Saturday, October 29, 2011

Recently Published Scholarship


  • Michael C. Duff, Union Salts as Administrative Private Attorneys General, 32 BJELL 1 (2011).
  • Kevin Banks, Trade, Labor and International Governance: An Inquiry into the Potential Effectiveness of teh New International Labor Law, 32 BJELL 45 (2011).
  • Alek Felstiner, Working the Crowd: Employment and Labor Law in the Crowdsourcing Industry, 32 BJELL 143 (2011).
  • Adam B. Gartner, Protecting the ERISA Whistleblower: The Reach of Section 510 of ERISA, 80 Fordham L. Rev. 235 (2011).
  • Richard Bales & Lindsay Mongenas, Defining Independent Contractor Protection Under the Rehabilitation Act, 34 Hamline L. Rev. 435 (2011).
  • Grant T. Collins & Penelope J. Phillips, Overview of Reasonable Accommodation and the Shifting Emphasis from Who is Disabled to Who Can Work, 34 Hamline L. Rev. 469 (2011).
  • Robert C. Bird, The Power of Uncertainty in Disability Law, 34 Hamline L. Rev. 605 (2011).
  • Richard Bales & Melanie A. Goff, An Analysis of an Order to Compel Arbitration: To Dismiss or Stay?, 115 Penn St. L. Rev. 539 (2011).


October 29, 2011 in Scholarship | Permalink | Comments (1) | TrackBack (0)

Thursday, October 27, 2011

Wal-Mart Redux

WalmartToday, several of the named plaintiffs in Wal-Mart v. Dukes, including Betty Dukes, filed an amended complaint against Wal-Mart, alleging pay and promotion discrimination on the basis of sex in Wal-Mart's California stores. According to the L.A. Times, Wal-Mart contends that the amended complaint simply rehashes the arguments the Court rejected. One of the attorneys for the women said this was just the first of an "armada" of cases to follow. I'm not sure it helps Wal-Mart to have resisted this class action if it now must defend thousands and maybe even tens of thousands of individual suits. For more see the NYT, and the complaint. I wonder if this will take another ten years to get past the certification question.


October 27, 2011 in Employment Discrimination, Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Labour Law Research Net

LabourlawGuy Davidov (Hebrew U. Jerusalem), on behalf of the Labour Law Research Net Steering Committee, writes:

I am happy to report that a new network has been formed to advance research in labour law and facilitate contacts and exchange of ideas between labour law scholars. The network is based on cooperation between 30 labour law research centers from all over the world. All individual labour law scholars are welcome to join, whether affiliated with a research center or not. Please visit our website at -- it is intended to provide a forum for posting labour law papers (you are welcome to send in your own) and information on relevant events. There is also a page for discussion forums on current substantive labour law topics. Please sign up at the website for the mailing list, which is designed to allow all labour law scholars to send and receive relevant information (it will be moderated to prevent spam or otherwise inappropriate messages). Please also forward this invitation to other labour law scholars (including PhD students) that might be interested.


October 27, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

New Scholarship


Several terrific new articles have just been posted on SSRN:


October 27, 2011 in Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, October 26, 2011

NLRB Wins Public Service Award

NLRBAmid all the criticism of the NLRB comes news that the agency has just won the John C. Cruden Federal Agency Pro Bono Leadership Award, which recognizes the agency's encouragement of pro bono work by its employees.  According the the Board's press release:

The award, which is administered by the Federal Government Interagency Pro Bono Working Group, is given every two years and the Agency will be the third recipient. NLRB lawyers have donated hundreds of hours of their own time to work with various legal clinics, primarily the D.C. Bar’s Advocacy and Justice Clinic and the Montgomery County Bar Association’s Pro Bono Legal Advice & Referral Clinic. They have represented the area’s poor in cases involving child support, child custody and visitation, evictions, wills, personal injury defense, home repair disputes, and hour and wage claims.

The Agency was selected for a variety of reasons, among them: Hosting pro bono training events for federal lawyers in the area; playing an important role in establishing a federal pro bono legal program in San Francisco; adopting a recent policy granting lawyers at NLRB headquarters up to 40 hours of administrative leave for trial appearances and other work that cannot be done on a lawyer’s own time; and long-time involvement and a strong leadership role in the Interagency Working Group begun in 1998.

Congratulations to the Board and all of the attorneys who helped earn the award.  See the link above for more details on the presentation, which will be given by Chief Judges Royce Lamberth and David Sentelle. 


October 26, 2011 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Interviewing Faculty Candidates

InterviewIt's on-campus interview season at law schools around the country, so I thought I'd try to spark a discussion about interview questions.  By the time most faculty candidates have finished a day's worth of interviewing, they've probably heard the standard "Tell me about your scholarship" and "Describe your approach to the classroom" a dozen times or more.  As LEL folks, I think we can do better. 

What are your favorite questions to ask in a faculty interview, and what do you hope to accomplish with those questions?  I'll lead off with a few of my own:

  • Give me an example of a time when you went above and beyond the call of duty.  [I'm looking for someone who is internally motivated.  If a candidate can't think of an example, that's a bad sign.  If the candidate's example doesn't sound very exemplary to me, that's also a bad sign.  Nearly everyone who goes through the AALS hiring process is capable of terrific scholarship, but not all of them are sufficiently self-motivated to follow through, especially after receiving tenure.]
  • Have you ever had to "sell" an idea to your co-workers or group?  How did you do it?  Did they buy it?  [I'm looking for someone who's creative enough to think outside the box, and who has the communication and people skills to turn an idea into an accomplishment; I'd also be impressed by someone who had an outside-the-box idea, proposed it, then had the open-mindedness to withdraw it if circumstances warranted that.]
  • What have you done in the past to contribute toward a teamwork environment?  [I think this one's fairly self-explanatory.]

Please comment to add your favorites.


October 26, 2011 in Labor and Employment News | Permalink | Comments (0) | TrackBack (0)

Your "Frank Discussion" Is My "Direct Evidence of Discrimination"

DiscrimFrom today's Telegraph of London, via PHJ Law:

Older workers could face being sacked or told to consider retirement by their employers and not be able to launch ageism legal action under sweeping government plans announced by Nick Clegg.

The Deputy Prime Minister said that businesses should be free to have "frank discussions" with underperforming workers without any consideration for their age or fears about pending employment tribunal proceedings.

Mr Clegg's comments came as he announced a ''major shake-up'' of business inspection so that firms would be offered advice and support but would also be allowed to ''get on'' with their work.

The proposed change means introducing a new law that will allow "protected conversations" - meaning staff will not be able to use them against employers later.


October 26, 2011 in Employment Discrimination, International & Comparative L.E.L. | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 25, 2011

Request for Information for AALS Newsletters


The following request for faculty information from labor and employment law professors is from both the AALS Section on Labor Relations and Employment Law and the AALS Section from Employment Discrimination Law:

Apologies in advance for crossposting.

We are putting together a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law and we want to enlist the help of readers.  First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure not included here, please email Peggie at

Second, we want to include a list of your relevant employment or labor law-related publications published in 2011.  These can be books, articles, and chapters.  Please save any forthcoming entries that will not have a 2011 publication date for next year's newsletter.   Please send a list of your 2011 publications to Peggie as well.

Third, we want to solicit anyone who would be interested in writing a brief description of a recent "big" labor and employment case or significant new labor or employment legislation. Your subject could be a Supreme Court decision, but it doesn't have to be—a significant circuit court decision (or emerging circuit split), a state supreme court decision, or an innovative and potentially influential new federal, state, or local law could also be good choices. The description should be pretty short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity.  Please send submissions to Deborah at

Please send all submissions by November 21, 2011.


Peggie Smith and Deborah Widiss


October 25, 2011 in Conferences & Colloquia, Faculty Moves, Faculty News | Permalink | Comments (0) | TrackBack (0)

NYLS Symposium on Discrimination Cases after Iqbal

NylsThe New York Law School Law Review and the Employee Rights Advocacy Institute For Law & Policy present the symposium Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination.  The symposium will be held Monday, April 23, 2012, 8:30 a.m. – 4:45 p.m.  The keynote speaker will be Judge Denny Chin, U.S. Court of Appeals for the Second Circuit.  Here's a description of the symposium:

Federal judges, practitioners, and legal scholars will examine the high failure rates of plaintiffs on pre- and post-trial motions in employment discrimination cases. The increasing prevalence of pre- and post-trial dispositive motions in litigation has had a demonstrably unique effect in cases alleging violations of employment discrimination laws. A substantial and growing body of evidence, both empirical and anecdotal, shows that cases alleging employment discrimination are disproportionately susceptible to dismissal before trial as well as to unfavorable JNOV motions after trial.

Encouraging this movement towards pre-trial adjudication of employment discrimination cases are the U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, through which the Supreme Court appeared to raise the quantum of facts that a plaintiff must plead to avoid successfully a motion to dismiss. As summary judgment is a primary mechanism for evaluating a case, these rulings raise questions as to whether the Court has blurred the line between motions to dismiss and motions for summary judgment. The program will explore potential strategies to reverse this growing trend.

The terrific cast of speakers includes Ann McGinley (UNLV), Minna Kotkin (Brooklyn), Arthur Leonard (NYLS), Suzette Malveaux (Catholic U.), Scott Moss (Colorado), Elizabeth Schneider (Brooklyn), Joe Seiner (South Carolina), & Suja Thomas (Illinois).


October 25, 2011 in Conferences & Colloquia, Employment Discrimination, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, October 24, 2011

Recently Published Scholarship


  • Christine W. Westphal, Restrictive Covenants in Employment Contracts: Regulating Employee Solicitation, 37 J. Legislation 108 (2011).
  • Angela K. Herring, Untangling the Twombly-McDonell Knot: The Substantive Impact of Procedural Rules in Title VII Cases, 86 NYU L. Rev. 1083 (2011).
  • Deborah L. Rhode, From Plattitudes to Priorities: Diversity and Gender Equity in Law Firms, 24 Georgetown J. Leg. Ethics 1041 (2011).
  • Eli Wald, A Primer on Diversity, Discrimination, and Equality in the Legal Profession or Who Is Responsible for Pursuing Diversity and Why, 24 Georgetown J. Leg. Ethics 1079 (2011).
  • Elizabeth Weeks Leonard, Can You Really Keep Your Health Plan? The Limits of Grandfathering Under the Affordable Care Act, 36 J. Corp. L. 753 (2011).
  • Richard Moberly, The Supreme Court's Antiretaliation Principle, 61 Case Western Res. L. Rev. 375 (2010).


October 24, 2011 | Permalink | Comments (0) | TrackBack (0)