Saturday, October 18, 2008
- John R. Graham, Si Li, & Jiaping Qiu, Managerial Ability and Executive Compensation (101).
- Orly Lobel, Intellectual Property and Restrictive Covenants (96).
- Jonah B. Gelbach, Jonathan Klick, & Lesley Wexler, Passive Discrimination: When Does It Make Sense to Pay Too Little? (95).
- Dwight Steward (photo above) & Stephanie Botello, Back Pay and Front Pay Calculations in Employment Termination Cases: Accounting for Re-Employment and Mitigation Efforts (87).
- Ian L. Dew-Becker, How Much Sunlight Does It Take to Disinfect a Boardroom? A Short History of Executive Compensation Regulation (85).
- Robert Flannigan, Fiduciary Mechanics (82).
- Randall S. Thomas, International Executive Pay: Current Practices and Future Trends (82).
- Orly Lobel, National Regulation in a Global Economy: New Governance Approaches to 21st Century Work Law (63).
- Kamala Dawar, Assessing Labour and Environmental Regimes in Regional Trading Arrangements (58).
- Ann M. Lousin, Will Illinois Hold a Constitutional Convention? (56).
Friday, October 17, 2008
Here is one you dont hear everyday. A white woman claiming she was discriminated against because she is white is suing the fast-food chain Jack in the Box in a law suit filed by the Equal Employment Opportunity Commission in federal court. Francis Griffith called the company's ethics hot line and lodged a complaint.
Griffith was called "white trash," stupid white b----," among the many insults hurled at her by co-workers, according to the law suit. A black female co-worker allegedly told her to kill her unborn baby because it was mixed.
One of the employees was allegedly fired for making racial remarks. However, according to Griffith, the harassment continued after the firing.
Since employers are liable for co-worker harassment based on a neglegence standard, that is when the employer knew or should have known the harassment was going on but failed to stop it, Jack in the Box might have some problems if the harsassment continued after the employee was fired. It seems that Jack in the Box may be serving up more than high cholesterol with their burgers and fries.
Wal-Mart’s continued campaign of punishing workers who exercise their fundamental and constitutional right to join a union has raised its ugly head yet again. This time, Wal-Mart has announced it is closing the garage shop where 9 employees in Quebec joined a union and were awarded a collective agreement settlement that included a raise from $9.25 per hour to $15.94 per hour over a couple of years.
And just in case you though Wal-Mart was a heartless employer, it now indicates that it is offering the workers jobs at other stores at a much lower, non-union rate. Get the message?
Although as David points out we can expect a new unfair labor practice complaint to be filed by the UFCW challenging these cases, similar issues are already on their way to the Supreme Court relating to the last time Wal-Mart closed a store and fired all of its unionized employees in Quebec.
If Wal-Mart loses and fighting unionization becomes costly, Wal-Mart's subsequent actions in Canada may provide some indication to how Wal-Mart might respond to new American labor laws in the coming years.
Thanks to Ross Runkel for providing this summary of an interesting new Garcetti public employee free speech case, Posey v. Lake Pend (9th Cir 10/15/2008), considering whether the determination of if an employee is speaking pursuant to his official duties is a question of law or fact. Of course, this is an important question because it goes to whether these cases can be disposed of by the court on summary judgment:
Posey sued the public employer, asserting a claim for 1st Amendment retaliation. The trial court granted summary judgment in favor of the employer. The 9th Circuit reversed.
The court framed the primary issue on appeal was "whether, following the Supreme Court's recent decision in Garcetti v. Ceballos, 547 IS 410 (2006), the inquiry into the protected status of speech in a First Amendment retaliation claim remains a question of law properly decided at summary judgment or instead now presents a mixed question of fact and law."
The court held that "following Garcetti, the inquiry into whether a public employee's speech is protected by the First Amendment is no longer purely legal and presents a mixed question of fact and law." The court explained, "the determination whether the speech in question was spoken as a public employee or a private citizen presents a mixed question of law and fact." The court reasoned, "[b]ecause the task of determining the scope of a plaintiff's job responsibilities is concrete and practical rather than abstract and formal, we are confident that a factual determination of a plaintiff's job responsibilities will not encroach upon the court's prerogative to interpret and apply the relevant legal rules."
The court noted that there is a split among the circuits on this issue, and that it was adopting the approach taken by the 3rd, 7th, and 8th Circuits. The 5th, 10th, and DC Circuits have adopted a contrary approach.
The finding of this case is good news for public employees with free speech claims. By finding the Garcetti questions represents a mixed question of law and fact, the court has taken the decision out of the hands of the judge and placed it squarely in front of the jury. This is important not only because juries tend to be more sympathetic to the plight of these public employees, but more importantly because such a characterization is consistent with the fact-sensitive inquiry that must be done under Garcetti.
Though many courts have missed the boat in this regard, most specifically in federal employee cases decided by the Federal Circuit and MSPB, it is necessary for the job duties of the employee to be closely scrutinized to determine whether they are speaking in accordance with those duties. There is no formalistic way to go about this.
Because of the split of the circuits, and because most of the circuits have now considered the question, there might be a chance to clarify the Garcetti holding on future Supreme Court dockets.
David Doorey (York Univ.) has posted on SSRN his new article: Union Access to Workers During Union Organizing Campaigns: A New Look Through the Lens of Health Services.
Here is the abstract:
The Supreme Court of Canada ruled in the recent Health Services decision that the Canadian Constitutional protection of 'freedom of association' should be interpreted to provide at least as much protection of associational rights as provided by international conventions that Canada has ratified (the "Equivalency Requirement"). However, the Court then made the Equivalency Requirement conditional upon a second requirement when it ruled that only government interference that amounts to a "substantial impairment" of freedom of association is protected (the "Substantial Impairment Requirement"). Therefore, Canadian laws that provide less protection for freedom of association than ratified international conventions will be Constitutionally valid provided they do not 'substantially interfere' with freedom of association.
This paper explores this peculiar result using the issue of union access to employer property for the purpose of organizing. In doing so, the article compares the approaches to union access to employer property under Canadian, American, and British law, as well as the approach of the ILO's supervisory bodies interpreting ILO Convention 87, which Canada has ratified.
I was on a panel with David in Montreal at the Law & Society Associational Annual Meeting last May when he presented this paper, and it is filled with interesting nooks and crannies (I guess that makes it like an English Muffin). In any event, the comparison to American law in this area is quite fascinating and the Canadian approach provides an illustration of the advantages and pitfalls in limiting union access to workplace for organizational purposes.
Thursday, October 16, 2008
Paul Mollica's Daily Developments in EEO blog has a post about an interesting Tenth Circuit opinion on the ADA. The court decided 2-1 that driving was not a major life activity in a case that will have a very short-lived effect, beyond the employee there, of course. The case, Kellogg v. Energy Safety Services, Inc., involved a woman who was an oilfield safety technician in Wyoming. As you may know, Wyoming is a huge state geographically, with not that large a population. As an oilfield safety technician the plaintiff had to drive sometimes two hours to work site. In 2005, the plaintiff started experiencing seizures and was diagnosed with epilepsy. She was unable to drive, and her employer discharged her as a result.
The trial court had found that driving was a major life activity, at least in Wyoming, given the geographical realities. The majority reversed that issue, although it remanded to the trial court for further proceedings on whether the plaintiff was regarded as disabled. In reaching its conclusion, the majority said,
It cannot be disputed that driving is an extremely important daily activity to many, even most, adults. Without the ability to drive, it may be very difficult to care for oneself or to work. Indeed, we have recognized that the activity of “[c]aring for one’s self encompasses normal activities of daily living; including . . . driving . . . .”. . . But driving is, literally, a means to an end. The activities enumerated by the EEOC—“caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working”—are all profoundly more important in and of themselves than is driving. . . .To conclude, as did the district court, that driving is a major life activity because of its importance to the performance of other major life activities, such as caring for oneself or working, would shortcircuit the analysis in determining whether one of those major life activities has been substantially limited.
The dissent criticized the reliance on the EEOC's regulations but also noted that the list was not exclusive. Additionally,
It has been cogently observed that “there are compelling reasons to think that driving should qualify as a major life activity. Driving appears to be ‘of central importance to most people’s daily lives.’” . . . Census Bureau figures for 1995 showed that 91% of workers used an automobile to get to work, while figures for 2000 showed that approximately 85% of Americans aged fifteen and older were licensed drivers.
The impact of this decision is certainly felt by the parties (although the plaintiff also won an FLSA claim brought in conjunction, and so I would predict that rather than retry the ADA claim, the parties will settle), this won't survive the amendments to the ADA, which clarify the breadth of the definition of disability. As a former appellate lawyer, I was a little surprised that the court didn't address what must be the underlying argument that controlling her ability to remain conscious (that may not be quite the right term) was the major life activity which was impaired, and it was this impairment which, in turn, impaired her ability to drive, which, in turn, impaired her ability to work.
Heinsz, Nolan & Bales: Cases and Materials on Labor Law: Collective Bargaining in a Free Society, Sixth Edition
Congratulations to Dennis Nolan (South Carolina (emeritus)) and our own Rick Bales (N. Ky./Chase) on the publication of the Sixth Edition of Cases and Materials on Labor Law: Collective Bargaining in a Free Society (the late Timothy J. Heinsz, Dennis R. Nolan, and Richard A. Bales).
From the West product announcement:
Heinsz, Nolan and Bales's Cases and Materials on Labor Law: Collective Bargaining in a Free Society, Sixth Edition is publishing in November and will be available for spring 2009 class adoptions. This edition provides a deeper understanding of labor law doctrines by presenting the historical, social, political, and economic contexts in which they arose.
Also publishing in November: Statutory Supplement to Cases and Materials on Labor Law: Collective Bargaining in a Free Society, Sixth Edition.
Check it out!
Senn on Proposing a Uniform Remedial Approach for Undocumented Workers Under Federal Employment Discrimination Law
Here is the abstract:
I am glad to see this article does not go completely the way of Hoffman Plastics in the NLRA context, but I wonder if the suggested proposal will make it less likely for undocumented workers to vindicate their rights under Title VII and other anti-discrimination laws.
Given the recent influxes of undocumented workers who have entered the United States in order to obtain employment, the issue of their remedial rights under federal employment discrimination law has become highly significant. Under Title VII of the Civil Rights Act, the Americans with Disabilities Act, and/or the Age Discrimination in Employment Act, these remedies could include back pay, front pay (in lieu of reinstatement), compensatory damages, punitive damages, liquidated damages, and/or reasonable attorneys' fees, as applicable.
At present, there is no uniform judicial approach for determining the monetary remedial rights of the millions of undocumented workers under these laws. Instead, courts have developed remedial approaches that span the spectrum in terms of scope. At one end is an approach that forecloses none of these remedies. In the middle is an approach that forecloses only some of these remedies. At the other end is an approach that forecloses all of these remedies.
This article proposes a Conditional Foreclosure Approach as the uniform approach for ascertaining the remedial rights of undocumented workers who pursue federal discrimination and/or retaliation claims. This new approach has two distinct features: (1) a disqualifying condition, which provides that an undocumented worker must have violated the employee-specific provisions (prohibiting fraudulent conduct in the employment and hiring processes) of the Immigration Reform and Control Act (IRCA) as a condition to any potential remedy foreclosure; and (2) limited remedy foreclosure, which forecloses an undocumented worker from, at most, the monetary remedies of back pay and front pay, while preserving all other remedies (such as compensatory damages, punitive damages, liquidated damages, and reasonable attorneys' fees).
This new approach represents a balanced, middle ground that draws from the many relevant sources on this issue, including: the IRCA and its Congressional philosophy and legislative history; Supreme Court precedent under the National Labor Relations Act; federal employment discrimination policy and purpose; and federal immigration policy and purpose. This new approach properly promotes both federal employment discrimination policy and federal immigration policy (without sacrificing either) and adequately holds accountable both employers and undocumented workers for unlawful conduct under the IRCA and/or federal employment discrimination law.
The Call for Participation for the 2009 Law and Society Annual (LASA) Meeting is now available at the LASA Website. As co-chair of the LASA Labor Collaborative Research Network - CRN 8, I am once again soliciting paper proposals and interest in being a panel chair or discussant . . . .
The 2009 Annual Meetings of Law and Society Association (LASA) will take place from Thursday, May 28 through Sunday, May 31, at the Grand Hyatt Hotel in the vibrant city of Denver.
The Conference theme is particularly appropriate for the focus of CRN 8: Law, Power, and Inequality in the 21st Century.
If you are interested, please contact Ellen about how the process works for setting up panels for the conference.
Panel or Paper Proposals or volunteering to chair or be a discussant are due to Ellen by Friday, Nov. 21.
The actual submission to the LASA is due December 8, 2008
I have attended this conference twice in the last three years and it is another great way to become familiar with the rich variety of scholarship in the labor and employment world. Additionally, there is the added bonus of meeting international scholars and learning about international and comparative labor and employment law.
Today's Wall Street Journal carries an article about the rise, over the last fifteen years or so, in the percentage of religious discrimination claims as compared to other types of employment discrimination claims. Many of the claims stem from employer refusals to accommodate the requests of Muslim employees for prayer breaks and time off for Muslim holidays. For the complete story, see Phred Dvorak, Religious-Bias Filings Up.
The BNA Daily Labor Report has news this morning that might make it easier for federal employees, government contractors, and SOX claimants to win on their whistleblowing claims against their employers:
The Labor Department's Administrative Review Board reaches a unanimous decision that Yellow Transportation Inc. did not violate the Surface Transportation Assistance Act when it gave a written warning to a truck driver who refused to drive beca use of fatigue, but the board members disagree on the test for determining whether retaliatory behavior by an employer is legally actionable (Melton v. Yellow Transp. Inc., DOL ARB, No. 06-052, 9/30/08 [released 10/9/08]).
Judge Beyer announces the board's decision that Ronald Joe Melton failed to show that Yellow's warning letter affected his pay or working conditions, and says that under ARB precedents, a warning letter without "tangible job consequences" was not actionable discipline or discrimination.
Judges Transue and Douglass concur in finding no STAA violation, but write separately that in the future they will apply the "materially adverse" standard announced in the U.S. Supreme Court's Burlington Northern decision to all of the whistleblower protection laws within the ARB's jurisdiction.
Although the claimant hear lost, the more important point is that the definition of an adverse employment action will be more broadly construed under the Title VII Burlington Northern materially adverse standard. Under that standard, a retaliatory action is materially adverse if the action "might well have dissuaded a reasonable worker from making or supporting a claim." This is a much more liberal standard that saying that the retaliatory action must be in the form of a "tangible job consequence," whatever that might win.
Overall, big win for whistleblowers whose cases go through the ARB.
Wednesday, October 15, 2008
The Second Circuit has just enforced the NLRB's finding that a one-time stock award was not a mandatory subject of bargaining. In Unite HERE v. NLRB, the court agreed with the majority in a 2-1 Board decision; as described by BNA's Daily Labor Report (subscription required):
A manufacturing company that marked its initial public offering of stock by giving 100 shares to each of its employees was not required under the National Labor Relations Act to bargain about the transaction with a union that represented workers at one of its plants, the U.S. Court of Appeals for the Second Circuit decided Oct. 14. . . . Rejecting the union's argument that the company was required to bargain about any gift that had more than "token value," the appeals court said the NLRB acted reasonably in deciding that the one-time stock award was not a mandatory subject of bargaining. . . .
In August 2004, Westlake, a privately owned company, conducted an initial public offering of stock. A few days later, Westlake decided to transfer 100 shares of stock to all of its employees, including the North American Pipe workers. In a letter to employees, the company explained that stock would be distributed to all employees of any subsidiary who had six months of service. The initial award to employees was made in stock "units," with shares of stock to be distributed after six months to all employees who continued to be regular full-time workers. The court said that the value of the stock given to each employee was approximately $1,450. Westlake told employees they could cover their tax obligations regarding the stock awards either by having shares of stock withheld from the award or by having cash withheld from their base pay. . . .
The NLRB ruled 2-1 that "the Westlake IPO stock award was a gift and was not a mandatory subject of bargaining," and dismissed the charge. . . . Walker said that the status of the stock awards under the NLRA depends on whether an award is "so tied to remuneration that it must be the subject of bargaining." In making such a determination, the court said, the board looks at the relationship between an award and other employment related factors, including an employee's performance, hours worked, seniority, and production.
The NLRB has found that bonuses tied to company profits or work performance were related to other forms of employee compensation and were therefore negotiable, but the court said that deciding whether an award or bonus is a mandatory subject of bargaining does not depend on whether the item has "token value." The board has found that whatever its monetary value, a bonus is not a mandatory subject of bargaining if it is insufficiently tied to employment-related factors and is not so fixed in nature that it becomes a part of the remuneration workers expected from their employment, Walker said. . . .
The NLRB divided 2-1 on the union's right to bargain about the Westlake stock awards, the court noted, and the dissenting board member argued that the company's comments about tax withholding on the stock awards suggested that the employer considered the award constituted wages, while limiting the award to employees with more than six months of service showed that the award was tied to employee seniority. . . .
The court said there was no basis for disturbing the decision reached by the NLRB majority. "The stock award here was a one-time event, given to each employee, regardless of rank, in an equal amount. The record fully supports the majority's finding that the stock was issued to mark the success of the IPO and not because NAP sought to compensate those employees who had been at Westlake for six months and to entice those employees to stay for at least six more," the court found.
Walker said that the dissenting board member made "colorable arguments" that the Westlake stock award could have been treated as wages, but the appeals court concluded that the board's dismissal of the charge against North American Pipe was supported by substantial evidence, and the court denied UNITE HERE's petition for review of the NLRB ruling.
As a former appellate attorney for the NLRB, I'm always happy to hear courts sing the praises of agency deference (heaven knows I could have heard more of it while practicing). However, the dissenting Board's member's (Dennis Walsh, who noted the court's decision to me) reliance on the employer's view that the money was taxable seemed stronger than the court gave credit.
The Reporters Committee for Freedom of the Press today filed a brief asking the U.S. Supreme Court to review a decision that allowed all records in a federal employment discrimination case to be hidden from the public. The Reporters Committee filed the brief on behalf of itself and 29 other leading media organizations.
The friend-of-the-court brief was filed in support of The Legal Intelligencer, which petitioned the Supreme Court for review after the Third Circuit Court of Appeals rejected its request to intervene in Doe v. C.A.R.S. Protection Plus Inc. The newspaper sought to unseal the docket and record in Doe, a case in which the plaintiff claimed she was wrongly fired because she had an abortion.
"This case has been conducted for seven years in complete secrecy," the brief noted, "a testament to the need for the Court's guidance regarding the right of access to civil hearings and records." The brief urged the Court to accept review to correct the mistakes below and "clarify that the public has a constitutional right of access to civil proceedings and records, because civil proceedings implicate precisely the same concerns about the fairness of the justice system that underlie the right of access to criminal proceedings."
I would be very interested in hearing from others in the employment discrimination law community as to their sense as to when legal proceedings of this nature should be protected from public viewing. One question that I have: are some of the sexual harassment cases out there any less humiliating and embarrassing than one concerning an employee who was fired because she allegedly had an abortion?
Another thought: do the public purposes of Title VII to eradicate employment discrimination in the American workforce, which I have written about here, become undermined when their is a lack of transparency when the record is sealed? Finally, given the sensitive nature of these cases, where is one to draw the line?
One of the less followed stories during the economic collapse is its potential impact on the employee benefits of employees in the United States. Not only will workers lose a substantial part of their pensions because of the falling price of securities in their 401(k) accounts, but there might even be a bigger problem discussed in this article from Columbus Business First:
As a national debate over the future of the nation’s health-care system swirls, a new report from a liberal think tank indicates fewer working-age Americans, including Ohioans, are being covered under employer-sponsored health plans.
A briefing paper from the Washington, D.C.-based Economic Policy Institute, titled The Erosion of Employer-Sponsored Health Insurance, shows employer coverage for workers and their families dropped for the seventh consecutive year. About 63 percent of Americans, or 164.5 million, under age 65 were covered in 2007, about 3 million workers fewer than in 2000, during which about 68 percent were covered.
Employer-sponsored insurance coverage for working-age Ohioans fell at a similar rate over the decade. Last year, 6.8 million Ohioans, or nearly 69 percent, were covered by their employers, down more than 400,000 from 7.2 million, or 74 percent, six years earlier.
To the extent that employers are seeking to cut labor costs by pulling out of voluntarily adopted health benefit plans, there could be a domino effect which neither presidential candidate has grappled with: the demise of the employer-provided health insurance system in this country.
There will be two potential approaches that could result: an amendment of ERISA to require employers to provide manadatory health plans or a switch to a government-based system (one way would be to expand Medicare and Medicaid-type coverages to the entire nation). After having studied what a number of countries have done in preparation for my forthcoming, co-authored case book on Global Issues in Employee Benefits Law, I am of the opinion that a hybrid system would be best. Such a system would provide a base-level coverage for all Americans through the government and then additional coverage and services could be provided through mandatory employer-provided coverage.
Steve Greenhouse of the New York Times writes about the claimed increasing influence the Change to Win Coalition is having in this presidential election:
Success has many parents, and with Senator Barack Obama gaining a lead in many polls, the Change to Win union federation is claiming that its ads, fliers and volunteers have helped him.
Anna Burger, the president of Change to Win, a federation of seven unions, said its recent campaigning has played an important role in persuading many undecided working-class voters to back Mr. Obama, helping to lengthen his lead.
In a news briefing on Tuesday night, Change to Win officials also said their efforts might enable the Democrats to capture 60 Senate seats, perhaps even 63, up from the 57 that many Democrats were hoping for just three weeks ago. The Democrats have a 51-49 majority.
“We have launched the most aggressive political program that we think any labor movement has ever done,” Ms. Burger said. Officials with the country’s main labor federation, the A.F.L.-C.I.O., which the Change to Win unions broke off from in 2005, might disagree since that federation’s unions are doing intense campaigning as well.
Ms. Burger said a key part of Change to Win’s effort is what she called “our work-site blitzes” in which thousands of union members distribute fliers to co-workers twice a month and pro-Obama union members talk up Mr. Obama with undecided members.
I am really less interested in determining whether the success in getting union voters is because of Change to Win or AFL-CIO efforts. It is probably both and for those like me who are unsatisfied with the current state of labor law in this country and dread another four years of Bush-style labor policies, the important things is to get Obama elected with a sizable majority of Democrats in the Senate.
Tuesday, October 14, 2008
Karen Schilt (Chicago, pictured here) and Matthew Wiswall (NYU) have released an interesting study, Before and After: Gender Transitions, Human Capital, and Workplace Experiences (registration or subscription required to download). The abstract says:
We use the workplace experiences of transgender people – individuals who change their gender typically with hormone therapy and surgery – to provide new insights into the long-standing question of what role gender plays in shaping workplace outcomes. Using an original survey of male-to-female and female-to-male transgender people, we document the earnings and employment experiences of transgender people before and after their gender transitions. We find that while transgender people have the same human capital after their transitions, their workplace experiences often change radically. We estimate that average earnings for female-to-male transgender workers increase slightly following their gender transitions, while average earnings for male-to-female transgender workers fall by nearly 1/3. This finding is consistent with qualitative evidence that for many male-to-female workers, becoming a woman often brings a loss of authority, harassment, and termination, but that for many female-to-male workers, becoming a man often brings an increase in respect and authority. These findings challenge the omitted variables explanations for the gender pay gap and illustrate the often hidden and subtle processes that produce gender inequality in workplace outcomes.
This study is a very important addition to the gender pay gap issue, and it is also an important look at the treatment of transgendered people in the workplace aside from that. I am curious whether the very negative treatment of male-to-female workers embodies not just a judgment about the value of women workers, which is certainly one inference we could make, but whether it also embodies a judgment about the decision of a male person to become a female one. In other words, whether it is this change from privileged status to unprivileged status that is especially scorned. There is an interesting potential parallel in the parenting responsibilities literature that Joan Williams has written about. Men who who are primary caregivers tend to be viewed by outsiders as mentally deficient in a fundamental way, similar to those who are mentally retarded or very elderly. And so, female people in female roles are less privileged than male people in male roles, but male people in female roles are particularly penalized.
a woman who posed as her twin sister to argue cases as an advocate in court. Now both twins are due in court together, this time as defendants.
The story began when Gabriela Odisio, a lawyer and part-time judge from Magenta, realised she was double-booked as both an advocate and judge on the same day in different places. She allegedly invited her identical twin, Patrizia, to assume her identity as an advocate and present a case while she went of to act as a judge. This ruse would enable Gabriela, in effect, to draw fees for working in two places at once.
Amy and Robert McCormick have just posted on SSRN their article (forthcoming San Diego L. Rev.) The Emperor's New Clothes: Lifting the NCAA's Veil of Amateurism. Here's the abstract:
[This article] expose[s] a theme common to three areas of law - labor, antitrust, and tax. Each of these laws, in its own way, distinguishes between commercial and amateur activities, regulating the former and exempting the latter. Assuming major college sports to be amateur, these laws have exempted college athletics from regulation, providing them unwarranted shelter. We challenge this assumption by examining in rich detail the profoundly commercial character of the college sports industry. Like the child in the fable who alone revealed the emperor's nakedness, we lift the NCAA's veil of amateurism, exposing the deeply commercial nature of major college sports and calling for the laws' application to them.
Pat Chew (Pittsburg) and Robert Kelley have just posted on SSRN their article (forthcoming Wash. U. L. Rev.) Myth of the Color-Blind Judge: An Empirical Analysis of Racial Harassment Cases. Here's the abstract of this important study:
This empirical study of over 400 federal cases, representing workplace racial harassment jurisprudence over a twenty-year period, found that judges' race significantly affects outcomes in these cases. African American judges rule differently than White judges, even when we take into account their political affiliation and case characteristics. At the same time, our findings indicate that judges of all races are attentive to relevant facts of the cases but interpret them differently. Thus, while we cannot predict how an individual judge might act, our study results strongly suggest that African American judges as a group and White judges as a group perceive racial harassment differently. These findings counter the traditional myth of judicial decision-making that the race of a judge would not make a difference, since the decision-making process is presumed to be rationale and objective.
Given the underrepresentation of minority judges on the federal bench, the growing minority population in the U.S., and minority skepticism of judicial fairness, this article offers empirical support for a more racially-diverse judiciary. Having more judges of color promises to increase the impartiality of the judicial system and yield more equitable legal outcomes.