Wednesday, April 16, 2014
I'm sorry to report that John E. (Jack) Dunsford passed away earlier this week. Jack was emeritus at SLU, and the entire community here will miss him greatly. Jack was a beloved colleague, a wonderful teacher, and a preeminent scholar and arbitrator. This is from his faculty page here:
John Dunsford is one of the nation's foremost arbitrators and labor law scholars. For more than four decades, labor unions and companies have entrusted him to settle their differences.
"I view the selection to arbitrate as a privilege," says Professor Dunsford. "One of the highest compliments you can receive is to be asked by parties with adverse interests to consider their differences and offer solutions. It's very rewarding."
Dunsford was a young college professor when the legendary scholar and arbitrator Leo Brown, SJ, tapped him in the early 1960s to be an apprentice.
""Among the many things Fr. Brown taught me was to try to understand the underlying problem of whatever case is given to you,"" Dunsford remembers. "Sometimes it's not apparent and other times you have to dig for it, but if you can help the parties resolve their dispute and do something to help their relationship along the way then you've done a lot."
As Professor Dunsford's reputation as a thoughtful and unbiased arbitrator grew, so did his client list. Over the span of his career, Dunsford has arbitrated nearly 1,000 disputes for groups such as U.S. Steel and the United Steelworkers of America and the National Football League and the Bert Bell Retirement and Pension Plan\; Southwestern Bell and the Communications Workers of America\; the International Revenue Service and the National Treasury Employees Union. He has arbitrated for virtually all of the U.S. airlines and their unions. Most recently, he participated in an interest arbitration between Alaska Airlines and the Transport Workers Union to set rates during the difficult economic times following 9/11. He is a permanent arbitrator for John Deere & Company and the United Auto Workers.
Professor Dunsford has held several leadership positions with the prestigious National Academy of Arbitrators, including serving as president in 1984-1985. In 2000, he was named a fellow in the College of Labor and Employment Lawyers. From 1987-1994, he directed the School's Wefel Center for Employment Law and remains a senior consultant. He was the McDonnell Professor of Justice in American Society from 1982-1987.
Except for a two-year break in the late 1970s when he practiced arbitration full time, Professor Dunsford has been teaching labor law at the School of Law since the early 1960s. In addition to a book, individuals and Unions, he has written numerous articles and chapters on labor law, arbitration, and the U.S. Constitution and personal freedom. Currently, his research interest is in the area of church-state relations, specifically tuition vouchers that allow parents the option of using state money to send their children to the schools of their choice.
Scott Bauries (Kentucky) has posted two new papers on TWEN. the first is Individual Academic Freedom: An Ordinary Concern of the First Amendment, which Scott says he views as Part I of what he sees as a three-part series directed at identifying a better constitutional “home” for academic freedom than the First Amendment. It is forthcoming in the Mississippi Law Journal, and here is the abstract:
This contribution to the Mississippi Law Journal's symposium on education law makes the case that individual academic freedom is not a "special concern of the First Amendment," as the Supreme Court has often said it is. The article tracks the academic freedom case law in the Court and establishes that, while the Court has often extolled the value and virtues of individual academic freedom in its opinion rhetoric, no case it has ever decided has depended for its resolution on a "special" individual right to speech or association that inheres only in academics. The article then fleshes out the implications of this claim for the speech rights of publicly employeed academics following the Court's decision in Garcetti v. Ceballos, concluding both that the decision is here to stay, and that recent efforts to craft exceptions to it are unavailing due to the underlying doctrinal structure of the First Amendment.
The second article is a short review of the labor and employment cases the Supreme Court decided in the last term that Scott did for the Louisville Law Review as a follow-up to his presentation on the same topic at the Warns Institute at Louisville this past June. It's entitled, Procedural Predictability and the Employer as Litigator: The Supreme Court's 2012-2013 Term, and here is its abstract:
In this contribution to the University of Louisville Law Review’s Annual Carl A. Warns Labor and Employment Institute issue, I examine the Supreme Court’s labor and employment-related decisions from the October Term 2012 (OT 2012). I argue that the Court’s decisions assisted employers as litigators — as repeat players in the employment dispute resolution system — in two ways. First, the Court established simple contract drafting strategies that employers may use to limit their exposure to employment claims. Second, the Court adopted bright-line interpretations of employment statutes. Both forms of assistance served a formalist interest in what I term “procedural predictability” — enhanced employer predictability and control of both the duration and costs of resolving employment disputes.
Great work, Scott!
CALL FOR PROPOSALS
ASSOCIATION OF AMERICAN LAW SCHOOLS (AALS)
SECTION ON CONTRACTS
2015 ANNUAL MEETING
JANUARY 2-5, 2015
MIND THE GAP! – CONTRACTS, TECHNOLOGY AND LEGAL GAPS
The AALS Contracts Section solicits proposals for presentations at the Section’s Annual Meeting program, Mind the Gap! - Contracts, Technology and Legal Gaps, to be held in Washington, D.C. on January 2-January 5, 2015.
Technological innovation has created new challenges for the law. New technologies often create legal and ethical questions in areas such as privacy, employment, reproduction and intellectual property. Who owns the data collected by embedded medical devices? Can employers wipe departing employees’ phone data? To what extent are companies liable for harms created by their inventions, such as driverless cars? Who owns crowd sourced content?
Courts and legislatures are often slow to respond to these issues. To fill this legal gap created by rapid advancements in technology, businesses and individuals attempt to reduce their risk and uncertainty through private ordering. They limit their liability and allocate rights through contractual provisions. Technology affects the way contracts are used as well. Employers may have employees agree to remote phone wiping policies in their employment agreement or through click wrap agreements that pop up when they connect to the network server. Through contracts, businesses establish norms that can be hard to undo. The norm of licensing instead of selling software, for example, was established through contract and has become entrenched as a business practice. The collection of online personal information through online contracts is another example.
The Section seeks two or three speakers to join our panel of invited experts to discuss how technology has affected the use of contracts. How have parties used contracts to address the risks created by technologies? In what ways have contracts been used to privately legislate in the gap created by technological advancements? What concerns are raised when private ordering is used to fill the legal gap created by technology? What are, or should be, the limits of consent and contracting where emerging technologies are involved?
Drafts and completed papers are welcome though not required, and must be accompanied by an abstract. Preference will be given to proposals that are substantially complete. Please indicate whether the paper has been published or accepted for publication (and if so, provide the anticipated or actual date of publication). There is no publication requirement, but preference will be given to papers that will not have been published by the date of the Annual Meeting.
We particularly encourage submissions from contracts scholars who have been active in the field for ten years or less, especially those who are pre-tenured, as well as more senior scholars whose work may not be widely known to members of the Contracts Section. We will give some preference to those who have not recently participated in the Section’s annual meeting program.
DEADLINE: August 15, 2014. Please e-mail an abstract or proposal to section chair, Nancy Kim (email@example.com) with “AALS Submission” in the title line by 5:00pm (Pacific Time) August 15, 2014. Submissions must be in Word or PDF format.
Tuesday, April 15, 2014
Michelle Travis (San Francisco) has just posted on SSRN her article (forthcoming Denver L. Rev.) Disabling the Gender Pay Gap: Lessons from the Social Model of Disability. Here's the abstract:
As we celebrate the fiftieth anniversary of Title VII’s prohibition against sex-based compensation discrimination in the workplace, the gender wage gap remains robust and progress toward gender pay equity has stalled. This article reveals the role that causal narratives play in undermining the law’s potential for reducing the gender pay gap. The most recent causal narrative is illustrated by the "women don’t ask" and "lean in" storylines, which reveal our society’s entrenched view that women themselves are responsible for their own pay inequality. This causal narrative has also embedded itself in subtle but pernicious ways in antidiscrimination doctrine, which helps shield employers from legal liability for gender pay disparities.
The disability civil rights movement faced a similar challenge, however, and their [sic] response provides a potential path forward on gender pay issues. The causal narrative that erected barriers for disability rights was engrained in the medical model of disability, which also identified internal deficits as the source of individuals’ own limitations. The disability rights movement responded with a reconceptualized "social model," which explains disability instead as the result of the environment in which an individual’s characteristics interact. The social model of disability is an alternative causal narrative: one that shifts focus onto the role played by employer practices and organizational norms in producing inequality. This article explores how a social model approach to women’s compensation could help shift the causal focus away from the manner in which women negotiate, and onto the institutional practices that produce unequal results. In doing so, the social model may help resuscitate Title VII’s disparate impact theory to allow challenges to employment practices that base compensation on employees’ individual demands, thereby moving us toward more effective structural solutions to the gender pay divide.
Monday, April 14, 2014
It's time for this year's edition of Workplace Prof Faculty moves. Please let us know via the comment section what we missed.
Stephanie Bornstein from visiting at Hastings to a tenure-track position teaching employment law and employment discrimination law at the University of Florida.
Veronica Root from visiting at Notre Dame to a tenure-track position there.
Promotions & Tenure
Rebecca Lee awarded tenure at Thomas Jefferson School of Law.
Nancy Leong tenured at the Sturm College of Law at the University of Denver
Joe Seiner promoted to Professor at South Carolina Law School
Bill Corbett visiting at the University of Georgia spring semester 2015
Michael Waterstone visiting at Northwestern AY 2014-1015
Marty Malin reappointed to a 5 year term as a member of the Federal Service Impasses Panel.
Stephen Befort will again serve as Associate Dean for Research and Planning at the University of Minnesota Law School
Susan Bisom-Rapp was appointed to the Scientific Committee of the Marco Biagi Foundation at the University of Modena and Reggio Emilia. The committee is the academic advisory board of the Foundation.
Michelle Travis named Associate Dean for Faculty Scholarship at the University of San Francisco
Noah Zatz named Associate Director of UCLA’s Institute for Research on Labor & Employment
Ed Render, who will be honored by having his named added to the Warns Institute to acknowledge all he contributed to the school, the community, and the Institute.
Friday, April 11, 2014
The D.C. Circuit, by a 2-1 vote, has denied SeaWorld of Florida’s petition for review of an order finding a general duty clause violation related to the death of one of SeaWorld’s killer whale trainers, Dawn Brancheau. The OSH Act’s general duty clause provides that employers shall furnish to employees “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” The ALJ's order found a violation and required SeaWorld to use physical barriers and minimum distances to separate trainers from the killer whales.
The critical disagreement between the majority and the dissent here has to do with the role of OSHA in regulating entertainment and sports industries. The dissent by Judge Kavanaugh argues that OSHA’s insistence on physical barriers and minimum distances strikes at the very nature of the activity itself and is an improper attempt to regulate risks that are intrinsic to the activity. Judge Kavanaugh contends that no principled distinction can be drawn between the regulation of killer whale shows and the regulation of speed in NASCAR races, tackling in NFL football, punching in professional boxing, or any of the myriad dangers of professional stunt acting, circuses, animal shows, air shows, rodeos, and so on. Judge Kavanaugh notes that, prior to this case, OSHA had prudently declined to use the general duty clause to regulate normal activities in the sports and entertainment industries. Judge Kavanaugh argues that the regulation of such inherently risky activities, which are intrinsic to certain sports or entertainment industries, is a policy question for Congress that should not be the subject of general duty clause regulation by OSHA.
The majority, penned by Judge Rogers and joined by Chief Judge Garland, rejects the dissent’s parade of horribles, insisting that such hypotheticals need not be answered in this case and that SeaWorld failed to raise these hypotheticals in the administrative proceedings (a point that Judge Kavanaugh says the Department itself forfeited by failing to raise forfeiture in the appellate proceedings!). If and when squarely presented with other sports or entertainment questions, the majority says, OSHA may find a principled distinction by, for example, determining that physical contact is “‘intrinsic’ to professional football in a way that it is not to a killer whale show.”
I do not believe we have seen the end of this case or of the larger issue it presents. But if, after this ruling, OSHA does attempt more aggressive general duty clause regulation in sports, a student in my Worker Safety Law & Policy course has advanced a very specific suggestion for the next problem to target: head protection for pitchers in Major League Baseball.
Counterbalancing yesterday's news eliminating HR departments is a story about an innovative HR strategy dubbed "Pay to Quit." According to a recent piece in Slate, Amazon is offering up to $5000 to any warehouse worker who quits. Amazon's letter to its shareholders stresses that the idea is to filter out those with little attachment to the company so that only really dedicated workers will remain:
The second program is called Pay to Quit. It was invented by the clever people at Zappos, and the Amazon fulfillment centers have been iterating on it. Pay to Quit is pretty simple. Once a year, we offer to pay our associates to quit. The first year the offer is made, it’s for $2,000. Then it goes up one thousand dollars a year until it reaches $5,000. The headline on the offer is “Please Don’t Take This Offer.” We hope they don’t take the offer; we want them to stay. Why do we make this offer? The goal is to encourage folks to take a moment and think about what they really want. In the long-run, an employee staying somewhere they don’t want to be isn’t healthy for the employee or the company.
Maybe making an offer you can refuse will have that effect. Or maybe those remaining are those without viable alternatives. But who am I to question the wisdom of Amazon?
By the way, this is the second of three "employee empowerment" programs featured in the Amazon letter. The first is Career Choice, "a program where we pre-pay 95% of tuition for our employees to take courses for in-demand fields, such as airplane mechanic or nursing, regardless of whether the skills are relevant to a career at Amazon. The goal is to enable choice." In this case, apparently choice to leave Amazon.
One wonders about the health of employment at a firm when two of the three employee empowerment initiatives are of the don't- let-the-door-hit-you variety. You naturally ask, what's the third? No surprise here -- the Virtual Contact Center, which has "continued to grow with terrific results." Work from home customer service -- it's Amazon's "fastest growing 'site" in the U.S."
H/t to Steve Willborn.
Thursday, April 10, 2014
Thanks to Liz Tippett for alerting me to the WSJ article on firms getting leaner and meaner by eliminating HR. Liz comments that it reminded her of what she would say to grumpy corporate clients – "the only thing worse than calling your employment lawyer is not calling your employment lawyer."
In an era in which "compliance" is increasingly important for more and more employers, it is truly remarkable to discover that a department whose mission includes compliance with complicated labor and employment regulations is being phased out. And, if the article is to be believed, not merely at smaller firms.
I'd say that the article views the trend -- if such it be -- with suspicion. While outsourcing many of the mechanical operations of HR is much easier today with technological advances, it remains true that both managing "human resources" and complying with the law requires a more sophisticated understanding of both than a typical outside firm can provide.
But maybe I shouldn't complain. Savings on the front end with HR departments may generate more lawyers' fees on the back end, which has its advantages for law schools and the legal profession in this market.
Tuesday, April 8, 2014
(Photo credit The Individualist Feminist) Happy Equal Pay Day, the day that women's pay catches up to men's from last year. The gap is currently 77 cents for every dollar a man earns, but that does not account for racial differences. Black women only make 64 cents to every dollar a white man makes. For Latina women, it’s 54 cents. President Obama's new workplace orders are heartily applauded by those of us who think that something other than women's fully empowered and free choices are driving this gap.
Brad Areheart (Tennessee) and Michael Stein (William & Mary; Harvard) have just posted on SSRN their article (forthcoming 83 George Washington L. Rev. (2015)) Integrating the Internet. Here's the abstract:
This Article argues that the paradigmatic right of people with disabilities “to live in the world” naturally encompasses the right “to live in the Internet.” Further, that the Internet is rightly understood as a place of public accommodation under anti-discrimination law. Because public accommodations are indispensable to integration, civil rights advocates have long argued that marginalized groups must have equal access to the physical institutions that enable one to learn, socialize, transact business, find jobs, and attend school. The Web now provides all of these opportunities and more, but people with disabilities are unable to traverse vast stretches of its interface. This virtual embargo is indefensible, especially when one recalls that the entire Web was constructed over the last 25 years and is further constructed every day. Exclusion from the Internet will cast an even wider shadow as an aging U.S. population with visual, hearing, motor, and cognitive impairments increasingly faces barriers to access. Unless immediate attention is given, the virtual exclusion of people with disabilities — and others, such as elders and non-native English speakers — will quickly overshadow the ADA’s previous achievements in the physical sphere.
Accordingly, this Article develops the claim that the Internet is a place of public accommodation, which must be integrated, by showing the same concerns that motivated access for African Americans under the Civil Rights Act of 1964 now compel Web accessibility for people with disabilities under the ADA. The issue is, however, even more pressing as the Internet is broad enough to encompass all of the traditional categories of public accommodations — as well as social arenas like education and work. In this way, access to the Internet provides an unprecedented opportunity to overcome attitudinal barriers since almost all people now interact frequently through the Web. Moreover, because disabilities are not apparent online, the Internet facilitates the social engagement of people who might not otherwise interact. Finally, Internet accessibility provokes reconsideration of the Constitutional rights of individuals with disabilities. Integrating the Internet will advance — instead of infringe upon — their rights to democratic self-governance, personal autonomy, and self-expression.
Monday, April 7, 2014
To stimulate scholarly activity and broaden academic interest in comparative labour and employment law, the International Association of Labour Law Journals announces a Call for Papers for the 2014 Marco Biagi Award. The award is named in honor of the late Marco Biagi, a distinguished labour lawyer, victim of terrorism because of his commitment to civil rights, and one of the founders of the Association. The Call is addressed to doctoral students, advanced professional students, and academic researchers in the early stage of their careers.
- The Call requests papers concerning comparative and/or international labour or employment law and employment relations, broadly conceived. Research of an empirical nature within the Call’s purview is most welcome.
- Submissions will be evaluated by an academic jury to be appointed by the Association.
- Papers accepted by the jury will be assured publication in a member journal.
- Papers may be submitted preferably in English, but papers in French, or Spanish will also be accepted. The final version should not significantly exceed 50,000 characters which is about twenty printed pages.
- The author or authors of the papers selected by the jury will be invited to present the work at the Association’s 2014 meeting in Dublin. Efforts are being undertaken to attach an honarium and travel expenses for the presentation of the paper. Until that effort bears fruit, however, the Association hopes that home institutional funds would be available to support the researcher’s presentation.
- The deadline for submission is April 30, 2014. Submissions should be transmitted electronically to both Lavoro e diritto at firstname.lastname@example.org andthe Comparative Labor Law & Policy Journal at email@example.com.
The International Association of Labor Law Journals
Análisis Laboral, Peru
Arbeit und Recht, Germany
Australian Journal of Labor Law, Australia
Bulletin on Comparative Labour Relations, Belgium
Canadian Labour and Employment Law Journal, Canada
Comparative Labor Law & Policy Journal, USA
Diritti lavori mercati, Italy
Europäische Zeitschrift für Arbeitsrecht (EuZA), Germany
European Labour Law Journal, Belgium
Giornale di Diritto del lavoro e relazioni industriali, Italy
Industrial Law Journal, United Kingdom
Industrial Law Journal, South Africa
International Journal of Comparative Labour Law and Industrial Relations, The Netherlands
International Labour Review, ILO
Japan Labor Review, Japan
Labour Society and Law, Israel
La Rivista Giuridica del Lavoro e della Previdenza Sociale – RGL, Italy
Lavoro e Diritto, Italy
Pécs Labor Law Review, Hungary
Relaciones Laborales, Spain
Revista de Derecho Social, Spain
Revue de Droit Comparé du Travail et de la Securité Sociale, France
Revue de Droit du Travail, France
Rivista giuridica del lavoro e della sicurezza sociale, Italy
Temas Laborales, Spain
Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht, Germany
Prior Recipients of the Marco Biagi Award
2013 Aline Van Bever (University of Leuven, Belgium), The Fiduciary Nature of the Employment Relationship
2012 Diego Marcelo Ledesma Iturbide (Buenos Aires University, Argentina), Una propuesta para la reformulación de la conceptualización tradicional de la relación de trabajo a partir del relevamiento de su especificidad jurídica
Special Commendation: Apoorva Sharma (NationalLawUniversity, Delhi, India), Towards an Effective Definition of Forced Labor
2011 Beryl Ter Haar (Universiteit Leiden, the Netherlands), Attila Kun (Károli Gáspár University, Hungary) & Manuel Antonio Garcia-Muñoz Alhambra (University of Castilla-La Mancha, Spain), Soft On The Inside; Hard For the Outside.An Analysis of the Legal Nature of New Forms of International Labour Law
Special Commendation: Mimi Zou (OxfordUniversity, Great Britain), Labour Relations With “Chinese Characteristics”? Chinese Labour Law at an Historic Crossroad
2010 Virginie Yanpelda, (Université de Douala, Cameroun), Travail décent et diversité des rapports de travail
Special Commendation:Marco Peruzzi (University of Verona, Italy), Autonomy in the European social dialogue
Association’s Award Prior to Naming as Marco Biagi Award
2009 Orsola Razzolini (Bocconi University, Italy), The Need to Go Beyond the Contract: “Economic” and “Bureaucratic” Dependence in Personal Work Relations
The AP is reporting that President Obama will announce on Tuesday two new executive orders. One will ban federal contractors from maintaining pay secrecy rules. The other will require federal contractors to mantain records on compensation based on race and sex and provide them to the government.
As many readers know (and I swear I told the reporter this), the NLRA already bans pay secrecy rules. An executive order will obviously help as it's enforcement is different and much more likely to prevent these rules earlier. But I think the bigger change is the compensation data rule. Just requiring employers to record that data could have a positive impact if it leads them to better recognize pay disparities and inquire whether they are justified by legitimate reasons. And I'm sure that there are many labor economists, among others, who would love to get their hands on this type of data after a few years.
Hat Tip: Patrick Kavanagh
Friday, April 4, 2014
Attention: Law Professors and Law Students—Midnight (EDT) on May 15, 2014, is the deadline for submitting articles for the Annual Law Student Writing Competition sponsored by the American Bar Association Section of Labor and Employment Law and the College of Labor and Employment Lawyers. The competition offers monetary prizes and publication for the first-place winning article in the ABA Journal of Labor & Employment Law. Full competition rules are available at:
In addition to publication for the first place winner, note the monetary prizes: $1500 for first place, $1000 for second place, and $500 for third. Encourage your students to take advantage of this great opportunity!
Workplace Blog prepares an annual report of workplace law professors comings, goings, etc., which will appear on the on the Blog in the next few weeks.
If you have any news you want to share for the upcoming academic year, please send to me at firstname.lastname@example.org. We're interested in
- entry-level appointments
- permanent lateral moves
- appointments to administrative positions
- tenure and/or promotion
- retirements, and deaths.
Thanks in advance for helping to keep the virtual labor and employment law professor community strong, engaged, and active!
Thursday, April 3, 2014
Wednesday, April 2, 2014
As promised, I am returning to the RICO wage depression cases to examine proximate cause. Recall that these cases involve a class of legal, unskilled employees alleging that their wages were depressed due to an employer’s pattern of making false attestations on immigration documents, such as I-9s, as part of a scheme to hire illegal workers and keep labor costs down. Such false attestations violate 18 U.S.C. § 1546, and violations of that statute were added to the definition of predicate “racketeering activity” by a 1996 amendment to RICO. The Fourth and Eleventh Circuits, in Walters v. McMahen and Simpson v. Sanderson Farms, respectively, affirmed the dismissal of RICO wage depression claims due to the failure to plausibly plead that the employer’s false attestations proximately caused plaintiffs’ damages. The Eleventh Circuit also found a failure to plausibly plead injury, as discussed here.
The law on proximate cause in the civil RICO setting is rather confused. Courts struggle with cases where a predicate misrepresentation is made by defendant to some third party other than the plaintiff, and the plaintiff is ultimately damaged as a result. A good summary of courts’ back and forth on the RICO proximate cause question can found in this article by Randy D. Gordon. Generally speaking, the Court has demanded that the connection between the predicate act and the plaintiff’s damage be sufficiently direct, and not too remote, derivative, contingent, or attenuated. But this “directness” requirement does not necessarily preclude a RICO claim simply because the misrepresentation was made to a third party rather than the plaintiff. In a 2008 case, the Court found a viable RICO claim where defendants, bidders in a county tax-lien auction, made misrepresentations to Cook County, Illinois causing damages that were suffered by plaintiffs, other non-winning bidders whose bids were passed over. Importantly, the county itself did not suffer any economic harm from the misrepresentation; only the losing bidders suffered economic harm.
Before Twombly and Iqbal, wage depression claims like those in Walters and Simpson were allowed to proceed beyond a motion to dismiss in the Eleventh Circuit, as well as the Ninth, Sixth, and Second (claim by competitors rather than employees). But in Walters, the Fourth Circuit appears to have completely precluded, on proximate cause grounds, worker wage depression claims based on false I-9 attestations. The court reasoned that false attestations are “fundamentally crimes against the government of the United States” rather than the plaintiffs. Thus, the directness requirement is not met. To demonstrate the lack of proximate cause, the Fourth Circuit hypothesized that the employer could have caused precisely the same result by breaking the law in some other way. For example, the defendant could have simply paid undocumented workers in cash without reporting their employment to the government, which would have had the same effect on the labor market and plaintiffs’ wages. Hence, the Fourth Circuit reasoned, the alleged false I-9 attestations in violation of 18 U.S.C. § 1546 could not have been the proximate cause of plaintiffs’ depressed wages. In responding to a petition for certiorari, the defendant argued that the Fourth Circuit’s holding simply reflected the effect of Twombly and Iqbal, and that it did not create a circuit split. The Court denied certiorari.
The Eleventh Circuit in Simpson carefully framed the proximate cause defect as a pleading problem that might have come out differently under the now-retired Conley pleading standard – an important point, given that the Eleventh Circuit had to distinguish its opinion in a similar case decided in 2006, Williams v. Mohawk Industries. The court, citing Mohawk, acknowledged that “[w]ith enough factual support” the plaintiffs’ “attenuated, multi-step causal theory could still be ‘direct.’” But, the court found, there were simply not enough facts alleged here to establish a plausible “direct relation” between false attestations and wage depression.
What facts might have been enough to make out a plausible claim of directness? The court said that “[w]ithout pleading population data, the relevant geographic market, before-and-after wage rates, or wage data from comparable . . . employers, the plaintiffs have failed to define too many crucial, operative variables in their theory of causation.” So, despite all the talk of proximate cause, perhaps the failure to plead enough market data in a post-Iqbal world was the real problem?
Either there is a circuit split on whether these wage depression claims are viable at all, or Twombly and Iqbal are having a dramatic impact on the amount of market data that must be included in a complaint for wage depression claims to survive a motion to dismiss.
A twofer from Jim Oleske (Lewis & Clark). First, his piece, Obamacare, RFRA, and the Perils of Legislative History has been published at Vanderbilt Law Review's En Banc, as part of a symposium on the Hobby Lobby case. The abstract of his piece:
In NFIB v. Sebelius, four members of the Supreme Court expressed "no doubt" about their ability to read Congress's mind based on the legislative history of the Affordable Care Act. As this essay notes, however, their reading of the legislative history was based on a fundamentally mistaken assumption and ignored the most relevant congressional debates over the Act.
In Sebelius v. Hobby Lobby, the Court will have another opportunity to consider confidently sweeping assertions about legislative history. This time the arguments center on the meaning of the Religious Freedom Restoration Act (RFRA), and the specific contention is that "everyone agreed" in a subsequent congressional debate that RFRA protects for-profit corporations. A full examination of that debate, however, casts considerable doubt on the claim that it demonstrates such an undisputed understanding of RFRA. Accordingly, this essay concludes that the Court would be better advised to interpret RFRA with reference to the surrounding body of law into which it was explicitly designed to be integrated — the Supreme Court's pre-1990 jurisprudence, which had pointedly refused to require religious exemptions from statutory schemes regulating "commercial activity."
Oleske has also published a religion-related article, Interracial and Same-Sex Marriages: Similar Religious Objections, Very Different Responses, which is appearing in the Harvard Civil Rights-Civil Liberties Law Review. The abstract:
One of the most active fronts in the debate over same-sex marriage laws concerns proposed religious exemptions that would allow for-profit businesses to discriminate against same-sex couples. These exemptions, which are being championed by a group of prominent constitutional scholars, would provide a shield from state antidiscrimination laws for a wide variety of commercial actors. Examples include innkeepers who refuse to host same-sex weddings, bakers who refuse to provide cakes for such weddings, employers who refuse to extend family health benefits to married same-sex couples, and landlords who refuse to rent apartments to such couples.
Today's widespread academic validation of religious objections to same-sex marriage stands in stark contrast to the academy’s silence in the 1940s, 1950s, and 1960s on the then-perceived conflict between religious liberty and interracial marriage. Although religious objections to interracial marriage were pervasive at the time — as reflected in the statements of politicians, preachers, and jurists, as well as in public opinion polls — those objections never found a home in the pages of America's academic law journals.
This Article offers the first comprehensive discussion of why the legal academy has been so solicitous of religious objections to same-sex marriage when it was never receptive to similar objections to interracial marriage. After examining several factors that have contributed to this "marriage dichotomy" in the academy — including the rise of the conservative legal movement, the influence of the Catholic Church, and the unique role of race in American history — the Article explains why the most important factor for purposes of the proposed exemptions is the recent reconceptualization of religious liberty as extending fully to for-profit commercial businesses. So extended, religious liberty will inevitably conflict with the rights of third-parties in the marketplace, a dynamic that is vividly illustrated by the prospect of businesses invoking religion to deny service to same-sex couples. This Article concludes that exemptions authorizing such conduct threaten the constitutional right of same-sex couples to equal protection — a right that has received scant attention in the debate until now, but one that can no longer be ignored in light of United States v. Windsor.
Jim has long been interested int he intersection of religion and employment law, so these are well worth the read.
Anjum Gupta (Rutgers - Newark) argues in Nexus Redux (forthcoming 90 Indiana L.J. (2015)) that in asylum cases in which individuals fear persecution in their home countries because of race, religion, nationality, membership in a particular social group, or political opinion, courts should adopt "a burden-shifting framework ... that is inspired by the frameworks for assessing causation in U.S. anti-discrimination law.... The article draws from the literature and jurisprudence surrounding intent in U.S. asylum law and anti-discrimination law, as well as from mixed motives jurisprudence."
Now, if the Supremes could just get the burden-shifting framework right ....
Tuesday, April 1, 2014
Friend of the blog, Mike Zimmer (Loyola Chicago) sends along news that Loyola University Chicago School of Law is organizing its fifth annual constitutional law colloquium in Chicago this fall. The dates are Friday, November 7 and Saturday, November 8. Here are the details:
Fifth Annual Constitutional Law Colloquium
Friday, November 7th and Saturday, November 8th
Loyola University Chicago School of Law is organizing a Constitutional Law Colloquium at the Philip H. Corboy Law Center, 25 East Pearson Street, Chicago, IL 60611.
This will be the fifth annual Loyola constitutional law colloquium. Once again, we hope to attract constitutional law scholars at all stages of their professional careers to discuss current projects, doctrinal developments in constitutional law, and future goals. The conference will bring together scholars to discuss their works-in-progress concerning constitutional issues, such as, but not limited to Free Speech, Substantive Due Process, Equal Protection, Suffrage Rights and Campaign Finance, Process Oriented Constitutionalism, Constitutional Interpretation, Constitutional Theory, National Security and Constitutional Rights, Due Process Underpinnings of Criminal Procedure, Judicial Review, Executive Privilege, Suspect Classification, Free Exercise and Establishment of Religion, and Federalism. As in years past, we will provide many opportunities for the vetting of ideas and for informed critiques. Submissions will be liberally considered, but participation is by invitation only. Presentations will be grouped by subject matter.
Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California-Irvine School of Law, will be the keynote speaker.
Titles and abstracts of papers should be submitted electronically to email@example.com no later than June 15, 2014.
The Law Center is located on Loyola's Water Tower campus, near Michigan Avenue's Magnificent Mile, Lake Michigan, Millennium Park, the Chicago Art Institute, and Chicago Symphony Center.
Participants’ home institutions are expected to pay for their own travel expenses. Loyola will provide facilities, meals, and support.
There are numerous reasonably priced hotels within walking distance of the Loyola School of Law and Chicago's Magnificent Mile.
Heather Figus, ConstitutionLaw@law.edu
Loyola Constitutional Law Faculty:
Professor Diane Geraghty, A. Kathleen Beazley Chair in Child Law
Professor Barry Sullivan, Cooney & Conway Chair in Advocacy
Professor Juan F. Perea
Professor Alan Raphael
Professor Allen Shoenberger
Professor Alexander Tsesis
Professor Michael Zimmer
Looks likea great opportunity for those of us doing work at the intersection of labor, employment, and constitutional law.
April 1, 2014 in Conferences & Colloquia, Disability, Employment Common Law, Employment Discrimination, Labor Law, Public Employment Law, Religion, Scholarship | Permalink | Comments (0) | TrackBack (0)