplace matters. This Article analyzes recent cases on the question when offensive employee conduct loses NLRA protection, highlighting the National Labor Relations Board’s reconsideration and revision of its standards in the General Motors case, July 2020. The Article analyzes the prior context-dependent tests applied by the NLRB to assess whether an employee should lose the protection of the Act, finding these tests more than adequate to balance the important public policies underlying both the NLRA and equal employment opportunity laws, as well as employer and employee rights to manage and work in a place with a desired level of consideration for others. The Article concludes that the Board’s new application of the forty-year-old Wright Line standard to these cases increases management rights and latitude at the expense of hindering employee rights to gather together to discuss and object to problems in the workplace
Democratizing Education Rights
Get PDFIf the United States is to reverse its creeping, illiberal descent, generations of youth must emerge from this tribal, post-truth, pandemic-shattered era to mend democracy. Hope for that uncertain future lies in re-engineering how schoolchildren learn democracy-- not from a civics textbook but by experiencing it in the classroom. The sad irony is that we still lack a knowledge base, grounded in research, for that type of democratic education. Nearly two and a half centuries into the republic\u27s existence, our commitment to democratic education is honored more in the breach than in observance. And our uninformed, polarized, and disaffected electorate is not happy coincidence.
As calls to \u27reimagine education\u27 mount in the time of coronavirus, this Article is the first to propose a constitutional remedy-- an individualized education plan (IEP)-- for all schoolchildren to bring democracy directly into the classroom. This IEPs-for-all remedy animates an affirmative duty long neglected but firmly established in the text, history, and precedents of state constitutions: the duty to educate democratically. This Article is the first to distinguish this duty apart from constitutional obligations of equality and adequacy, contending that the duty to educate democratically guarantees public schooling for and through democracy.
Borrowing a process from its namesake in special education law, the IEPs-for-all remedy signals that all education is special by giving students a voice in their own education and teachers more autonomous choices over how to address their students\u27 needs, capacities, and interests. Such forms of democratic participation can empower teachers to teach and students can learn democracy through experience. Retooled for data collection, the IEP can also amass a knowledge base about educational needs, interventions, and effective instructional practices to inform democratic decision-making-- locally at first in the classrooms, schools, districts, and then eventually in the states charged with the constitutional duty to educate democratically
Endangered Claims
Get PDFLitigants—like organisms in an ecosystem—must evolve to survive our civil justice system. When procedural rules and doctrines that govern civil litigation change, litigants must respond. In some cases, litigants will adapt to the rules. In others, they will migrate to alternative fora to capitalize on the new environment’s rules. For those who cannot adapt or migrate, their claims will go extinct.
This Article chronicles the evolution story of federal civil litigation by examining how, in response to changing procedural rules and doctrines, parties and their claims adapt, migrate, or go extinct. It shows that throughout this evolution, claims by the most resourced parties survive while claims by less resourced parties do not. This leads to the Article’s second contribution, which concerns implications for policymakers. If policymakers understand that, despite the procedural rules or doctrines they adopt, the most powerful litigants will almost always find a way to survive, that understanding should change how policymakers approach their work. More specifically, this Article argues that policymakers should abandon their distorted survival-of-the-fittest approach to procedural reform and instead adopt an Endangered Claims Act approach. Using such an approach, policymakers’ choices would be guided by meritorious claim conservation. Thus, if a procedural change would lead to claim extinction, policymakers would not pursue that change, even if it would otherwise benefit powerful litigants. Finally, to best implement this methodology, policymakers—like scientists observing a species in the wild—will need better information about how claims fare in our civil justice system. Obtaining that information will require greater data-gathering resources and a commitment to, where possible, funneling claims into public courts where they can be better monitored
The Impact of Separate Opinions on International Criminal Law
Get PDFDissents have had a tumultuous history in national and international courts throughout the world. Initially reviled, dissents have come to be a well-accepted, even praiseworthy, component of the American judicial system, and they have traversed the same trajectory in other countries as well as in international courts and tribunals. Particularly noteworthy among international courts are those created to prosecute perpetrators of mass atrocities, such as genocide, crimes against humanity, and war crimes. And nowhere are dissents more common than in these mass atrocity courts. Yet, as prevalent as these dissents are, they have received virtually no scholarly or practical attention. Only a few articles consider international criminal law dissents, and these praise them for enhancing the legitimacy of the international criminal tribunals. This Article, the first in a series, launches a comprehensive empirical treatment of international criminal law separate opinions. The foundation of this project is my careful review of every separate opinion in every Trial Chamber and Appeals Chamber judgment at the four, core international criminal tribunals. My fine-grained assessment of these nearly 300 separate opinions provides a solid basis for my normative conclusions, conclusions that call into question the claims of non-empirical legal scholarship on separate opinions. As the first component of a larger project, this Article makes two substantial contributions: First, it lays the foundation for the remainder of the project by providing core information and statistics about international criminal law\u27s separate opinions. Second, the Article inaugurates the project\u27s normative analyses by empirically assessing one of the most common claims made by proponents of separate opinions: that they help to develop the law. This Article employs a variety of empirical methods to evaluate that claim, including citation counts and a painstaking content analysis of the separate opinions, among others. Each of these analyses suggests that international criminal law\u27s separate opinions, though numerous and voluminous, have not been an influential force in developing international criminal law
Marginal Benefits of the Core Securities Laws
Get PDFTo every thing there is a season. In the area of securities regulation in the United States, it is the season for expansion. This article shows why such expansion should not involve use of the core issuer disclosure, fraud, and insider trading laws to reduce information asymmetry in the stock market in the name of investor protection. I argue that any expansion of these laws focused on this secondary market should therefore be justified by distinct concerns (namely, efficiency ones). Moreover, any push to better serve and protect investors should be focused on other areas of securities law (such as those relating to the structure of securities markets) or other markets (such as the market for investment management)
Requiem for a Lightweight: How NCAA Continues to Distort Antitrust Doctrine
Get PDFThe Supreme Court speaks rarely about the meaning of the Sherman Act. When the Court does speak, its pronouncements have particular resonance and staying power among jurists, scholars, and enforcers. NCAA v. Board of Regents of the University of Oklahoma was such a case. There the Court assessed agreements reducing the output and increasing the prices of televised college football games. After announcing that restraints imposed by sports leagues are exempt from per se condemnation, the Court went on to invalidate the challenged agreements under the rule of reason because they produced significant economic harm without offsetting benefits. In so doing, the Justices also addressed restraints not before the Court, opining that members of the NCAA may collectively restrict the level of compensation that universities provide student-athletes.
Announced almost four decades ago, NCAA and its rationale have exerted substantial influence on the Sherman Act doctrine, enforcement policy, and scholarly discourse well beyond the context of sports leagues. Recently, in NCAA v. Alston, the Court revisited the antitrust propriety of collective limitations on the compensation schools pay student-athletes. There the Court reviewed the Ninth Circuit\u27s condemnation of NCAA regulations restricting the value of education-related benefits, such as post-graduation scholarships, that schools provide student-athletes in addition to tuition, room, board, and other costs of attendance.
While antitrust scholars and practitioners disagree about the merits of the Ninth Circuit\u27s decision, all hoped the Court would clarify the extent to which the NCAA may limit student-athlete compensation. This Article contends that Alston also presented the Court with an opportunity to address more fundamental questions. That is, the case offered the Court a chance to correct NCAA\u27s erroneous application of the per se standard and derivative errors the Court committed when conducting rule of reason analysis--errors that reverberate throughout Sherman Act jurisprudence.
In particular, the Article demonstrates that NCAA\u27s sports league exemption from the ordinary per se standard contradicts basic antitrust principles. Moreover, the rationale for the exemption turned partly on the Court\u27s (correct) assertion that some horizontal restraints can overcome market failures and enhance interbrand competition. Recognition of these potential benefits undermined the Court\u27s otherwise broad articulation of the per se rule that purportedly created the need for such an exemption in the first place.
Failure to condemn the restraints before it as unlawful per se also distorted the Court\u27s pronouncements regarding how to conduct rule of reason analysis. For instance, the requirements for establishing a prima facie case should depend upon the nature of redeeming virtues a restraint might produce. However, courts, agencies, and scholars have read NCAA as holding that proof that a restraint produces prices exceeding the nonrestraint baseline necessarily establishes such a case, even when the restraint may overcome a market failure. Moreover, lower courts, agencies, and the Court itself have read NCAA as endorsing a Quick Look approach in some rule of reason cases, allowing plaintiffs to bypass any requirement to establish anticompetitive harm. Finally, the Court\u27s approach to rule of reason analysis lent credence to the dubious assumption that benefits produced by challenged restraints necessarily coexist with harms, bolstering the equally dubious less restrictive alternative test. However, the Court failed to take the opportunity in Alston to correct these errors and ensure a more coherent Section 1 jurisprudence that better reflects the teachings of modern economic theory
Understanding the Economic and Political Effects of Trump\u27s China Tariffs
Get PDFAlthough President Trump has persistently claimed that China is paying billions of dollars in tariffs imposed on Chinese imports to the United States, empirical evidence indicates that U.S. consumers are bearing the cost of the tariffs: 7.2 billion to the U.S. economy. The unilateral power-based approach to trade used by the Trump Administration has also resulted in unexpected economic and political costs in key Midwestern states that helped propel Trump to the U.S. presidency in 2016. These costs have led to reverses for the Trump Administration in the mid-term elections of 2018 and could ensue in further electoral losses.
As both political parties currently hold little affection for China, the United States could continue to use tariffs against China and other countries as trade policy no matter which party controls the U.S. presidency. For these reasons, a study of how to most effectively use a power-based approach to trade is both useful and timely.
This study indicates that a power-based approach can be used most effectively against countries that lack either the economic power or the political will to engage the United States in a prolonged trade standoff. While most nations appear to fall into one or both of these categories, China is not one of them. China has the economic power to fight a trade war, and China believes it must stand up to the United States. When used against China, the power-based approach carries greater risks because its economic and political effects are difficult to predict and because this approach is inherently more uncertain than the cooperative approach of the World Trade Organization that the United States has rejected. Using a power-based approach against China could backfire because China has the economic power and political will to endure a prolonged battle and play a dangerous game of mutual pain and destruction with the United States
