Saturday, March 17, 2007

Union-Friendly Governor Takes Over in Colorado

Colorado Another example of why it matters who is Governor when it comes to the treatment of organized labor.  Exhibit "A" courtesy of the AFL-CIO Blog:

Colorado state employees will once again be able to pay their union dues through payroll deduction after Gov. Bill Ritter (D) signed an executive order yesterday that restores the check-off that former Republican Gov. Bill Owens banned in a 2001 executive order.

And with Scott Moss coming to the University of Colorado Law School this Fall, it's just a good all-around week for workers in Colorado.

PS

March 17, 2007 in Union News | Permalink | Comments (1) | TrackBack (0)

Friday, March 16, 2007

Bagenstos on Implicit Bias

Sbagenstos Sam Bagenstos has just posted on SSRN his article Implicit Bias, Science, and Antidiscrimination Law.  Here's the abstract:

In recent years, scholars of antidiscrimination law have increasingly come to focus on the problem of "implicit" or "unconscious" bias.  They have pointed to an expanding mass of evidence from experimental psychology that appears to demonstrate the pervasiveness of unconscious bias on the basis of race, gender, and other legally salient characteristics, and that raises troubling questions about the effects of that bias on legally relevant behaviors.  Now, however, the arguments for using antidiscrimination law to respond to implicit bias face a new, more fundamental challenge. Gregory Mitchell and Philip Tetlock contend, in a recent piece, that the psychological research purporting to demonstrate the pervasiveness of implicit bias "fails to satisfy key scientific tests of validity." Mitchell and Tetlock make some effective points.  But this essay, which is framed as a response to their piece, contends that Mitchell and Tetlock's argument does not at all undermine the case for taking account of implicit bias in antidiscrimination policy.  Even if one accepts every "scientific" critique they offer of the implicit bias literature - and there is substantial dispute within psychology on some of those critiques - the case for using the law to respond to the problem of implicit bias remains strong.  In the end, many of Mitchell and Tetlock's critiques of implicit bias research rest, not on any "scientific" ground, but on normative assumptions about what kinds of discrimination the law should seek to prevent and punish.  Mitchell and Tetlock's argument thus does not demonstrate the scientific weakness of implicit bias research; instead, it points the way to the normative work to which advocates of the implicit bias law-reform project must turn their attentions.

rb

March 16, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Moss to Colorado

Scottmoss My good friend and fellow blogger, Scott Moss, has announced that he is leaving Marquette Law to join the University of Colorado Law School this Fall.  Scott teaches Employment Discrimination, Employment Law, Constitutional Law, Law & Economics, and a Seminar on Class Actions.  He is one of the few feminist law & economic scholars out there!

Scott joined the Marquette faculty in 2004 after six years as an attorney in New York City. After a year as a law clerk to U.S. District Judge Constance Baker Motley (S.D.N.Y.), he was a plaintiff's employment lawyer in New York City at Outten & Golden, the largest plaintiff-side employment law practice in the country. At O&G, he represented employees in individual and class action litigation of discrimination, harassment, and minimum/overtime wage claims. He also has argued and briefed appeals at the federal and state level.

In his three years at Marquette, Scott has published a substantial amount of scholarship, including:

  • Prisoners and Students and Workers - Oh, My! A Cautionary Note about Excessive Institutional Tailoring of First Amendment Doctrine, 54 U.C.L.A. L. Rev. ___ (forthcoming mid-2007).

  • Illuminating Secrecy: A New Economic Analysis of Confidential Settlements, 105 Mich. L. Rev. __ (forthcoming spring 2007).
  • Against "Academic Deference": Keeping Title VII Alive to Redress Academic Discrimination, 27 Berkeley J. Emp. & Lab. L. 1 (2006).
  • Where There's At-Will, There Are Many Ways: Redressing the Increasing Incoherence of Employment At-Will, 67 U. Pittsburgh L. Rev. 295 (2005).
  • Congratulations to Scott on his big move!

    PS

    March 16, 2007 in Faculty News | Permalink | Comments (1) | TrackBack (0)

    Dau-Schmidt on Workplace Transformation

    Kdauschm_2







    Ken Dau-Schmidt has posted on SSRN a pair of articles/essays describing broadly the transformation of the American Workforce:

    [T]his essay . . . set[s] forth an empirical outline of the contemporary individual contract regime of workplace governance regime in the United States.  Because of the breadth and diversity of the individual contract regime, this description cannot be exhaustive.  We focus almost exclusively on what is known about the contents of individual contracts for employment and recent common law and statutory restrictions on the employment at-will doctrine.  Where appropriate we will make comparisons with the employee rights and procedures that exist under workplace governance through collective bargaining.  In this way we hope to provide a brief description of what is currently known about the contours of this regime and how it varies from the regime of collective bargaining in order to provide a basis for further research.

    Why do we see such innovation, even excitement, in the American labor movement, at a time when, by all objective measures, the movement is flat on its back?  I argue that recent changes in the American labor movement represent the beginning of its adaptation to changes in the employment relationship that have occurred as we have moved from production organized according to industrial technology, to production organized under the new information technology in the global economy.  A previous change from artisanal to industrial methods of production around the beginning of the twentieth century presaged great change, and growth, in the American labor movement.  Similarly, as the American economy transitions from industrial methods of production to adopt new structures utilizing information technology, the American labor movement is being prompted to organize and undertake collective action in new ways, that will hopefully lead to its resurgence.  The innovations in the American labor movement to adjust to this change in technology and the employment relationship are what account for the current excitement in the movement.

    rb

    March 16, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

    Thursday, March 15, 2007

    Employment Law Work Songs to Use in Class!

    Befort_stephen_2006_152x190 Steve Befort (Minnesota), the hippest guy in the labor and employment law professor world (barring Alex Long maybe), writes:

    For a number of years I have thought about playing selected work songs in the classroom prior to the beginning of class. During the fall 2006 semester, I finally pulled it off. I copied songs onto audio discs and embedded links to the songs on my power point slides. I would then play one of the songs at about 3-5 minutes before the start of each Employment Law class session. I tried to match up songs with the subject matter of the particular class (e.g., Allentown and plant closings), but most of the time I figured that any song about work would do. I had a few technological miscues along the way, but for the most part it worked out quite well.  The students generally seemed to like it, or were at least mildly amused. I asked for student song ideas and got several suggestions, which resulted in a playlist that was not as badly dated as initially compiled.

    Now that sounds like one fun employment law class. Here is the list of the songs employed (get it? (moan)).

    Steve would like to hear if others have any suggestions to add to the list and would be happy to share technical information about how to embed links on power point slides.

    PS

    March 15, 2007 in Teaching | Permalink | Comments (6) | TrackBack (0)

    8th Cir: PDA Does Not Cover Contraception

    Scales There is an important decision out today from the 8th Circuit in a class action suit concerning whether an employer's health care plan violates the Pregnancy Discrimination Act (PDA) by not covering contraception. 

    In re: Union Pacific Railroad Employment Practices Litigation, 06-1706 (8th Cir. Mar. 15, 2007), discusses a health plan offered by the railroad which excludes from coverage "both male and female contraceptive methods, prescription and non-prescription, when used for the sole purpose of contraception."  A group of 1500 women sued, claiming that the exclusion violated the PDA.  The District Court in Nebraska agreed, "finding that Union Pacific’s failure to cover prescription contraception constitutes a violation of Title VII, as amended by the PDA," and more specifically, because “it treats medical care women need to prevent pregnancy less favorably than it treats medical care needed to prevent other medical conditions that are no greater threat to employees’ health than is pregnancy.”

    The 8th Circuit reversed in a 2-1 decision, finding:

    Following Krauel, we hold that contraception is not “related to” pregnancy for PDA purposes because, like infertility treatments, contraception is a treatment that is only indicated prior to pregnancy. Contraception is not a medical treatment that occurs when or if a woman becomes pregnant; instead, contraception prevents pregnancy from even occurring.

    Judge Bye had this to say in dissent:

    When one looks at the medical effect of Union Pacific’s failure to provide insurance coverage for prescription contraception, the inequality of coverage is clear. This failure only medically affects females, as they bear all of the health consequences of unplanned pregnancies. An insurance policy providing comprehensive coverage for preventative medical care, including coverage for preventative prescription drugs used exclusively by males, but fails to cover prescription contraception used exclusively by females, can hardly be called equal.
    It just isn't so.

    I have to say that I agree with Judge Bye on this one, but I wonder whether if this claim had been filed as a disparate impact claim it would have had a greater chance of success?  Assuming a disparate impact could be shown if we treat this employment practice as neutral, would the employer have a business necessity for not covering contraception? Would the  cost of the plan be that much different if it did?

    In any event, I would expect to see motions for rehearing and/or en banc review in the near future.

    Hat Tip:   How Appealing

    PS

    March 15, 2007 in Employment Discrimination | Permalink | Comments (5) | TrackBack (0)

    Wednesday, March 14, 2007

    Could Friday Be ERISA Day at the Supreme Court?

    4united_states_supreme_court_112904 SCOTUSblog is tracking those cases that have a reasonable chance of having cert. being granted at the Supreme Court's March 16th conference.  Among them are two interesting ERISA cases from different parts of the employee benefit world:

    1.    Louisiana Health Service and Indemnity Co. v. Rapides Healthcare System, 06-839.  This case from the 5th Circuit presents the question of whether ERISA preempts a state law that authorizes an action to collect benefits previously paid to a plan participant and establishes a remedy outside ERISA's exclusive civil enforcement scheme, because the state law conflicts with the cause of action for benefits set forth in ERISA Section 502(a)(1)(B).

    2.    Xerox Corp. Retirement Income Guarantee Plan v. Miller, 06-962.  This case from the 9th Circuit presents the question of whether ERISA permits a pension plan, when calculating an employee's accrued pension benefit at retirement, to apply an offset for the benefits the employee receives before retirement from other sources by valuing those benefits in the same way as benefits due at retirement.

    Will ERISA continue to garner inordinate attention from the highest court in the land?  We shall soon find out.

    PS

    March 14, 2007 in Pension and Benefits | Permalink | Comments (1) | TrackBack (0)

    Pensions and Global Warming?

    Algore_2 I'm all for supporting efforts to decrease global warming, but former Vice President Gore clearly was not thinking of ERISA when speaking at a pension conference in the UK.

    Yahoo! News, via Reuters, reports:

    Former U.S. vice-president Al Gore told a pensions conference on Wednesday that trustees must include the "greatest challenge to mankind" in their thinking -- global warming.

    Speaking at the National Association of Pension Funds (NAPF) investment conference in Edinburgh, Gore urged pension fund managers to look for ways to "systematically integrate" sustainability into their investment-making decisions.

    In a keynote address entitled "Global pensions and investment challenges," Gore said a greater emphasis on sustainable practices would boost pension fund returns.

    Now granted this speech took place in the United Kingdom.  But let's suppose for a second that pension plan fiduciaries in the United States took Gore's advice to heart.  Could such an investment strategy lead to breach of fiduciary duty claims being filed against pension fiduciaries under ERISA?

    When it comes to so-called "social investing," the DOL is very clear that pension fiduciaries may only invest in such a conscientious manner if they can show that such an approach leads to as equally good investment returns as other approaches.  If not, fiduciaries are not acting in the best interests of plan participants and not acting like a prudent fiduciary should.

    So if Gore is wrong and investing in sustainable practices leads to lower-than-average investment returns for pension plans, pension fiduciaries may well benefit from the good karma associated with saving the environment, but they may at the same time be personally liable to make up losses to the plan caused by their fiduciary breach.

    PS

    March 14, 2007 in Pension and Benefits | Permalink | Comments (3) | TrackBack (0)

    Wagner Results -- Complete

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    Wagner Champion Team

    • Michigan State University College of Law (Sean Caruthers & Susan Lumetta (pictured above), coached by Robert Filiatrault and assisted by Michael Zimmer)

    Wagner Runner-Up Team

    • Northern Kentucky University, Salmon P. Chase College of Law (Tiffany Yahr, Tim Davis, & Marci Palmieri (on brief), coached by Lawrence Rosenthal)

    Best Oral Advocate, Final Round

    • Sean Caruthers, Michigan State University College of Law

    Best Preliminary Round Team

    • Michigan State University College of Law

    Top Two Preliminary Round Oral Advocates

    • Kathleen Dodd from University of Tennessee School of Law
    • Sean Caruthers from Michigan State University College of Law

     Best Petitioner Brief

    • Loyola University Chicago School of Law
    • Michigan State University College of Law

    Best Respondent Brief

    • Northern Kentucky University, Salmon P. Chase College of Law
    • University of San Francisco School of Law
    • Texas Weslayan University School of Law

    rb

    March 14, 2007 in Teaching | Permalink | Comments (0) | TrackBack (0)

    Friedman Receives Award from Federal Judicial Center

    Jfriedman_1 Congratulations to Joel Wm. Friedman (Tulane) for his selection by the Federal Judicial Center to receive the prestigious Judge John Brown Award.  The award recognizes those who have made outstanding contributions to the Center's mission of judicial education.

    rb

    March 14, 2007 in Faculty News | Permalink | Comments (0) | TrackBack (0)

    Tuesday, March 13, 2007

    Are Law Firm Reverse Discrimination Suits Around the Corner?

    Aei Rob Rogers at the BLT Blog writes about yesterday's morning panel discussion at the American Enterprise Institute entitled "Are Law Firms Breaking the Law? Racial and Gender Preferences in Attorney Hiring and Promotion."  He notes that to the extent that such practices are being employed to meet the expectations of clients of having a diverse group of lawyers, they appear to be suspect under Title VII and Section 1981.

    A questions from Rob and a comment from me. Rob's question is:

    If the legal restrictions against firms complying with demands of Wal-Mart and other clients for a certain racial make-up are as clear as argued, when are the lawsuits going to start? During my years as an employment litigator, I saw employees eager to bring Title VII claims, yet thus far law-firm associates are not suing. How long is this relatively placid situation going to last?

    My comment is that I'm not sure how clear the legal restrictions are in light of voluntary affirmative actions cases like Weber and Johnson, which both provide for the permissibility of such race and gender AA plans under certain conditions.  It is not clear whether those conditions can be met in the law firm context, but I think there is at least a reasonable argument. 

    Of course, this argument is only in play if law firms are willing to admit that they are engaging in such voluntary affirmative action programs.  If not, and race and gender considerations are the motivating factor behind law firm hiring decisions on an ad hoc and irregular basis, the only thing keeping reverse discrimination suits being brought by whites and men may be the potential backlash such associates would face from other law firms as perceived troublemakers.  Of course, it might also be hard to isolate race or gender as the determinative or motivating factor leading to the hiring of a given minority or female candidate in a specific instance and it would seem that both pattern and practice and disparate impact claims are not ideally suited for situations where males and whites still make up the majority of law firm employees.

    In any event, as Rob hints at, with increased attention being paid to this issue by AEI and other groups, I see the incidence of such lawsuits inevitably increasing in the near future.

    PS

    March 13, 2007 in Commentary | Permalink | Comments (2) | TrackBack (0)

    Major Shipyard Strike in Mississippi: "If We Can Survive Katrina, We Can Survive This"

    Hurricane_katrina The impact of Hurricane Katrina on my home state of Mississippi has taken its toll not only on homes, businesses, and lives lost, but also on the prices of essential items like food and gas.  One of the consequences is that one of the largest unions in the state has gone on strike to protest the need for better wages and benefits in light of what Katrina wrought.

    The New York Times reports:

    The long arm of Hurricane Katrina has pushed thousands off the job and on strike at one of the nation’s biggest shipyards [in Pascagoula, Mississippi], workers and union officials say.      

    On Thursday, nearly 7,000 workers went on strike at the Ingalls shipyard, owned by Northrop Grumman, which builds ships for the Navy. On the picket line Monday, strikers said they were demanding better wages and benefits to make up for sharp post-Katrina increases in the price of everything from milk to gas to rent, which they said are bringing family finances to the breaking point.

    The walkout here is believed to be the first major strike related to Hurricane Katrina, which continues to disrupt many aspects of life up and down the Gulf Coast. Few places were as hard-hit as this small industrial town, where the water crept halfway up downtown and the beachfront was wiped out, and workers spoke Monday of losing homes, cars and a way of life to the storm.

    *************************************************************************************
    A company spokesman said Monday that there were no plans for negotiations. In a statement, Northrop Grumman said its offer was “fair and competitive,” and noted that other company plants in the region had accepted it. The company added: “It was our desire that this labor agreement address the financial challenges of Katrina, and we believe the proposed contract did just that.” Workers sharply disputed that contention, however.

    I'm sure that Northrop Grumman has done its part over the past two years to help its workers recover from the storm, but the time has come to do more.  It is not enough to offer a wage increase which is largely wiped out by an increase in health insurance premiums. 

    Take some of that money from the federal government for building Navy ships and divert it to workers to help them put their lives back together.  Think of it as diverting money from fighting the war in Iraq to providing domestic hurricane relief or think of it as diverting money from executive compensation to helping workers pay for the essentials of life.

    Hat Tip:    Megan McGrew

    PS

    March 13, 2007 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

    WVU Symposium on Coal Mine Safety

    Wvu West Virginia University College of Law's upcoming law review symposium will be looking at coal mine safety issues following the Sago disaster (more info is available at this link).  Prof. Anne Marie Lofaso, one of the faculty advisors for the symposium,  writes:

    This Wednesday, March 21, 2007, the West Virginia University College of Law is kicking off its 2007-2008 Law Review Symposium: “Thinking Outside of the Box: A Post-Sago Look at Coal Mine Safety.” Precipitated by the Sago disaster, where 12 miners lost their lives possibly due to federal and state occupational health and safety violations, the Symposium is dedicated to examining the critical, proactive role that labor lawyers, judges, mediators and others in the legal system can serve in working across all stakeholder interests to hasten the deployment of potentially life-saving technologies and techniques. In particular, the Law Review asks: What is or should be the law’s role in protecting coal miners, who undoubtedly work in dangerous conditions? The Symposium will take place on several days over three semesters, concluding in spring 2008 with a roundtable discussion of experts in various fields from various perspectives brainstorming about the issues of coal mine safety. Papers will be published in the West Law Review (Fall 2008).

    For questions about this year's program, contact Brienne Greiner, Editor-in-Chief, West Virginia Law Review, at 304-293-2301.  For information about this year's program or to participate in next year's program, please contact Prof. Anne Marie Lofaso (WVU College of Law) at 304-293-7356, Prof. Pat McGinley (WVU) at 304-293-6823, or Mary Claire Johnson (WV L.Rev. Editor-in-Chief elect) at 304-293-2301.

    This sounds like an interesting event on an important and timely topic.  I look forward to reading the papers.

    -JH

    March 13, 2007 in Conferences & Colloquia | Permalink | Comments (0) | TrackBack (0)

    Sexual Harassment of Men on the Rise

    Graph_up Yahoo! HotJobs is reporting that cases of sexual harassment brought by men are increasing:

    Defying assumptions about sexual harassment in the workplace, a record percentage of men reported being harassed by male colleagues last year, according to the Equal Employment Opportunity Commission.

    Cases filed by men made up 15.4 percent of the 12,025 sexual harassment charges in fiscal year 2006, compared to 14.3 percent in 2005 and 11.6 percent a decade ago, according to the EEOC.

    But these men are generally not being harassed by women:

    Although the statistics don't reveal whether the alleged harassers of men also are male, they typically are -- it's rare for a man to file charges against a female coworker or supervisor, says EEOC spokesman David Grinberg.

    It seems that much of this increase in male-on-male sexual harassment cases can be traced to not only the Supreme Court's watershed same-sex harassment decision in Oncale in 1998, but to the fact that more courts are willing to protect harassed men under some form of stereotype sexual discrimination of the Price Waterhouse variety.  In cases like Nichols v. Azteca Restaurant, 256 F.3d 864 (9th Cir. 2001), the courts have extended the protections of Title VII to those who are harassed because they do not live up to the gender stereotypes of what it is to be male.

    There also might be something else going on here, at least at the federal level.  Because Title VII does  not include sexual orientation as one of the protected classifications, courts are becoming increasingly creative, as in Rene v. MGM Grand Hotel, 305 F.3d 1061 (9th Cir. 2002) (en banc), in extending employment discrimination protections to homosexual employees under different theories of law.

    Hat Tip:  Miriam Cherry

    PS

    March 13, 2007 in Employment Discrimination | Permalink | Comments (4) | TrackBack (0)

    Euphemisms at Work or a Rock with Arms

    Euphemisms Slate.com has a running podcast series on euphemisms for the different type of workers one finds in their workplace:

    You know that lazy, boneheaded colleague in the next cubicle? The one who should have been fired long ago, but somehow continues to sprinkle mediocrity on everything he touches? In January, we asked you to help us come up with good euphemisms for these people. Now our audio euphemism contest curator, language columnist Barbara Wallraff, is back with some of her favorite submissions.

    ************************************************************************
    And for our next listener contest, Barbara is looking for euphemistic ways of saying that someone is, you know, totally hot. For example, there's the HR specialist who warned employees against telling co-workers they looked attractive, suggesting as an alternative: "You look very professional today." Of course, the listener who sent us this story said professional quickly became a euphemism for beautiful around his office.

    I have to admit I think all of this treads on the funny/lame line, but I thought what the heck?  If you are interested in listening to some of these euphemisms or want to submit one for the next contest, go to the Slate link above.

    Hat Tip:   Dana Nguyen

    PS

    March 13, 2007 in Commentary | Permalink | Comments (0) | TrackBack (0)

    Recently-Published Scholarship

    Eichorst Konle_1







    Comparative Labor Law & Policy Journal
    Volume 28, Number 1, Fall 2006

    Articles

    • Werner Eichhorst (left) & Regina Konle-Seidl (right), The Interaction of Labor Market Regulation and Labor Market Policies in Welfare State Reform, p. 1.
    • David E. Pozen, The Regulation of Labor and the Relevance of Legal Origin, p. 43.
    • Paul Teague, New Employment Times and the Changing Dynamics of Conflict Resolution at Work: The Case of Ireland, p. 57.

    rb

    March 13, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

    Monday, March 12, 2007

    California Comfort Animal ADA Suit

    Dog_tired Sticking with the ADA theme on the blog for a moment, NewsDash from PlanSponsor.com has the following interesting summary of a case involving the Americans with Disabilities Act (ADA) and the use of comfort animals at work:

    MALTESE "FINDING."  Jurors on Friday awarded $45,000 to a woman who said she was fired for bringing her dog to work as a way to ease her anxiety and depression.  According to the Sacramento Bee, Chris Storm argued in her lawsuit that the Consumers Self Help Center, a mental health clinic, and its director, Meghan Stanton, had retaliated against her because she asked to keep Lacey, a 4-year-old Maltese, in her office (Stanton had testified that the dog was not properly house trained, and that its waste was an office hazard).  However, they rejected Storm's claims that she was the victim of disability discrimination.

    Two thoughts: (1) ironic (sad?)  that the defendant was a mental health clinic; and (2) this is a classic split the baby case: no on discrimination, but yes on retaliation.  A way for the jurors to award something to a sympathetic plaintiff (though, just to be clear, I don't know enough about the case to say whether the retaliation claim  was meritorious).

    Apparently, because the jurors did not find there was a mental disability, the issue of whether those suffering from anxiety and depression should be allowed to have comfort animals in the workplace was never reached.

    The complete article can be found here.

    PS

    March 12, 2007 in Employment Discrimination | Permalink | Comments (2) | TrackBack (0)

    Selmi on Interpreting the Americans with Disabilities Act: A Case Study in Pragmatic Judicial Reconstruction

    Selmi_m_8 Michael Selmi (GW, visiting BU) has just posted on SSRN his most recent article: Interpreting the Americans with Disabilities Act: A Case Study in Pragmatic Judicial Reconstruction.

    Here's the abstract:

    This article challenges the prevailing academic consensus regarding the Supreme Court's interpretation of the Americans With Disabilities Act ("ADA"). In a series of cases over the last decade, the Supreme Court has sharply limited the scope of the statute by narrowly defining what constitutes a disability, and most commentators have attributed the cases to a judicial backlash or a lack of empathy for the disabled. This article offers a counter narrative.

    Although the Supreme Court's interpretations have plainly narrowed the scope of the statute, and without regard to congressional intent, I suggest that the decisions are largely consistent with congressional expectations, as well as social norms regarding who ought to be defined as disabled. The ADA was passed under unusual circumstances. Despite overwhelming congressional support, there was broad indifference to the substance of the legislation, and the absence of a substantial social movement led to a broadly worded statute that lacked a strong commitment to expanding the definition of disability. The Supreme Court has subsequently rewritten the statute to protect its own institutional interests and to bring the statute in line with public expectations. In the last part of the paper, I analyze the cases in the context of various theories of statutory interpretation, including positive political theory which identifies the Supreme Court as a strategic player seeking to impose its own preferences whenever it can. In the context of the ADA, these preferences were primarily institutional rather than political, although they also have furthered the interests of the business community, and the absence of a strong disability rights social movement has allowed the Court's decisions to avoid a congressional override.

    Mike additionally writes this to us about his new article: "[It] takes a critical look at the development of the ADA in the Court -- and one that I think differs significantly from most existing scholarship, as I find the Court's decisions highly predictable, and for the most part, not all that bad."

    Provocative and definitely worth a read.  Check it out.

    PS

    March 12, 2007 | Permalink | Comments (0) | TrackBack (0)

    Recently-Published Scholarship

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    Articles

    • Richard Carlson (photo above), The Small Firm Exemption and the Single Employer Doctrine in Employment Discrimination Law, 80 St. John's L. Rev. 1197 (2006).
    • Jeffrey P. Bauman, Recent Developments in the Law: Public Sector Labor Relations, 44 Duquesne L. Rev. 419 (2006).

    Comments & Notes

    • Christina J. Fletcher, Are You Simply Sleeping Your Way to the Top or Creating an Actionable Hostile Work Environment? A Critique of Miller v. Department of Corrections in the Title VII Context, 80 St. John's L. Rev. 1361 (2006).

    rb

    March 12, 2007 in Scholarship | Permalink | Comments (0) | TrackBack (0)

    Compiling Data for 2006-2007 Workplace Prof Faculty Moves

    Laptop_guy_4 Like last year, I am now in the process of collecting all significant faculty news and moves for the 2006-2007 academic year for the labor and employment law professor community.

    I will post shortly after April 2nd (the day after the AALS drop-dead date for acceptance of visiting offers) a list of 2006-07 Workplace Prof moves in these categories:

    • Entry-Level Hires
    • Promotions and Tenures
    • Lateral Moves
    • Visits
    • Retirements

    Please email me information for inclusion on this list.  Thank you in advance for your help in this endeavor.

    PS

    March 12, 2007 in Faculty News | Permalink | Comments (1) | TrackBack (0)