Monday, August 1, 2022

COSELL 2022 Registration and Info

Jennifer Shinall and the folks at Vanderbilt now have the COSELL 2022 site up and running, which you can access here: https://law.vanderbilt.edu/phd/cosell2022/

The conference will be held at Vanderbilt Law School on Friday, October 21 and Saturday, October 22 and will be hybrid, held simultaneously in person at Vanderbilt Law School in Nashville, Tennessee and via Zoom.

The deadline for abstract submission is August 31, 2022, and the conference schedule will be posted by September 12, 2022.

The link listed above also includes an option to submit abstracts and hotel info.

Hope to see you all there!!

Jeff Hirsch

August 1, 2022 | Permalink | Comments (0)

Monday, July 25, 2022

Ohanesian on Administrative Deference & the NLRB

OhanesianNicholas Ohanesian (ALJ, Social Security Administration) has just posted on SSRN his article Administrative Deference and the National Labor Relations Board: Survey and Analysis. Here's the abstract:

A majority of the current members of the Supreme Court have expressed an interest in altering or doing away with entirely deference to administrative agencies. Prior to upending the existing regime, it is useful to understand the impact of the existing deference apparatus upon the affected administrative agencies. Much of the scholarship up to this point has focused on the merits of deference, its role in the separation of powers, the proper allocation of power between the three branches of government, and the practical effects of deference on administrative decision-making. What is mostly absent is an accounting of how deference is systematically applied to administrative agencies.

This article will examine how the existing deference regime is applied to the National Labor Relations Board. The NLRB is an interesting case study in the role of administrative deference in federal courts. It is a small agency in terms of its annual budget and the number of the employees. It is also an agency that originates in the New Deal and has a long history of litigation in federal courts, particularly before the United States Supreme Court. This article adds to the existing scholarship concerning the impact of deference on various agencies such as the Environmental Protection Agency, the Securities and Exchange Commission, the Federal Trade Commission, the Social Security Administration and the like.

rb

July 25, 2022 in Labor Law, Scholarship | Permalink | Comments (0)

Wednesday, July 13, 2022

Faculty Hiring at UNLV!

Friend-of-blog Ann McGinley sends along this hiring announcement from UNLV, which will include consideration of those pursuing the worklaw field:

The William S. Boyd School of Law at the University of Nevada, Las Vegas, invites applications from both entry-level and lateral candidates for two tenure-track or tenured faculty positions expected to begin July 1, 2023. For these two positions, we seek creative and productive scholars: one with relevant expertise in teaching Legal Writing and one with experience teaching a live-client Clinic. Our faculty who teach legal writing or clinical courses are full members of our unified tenure system with all of the privileges and scholarly expectations associated with tenure; faculty who teach legal writing or clinical courses may teach a podium course as part of our standard 3-course teaching load. Subject matter needs for podium courses are broad and include, but are not limited to, business and commercial law, criminal law, evidence, and property. 

The William S. Boyd School of Law at UNLV is a leading public law school founded on a commitment to public service and community engagement. With its nationally ranked Lawyering Process Program, Saltman Center for Conflict Resolution, and the Thomas & Mack Legal Clinic, Boyd offers a dynamic curriculum designed to teach students critical thinking and lawyering skills. Boyd has an LL.M. in Gaming Law and Regulation and a variety of distinctive Programs in Health Law; Indian Nations Gaming and Governance; International, Transnational, and Comparative Law; and Race, Gender & Policing. Through its J.D. curriculum, students can pursue academic concentrations in Business and Commercial Law, Dispute Resolution, Health Law, Intellectual Property, and Workplace and Employment Law. The law school is located at the heart of the UNLV campus. UNLV is an R1 research university that is among the most diverse campuses in the nation and is also the state’s largest comprehensive doctoral degree granting institution with Schools of Business, Dental Medicine, Engineering, Hospitality, Medicine, Nursing, and Public Health, among many others.

Applicants for law school faculty positions should submit a letter of interest describing teaching interests and experience and providing a scholarly research agenda, along with a detailed resume, at least three professional references, and cites or links to published works. The Faculty Appointments Committee will begin interviewing candidates in August; candidates who submit applications by August 18 will be given priority.  Interested candidates should send their materials to: Faculty Appointments Committee, c/o Ms. Alicia Portillo, Appointments Committee Coordinator, William S. Boyd School of Law at UNLV, 4505 South Maryland Parkway, Campus Box 451003, Las Vegas, NV  89154-1003 or by email at alicia.portillo@unlv.edu

Members of the Appointments Committee are Professors Thomas Main (chair), Mary Beth Beazley, Frank Rudy Cooper, Mary LaFrance, Lydia Nussbaum, and Jean Sternlight.  UNLV is an Affirmative Action/Equal Opportunity educator and employer committed to excellence through diversity.

--Joe Seiner

July 13, 2022 | Permalink | Comments (0)

Tuesday, July 12, 2022

Call for Papers: The Effect of Dobbs on Work Law

Nicole Porter, who just joined Chicago-Kent and is the new director of the  Martin H. Malin Institute for Law and the Workplace, writes about a really interesting symposium call for papers:

 

 Symposium Hosted by the Martin H. Malin Institute for Law and the Workplace at Chicago-Kent College of Law

The Effect of Dobbs on Work Law

The Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization is nothing short of monumental. It will undoubtedly have significant and far-reaching effects on almost all areas of life, including families (and family law), relationships, the criminal justice system, healthcare, travel, and state and federal politics, to name a few. It will also undoubtedly have significantly different effects based on race, ethnicity, class, gender identity, sexual orientation, age, and disability.

These issues are already being discussed and explored and will continue to be for years (if not decades). This symposium will explore the effect of Dobbs on work law. Potential issues might include: privacy in the workplace, pregnancy discrimination protections, state and federal maternity leave laws, employers’ liability for assisting employees in procuring abortions, implications for religiously affiliated employers, effects on workers with disabilities, racial and class differences regarding how Dobbs affects the workplace, sexual harassment law, implications for marital status discrimination, potential role of unions and other collective action, and undoubtedly many other potential issues not listed here.

The Martin H. Malin Institute for Law and the Workplace (“Institute”) at Chicago-Kent College of Law will sponsor an in-person symposium on Friday, March 3, 2023, at the College of Law. Out-of-town speakers’ reasonable travel expenses to Chicago will be paid for by Chicago-Kent. Papers will be published in a forthcoming issue of the Employee Rights & Employment Policy Journal, which is a peer-edited journal published jointly by the Institute at Chicago-Kent and the Labor Law Group.

If interested in submitting a proposal, please send a proposed title and one- or two-paragraph description to Professor Nicole Buonocore Porter, Director of the Institute, at nporter@kentlaw.iit.edu. Proposals can address other issues not mentioned above, as long as they are related to the workplace and/or work law. Please include “Symposium Proposal” on the subject line. Please make sure to also include your institutional affiliation and contact information. Proposals are due by Friday, August 12. I hope to have decisions regarding the acceptance of proposals by September 2. Initial drafts of papers will be due two weeks before the symposium.

Final drafts will be due one month after the in-person event. Questions can be directed to Nicole at the email above.

 

 

Jeff Hirsch

July 12, 2022 in Conferences & Colloquia | Permalink | Comments (0)

Friday, June 10, 2022

COSELL!

I'm thrilled to announce that the 2022 Colloquium on Scholarship in Employment and Labor Law (COSELL) will at Vanderbilt Law School on October 21-22. More details to come, but definitely save the date for this one.

For any new academics, this has long been my favor gathering to get feedback on labor and employment law related (read broadly) projects. Everyone is incredibly supportive and helpful, and you can present anything from a finished paper to something that's not even half-baked. Plus, there are a ton of people presenting on a wide variety of great topics. 

Huge thanks to Jennifer Shinall and Vanderbilt for hosting this year, especially after hosting last year's virtual conference!

Jeff Hirsch

June 10, 2022 in Conferences & Colloquia | Permalink | Comments (0)

COSELL!

be I'm thrilled to announce that the 2022 Colloquium on Scholarship in Employment and Labor Law (COSELL) will at Vanderbilt Law School on October 21-22. More details to come, but definitely save the date for this one.

For any new academics, this has long been my favor gathering to get feedback on labor and employment law related (read broadly) projects. Everyone is incredibly supportive and helpful, and you can present anything from a finished paper to something that's not even half-baked. Plus, there are a ton of people presenting on a wide variety of great topics. 

Huge thanks to Jennifer Shinall and Vanderbilt for hosting this year, especially after hosting last year's virtual conference!

Jeff Hirsch

June 10, 2022 in Conferences & Colloquia | Permalink | Comments (0)

COSELL!

be I'm thrilled to announce that the 2022 Colloquium on Scholarship in Employment and Labor Law (COSELL) will at Vanderbilt Law School on October 21-22. More details to come, but definitely save the date for this one.

For any new academics, this has long been my favor gathering to get feedback on labor and employment law related (read broadly) projects. Everyone is incredibly supportive and helpful, and you can present anything from a finished paper to something that's not even half-baked. Plus, there are a ton of people presenting on a wide variety of great topics. 

Huge thanks to Jennifer Shinall and Vanderbilt for hosting this year, especially after hosting last year's virtual conference!

Jeff Hirsch

June 10, 2022 in Conferences & Colloquia | Permalink | Comments (0)

Wednesday, June 1, 2022

San Diego Founds Employment Center

  • OrlySan Diego Law School has founded a new Center for Employment & Labor Policy, and Orly Lobel will be the inaugural Director. The mission of CELP is to: (1) Work to elevate research, policy impact, and teaching in the field. (2) Provide a forum for engagement and debate on employment-related topics. (3) Sponsor speakers, workshops, roundtables, visitors, and fellows. (4) Provide opportunities for collaborative research by USD faculty, USD students, policymakers, and practitioners locally and nationally.

Congrats, Orly!

rb

June 1, 2022 | Permalink | Comments (0)

Wednesday, May 18, 2022

Prince on the Current State of Employee Classification Laws

Samantha Prince now has the final version of her new article, The Shoe Is about to Drop for the Platform Economy: Understanding the Current Worker Classification Landscape in Preparation for a Changed World, up on SSRN and it looks very informative. The abstract:

Whether a worker is an independent contractor or employee is of great significance in many countries, including the United States. This label drives whether a worker is entitled to many protections and benefits, including, minimum wage, overtime, workers’ compensation, unemployment compensation, anti-discrimination protection, NLRA protection, etc. The difficulty inherent in accurately classifying workers as either independent contractors or employees cannot be overstated. First, there are so many tests spanning all levels of our government. Second, there are so many ways that people work and with the increased popularity of app-based work, classification becomes even more difficult. Simply, some of the tests have not been working well when applied to precarious app-based work. As a result, policymakers are forced to finally bring these issues to the forefront.

Worldwide policymakers and leaders are implementing changes to protect app-based workers. In the United States, the federal government is evaluating whether these changes in the workforce require changes in national labor and tax laws. While campaigning, President Biden pledged to establish a uniform worker classification test for purposes of all federal labor, employment, and tax laws. Subnational governments – states and cities – are also evaluating and making changes in their policies and laws.

In order to make these decisions, policymakers will need to be familiar with the current landscape of tests and statutes. Policymakers should evaluate the approaches that currently are being used and how they have fared so that they can decide whether to strike out with a novel test or adopt one already in use. Although prior articles have considered worker classification laws, and the benefits associated with various classification approaches, things have evolved so quickly that in some respects most of those articles are at least partially out of date. And, having all of this information in one place is critical for ease in policymaking research and deliberations.

This Article fills the current knowledge gap by providing an up-to-date compendium of the current state of worker classification laws. The Article starts with a segment on instabilities and health issues experienced by app-based workers. Then it covers the latest on worker classification laws around the world including the EU Commission's Proposed Directive. It then turns to tests that the U.S. is using, which include traditional tests and new tests from both the state and city levels. The Article explains how these tests are used and summarizes commentary about the strengths and weaknesses of each of these tests. As national, state, and local policymakers consider how best to move forward in regulating the app-based economy and its workers, they are likely to find the information in this Article useful to their deliberations.

Check it out!

Jeff Hirsch

May 18, 2022 in Employment Common Law, Scholarship | Permalink | Comments (0)

Thursday, May 12, 2022

Call for Proposals - Fourth Annual Equality Law Scholars’ Forum

Heed the call for proposals for the Fourth Annual Equality Law Scholars' Forum (November 4-5, 2022, Loyola Law School, Los Angeles):

Building on the success of the Equality Law Scholars’ Forum held at UC Berkeley Law in 2017, at UC Davis Law in 2018, and at Boston University Law in 2021, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, University of San Francisco, visiting Loyola Los Angeles AY 2022-23; Angela Onwuachi-Willig, Boston University; and Leticia Saucedo, UC Davis) announce the Fourth Annual Equality Law Scholars’ Forum to be held in Fall 2022. 

This Scholars’ Forum seeks to provide junior scholars with commentary and critique and to provide scholars at all career stages the opportunity to engage with new scholarly currents and ideas.  We hope to bring together scholars with varied perspectives (e.g., critical race theory, class critical theory, queer theory, feminist legal theory, law and economics, law and society) across fields (e.g., criminal system, education, employment, family, health, immigration, property, tax) and with work relevant to many diverse identities (e.g., age, class, disability, national origin, race, sex, sexuality) to build bridges and to generate new ideas in the area of Equality Law.  

We will select five or six relatively junior scholars (untenured, newly tenured, or prospective professors) in the U.S. to present papers from proposals submitted in response to this Call for Proposals. In so doing, we will select papers that cover a broad range of topics within the area of Equality Law.  Leading senior scholars will provide commentary on each of the featured papers in an intimate and collegial setting.  The Forum will take place all day Friday through lunch on Saturday.  Participants are expected to attend the full Forum.  The Equality Law Scholars’ Forum will pay transportation and accommodation expenses for participants and will host a dinner on Friday evening.  

This year’s Forum will be held on November 4-5, 2022, at Loyola Law School in Los Angeles.

Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by June 10, 2022.   

Full drafts of papers must be available for circulation to participants by October 20, 2022

Note: We urge submission of proposals for drafts that will still be substantially in progress in October/November 2022 over drafts that will be in late-stage law review edits at that time.

Proposals should be submitted to: Leticia Saucedo, UC Davis School of Law, lmsaucedo@ucdavis.edu.  Electronic submissions via email are preferred.

 

-- Sachin S. Pandya

May 12, 2022 in Conferences & Colloquia | Permalink | Comments (0)

Thursday, April 21, 2022

Bodie and Garden to Minnesota

As many readers know, Minnesota Law School two great labor and employment faculty members--Steve Befort (who is still teaching on an emeritus basis) and Laura Cooper--retired over the last couple of years. The school just hired their replacements and hit home runs for both: Matt Bodie (St. Louis) and Charlotte Garden (Seattle).

Congratulations to Matt & Charlotte!!

Jeff Hirsch

April 21, 2022 in Faculty Moves | Permalink | Comments (0)

Monday, April 18, 2022

NYC LERA: NYC’s Worker Protection Laws and its Impact on the Workplace

SpeakersBill Herbert (Hunter College, CUNY) tells us about the upcoming NYC LERA program NYC Workplace and Labor Law Update: A Look at NYC’s Worker Protection Laws and its Impact on the Workplace, April 26, 2022, 6 – 7:30 pm ET. Here's a description:

NYC regulatory agencies are charged with administering and/or enforcing municipal workplace laws intended to protect workers across various industries. These laws apply to workers of different socio-economic groups, tackling matters such as pay equity, workplace safety and other worker rights and protection issues. Our panel will address recent enforcement initiatives and its impact on employers, employees and the workplace.

rb

 

April 18, 2022 in Conferences & Colloquia, Wage & Hour, Workplace Safety, Workplace Trends | Permalink | Comments (0)

Monday, April 11, 2022

DC LERA: Gig Economy in Europe

DcleraTequila Brooks tells us of the program Gig Economy in Europe: Examples from Sweden, Netherlands and Germany on Tuesday, April 26th, 2022, 12:00 pm – 1:30 pm ET. Topics to be discussed include working conditions in the gig economy in Europe; policy proposals put forward by the European Commission; protection of gig workers under Swedish, Dutch, and German labor law; and employee participation in algorithmic systems in the context of work.

rb

April 11, 2022 in Conferences & Colloquia, International & Comparative L.E.L. | Permalink | Comments (0)

Monday, April 4, 2022

Professor Porter to Lead Malin Institute for Law and the Workplace

I write with terrific news. The Martin H. Malin Institute for Law and the Workplace has named Professor Nicole Buonocore Porter as its new director. Nicole will be joining the Chicago-Kent faculty in the fall. 
 
Nicole is a member and on the Executive Committee of the Labor Law Group. She is a nationally known expert in disability law, and her research interests focus on the employment rights of women and individuals with disabilities.
 
Congratulations to Nicole and to Chicago-Kent on a great hire!
 
-- Sandra Sperino

April 4, 2022 | Permalink | Comments (0)

Monday, March 21, 2022

Shnitser: Professional Employer Organizations & Workplace Benefits

ShnisterNatalya Shnitser (Boston College) has just posted on SSRN her article "Professional" Employers and the Transformation of Workplace Benefits (39 Yale Journal on Regulation Bulletin 99 (2021)). Here's the abstract:

Workers in the United States depend on their employers for a host of benefits beyond wages and salary. From retirement benefits to health insurance, from student loan repayment to dependent-care spending plans, from disability benefits to family and medical leave, U.S. employers play a uniquely central role in the financial lives of their employees. Yet not all employers are equally willing or capable of serving as such financial intermediaries. Larger employers commonly offer more and better benefits than smaller employers. In recent years, so-called Professional Employer Organizations (PEOs) have pitched themselves as a private-sector solution to the challenges traditionally faced by smaller employers. PEOs have pioneered and marketed a “co-employment” model pursuant to which a business and the PEO agree to share certain employer rights and responsibilities, with the PEO taking on all of the human resources matters and the client-employer otherwise retaining control over the business.

While PEOs respond to long-standing challenges faced by smaller employers and have the potential to increase access to workplace benefits, this Article argues that they also introduce new and significant governance concerns that are not adequately addressed by the existing regulatory framework. Empirical evidence suggests that as currently structured, PEOs may not, in fact, provide “Fortune 500” benefits to employees at smaller companies and may instead lock participating employers into costly benefit bundles and expose them to the risk of unpaid employment taxes and health insurance claims. To protect participants in arrangements where PEOs provide key workplace benefits, this Article recommends strengthening and uniformly applying registration, disclosure and oversight requirements for all non-employer intermediaries, including PEOs. In the longer term, comprehensive retirement reform is needed to account for the transformation of workplace benefits in the United States.

rb

March 21, 2022 in Pension and Benefits, Scholarship | Permalink | Comments (0)

Thursday, March 17, 2022

New Ed.: Employment Law in a Nutshell

NutCongratulations to Joe Seiner (South Carolina) on the publication of the 5th edition of Employment Law in a Nutshell (with the late Robert Covington). Here's the publisher's description:

This Nutshell provides an overview of individual employee rights and responsibilities. It addresses a number of areas, including establishing and ending the employment relationship, protection of employee privacy and reputation, discrimination, regulation of wages and hours, employee physical safety, fringe benefits, and employee duties of loyalty. This edition includes a discussion of the many changes in harassment law and the impact of the #MeToo movement, a look at the recent Supreme Court case law extending employment discrimination protections to sexual orientation and transgender status, an examination of the trend toward a more virtual economy and platform-based work, and a description of the changes in how employees work, and the terms of that work, in the face of an ongoing health pandemic.

Here's what's new for the 5th edition:

The fifth edition takes on a number of transformative changes that have occurred in the last several years in the area of workplace law, including: (1) The impact of the #MeToo moment on claims of gender discrimination and harassment; (2) The changing ways employment status is considered in the face of an ongoing health pandemic; (3) The move toward a more virtual workplace and employment that relies more heavily on technology; and (4) The recent Supreme Court case law extending employment discrimination protections to sexual orientation and transgender status.

Congrats, Joe!

rb

March 17, 2022 in Book Club, Employment Common Law, Employment Discrimination | Permalink | Comments (1)

Thursday, March 3, 2022

A Celebration of the life and work of Minna Kotkin

Friend-of-blog Ann McGinley sends along the following invitation to the celebration of the life and work of Minna Kotkin.  Minna was a friend and mentor to so many of us in the labor and employment community, and she will be truly missed by all. Please join us if you can, the information is below and the link is available here:

http://brooklaw.imodules.com/controls/email_marketing/view_in_browser.aspx?sid=1286&gid=1&sendId=3223192&ecatid=17&puid=1e0d77a5-6e61-46a3-a732-6437cf36aa60

Wednesday, March 23

About the Program

This year’s Edward V. Sparer Public Interest Law Forum celebrates the life and work of Professor Minna Kotkin - teacher, scholar, lawyer, activist, mentor, and friend.

This two-hour program on Zoom will feature remarks from colleagues, former students, clients and friends about Professor Kotkin’s teaching, scholarship, mentorship, and lawyering.


At the end of the program, we hope as many audience members as time allows will share their personal memories and thoughts of Professor Kotkin by speaking at the event or sharing their thoughts and tributes in writing in the space provided on the registration form.

 

Memorial Fund Established to Honor Professor Kotkin


Professor Minna Kotkin was a trailblazer in the law and in the classroom, where she inspired generations of Brooklyn Law students. We invite you to join other friends and alumni in honoring her life and carrying her legacy forward by making a gift to the Minna Kotkin Memorial Fund.

 

Date & Time

   

Wednesday, March 23

5:00 p.m. - 7:00 p.m. EST (U.S. & Canada)

Virtual Event (Zoom)

March 3, 2022 | Permalink | Comments (0)

Tuesday, March 1, 2022

Duff Rethinks Workers' Comp

DuffMichael Duff (Wyoming, en route to SLU) has just posted on SSRN his new article (forthcoming Kentucky L.J.) Fifty More Years of Ineffable Quo?: Workers' Compensation and the Right to Personal Security. I usually edit down abstracts to one paragraph, but one paragraph won't do justice to this critically important article. Here's the full abstract:

During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its findings in 1972 and concluded that American workers’ compensation was neither fair nor adequate. The Commission made nineteen “essential recommendations” for the system’s improvement. The federal Department of Labor shifted into high gear to monitor state compliance with the recommendations under implicit, but vague, threat of workers’ compensation federalization if progress was not achieved. In what is perhaps the most interesting part of the story, nothing changed. Today, the Department of Labor no longer monitors workers’ compensation’s attainment of any benchmarks, although some organizations monitor workers’ compensation “trends.”

Lost in discussions of workers’ compensation is any sense of a baseline. Why does this matter? Because workers’ compensation was conceived as a “Grand Bargain” or “quid pro quo,” in which workers surrendered tort rights for adequate statutory benefits. This article contends that the absence of investigation as to whether workers’ compensation benefits are too low has effectively unmoored workers’ compensation from the faintest echoes of the tort rights for which it was exchanged. The article seeks to provoke discussion of what it means, as a matter of both policy and constitutional law, for a state to dispossess injury remedies by converting workers’ compensation from a reasonable substitute remedy for tort to a pale, anti-destitution law relegated to functioning as a form of “welfare.” The article explores the phenomenon of permanent partial disability benefits paid to workers for injuries according to bizarre schedules that are not to any degree based on workers’ lost earning capacity nor on any rational criteria that anyone can identify. Permanent partial benefits—the largest component of workers’ compensation indemnity benefits—are arbitrary.

In its essence this article is about whether state legislatures have carte blanche to annihilate meaningful remedies for workers wrongfully injured in the workplace. Furthermore, to the extent that state legislatures pursue such objectives, the article presses for recognition of a Blackstonian “absolute” right to personal security. Evisceration of remedies not only makes workers poorer, but also leads to their insecurity because they work for actors with insufficient incentives to act safely. The solution to the problem is for legislatures to be more transparent about the relationship between workers’ compensation benefits and foregone negligence remedies—particularly because the original Grand Bargain was struck at a time when negligence affirmative defenses would instantly defeat tort claims, a situation that no longer obtains. The time for benefit inscrutability and ineffability is over.

Well-done, Michael -- I can't agree more.

rb

March 1, 2022 in Scholarship, Workplace Safety | Permalink | Comments (0)

Thursday, February 24, 2022

Interesting Article on Remote Arbitration

Employment law scholars and practitioners might be interested in this new article by Professor David Horton, Forced Remote Arbitration. Here is the abstract:

Courts responded to COVID-19 by going remote. In early 2020, as lockdown orders swept through the country, virtual hearings—which once were rare—became common. This shift generated fierce debate about how video trials differ from in-person proceedings. Now, though, most courts have reopened, and the future of remote trials is unclear.

However, the pandemic also prompted a sea change in alternative dispute resolution. Arbitration providers pivoted away from in-person adjudication and heard cases online. Yet unlike virtual trials, which coexist uneasily with norms in the court system, remote hearings fit snugly within arbitration’s tradition of procedural and evidentiary informality. Thus, while virtual trials may prove to be temporary, virtual arbitration is gaining steam. Online-only arbitration startups have emerged, established providers are marketing their virtual options, and firms are mandating that plaintiffs resolve disputes without setting foot in the same room as the decision-maker. This trend threatens to make the controversial topic of forced arbitration even more fraught. Nevertheless, we do not know how remote procedures impact win rates, case length, and arbitration fees.

This Article shines light on these issues by conducting an empirical study of forced remote arbitration. It analyzes 70,150 recent filings and reaches three main conclusions. First, since July 2020, roughly 67% of all evidentiary hearings have been held virtually. Even though this figure will likely decline as the pandemic re-cedes, online arbitration has become entrenched. Second, plaintiffs who participate in virtual proceedings generally win less often and recover lower damage awards than individuals who arbitrate in person. This “remote penalty” exists in some set-tings even after controlling for variables such as claim type, pro se status, and the experience of the defendant, the lawyers, and the arbitrators. Third, even though proponents of forced remote arbitration contend that it streamlines cases, the data only partially support this claim. Some remote modes, such as documents-only proceedings, seem to save time and money, while others, like video hearings, do not. Finally, the Article explains how its findings can help lawmakers and judges regulate and monitor forced remote arbitration.

The article is available on SSRN.

-- Sandra Sperino

February 24, 2022 | Permalink | Comments (0)

Wednesday, February 23, 2022

The Tension Between McDonnell Douglas and Bostock

The McDonnell Douglas test is one framework that courts use to analyze discrimination cases. The Supreme Court enunciated the test in 1973, and even though the Court has decided several cases to clarify the test, confusion remains. Two recent articles explore the tension between McDonnell Douglas and how the Supreme Court discussed causation in the Bostock opinion. One way of looking at McDonnell Douglas is that it helpfully avoids the specific factual cause inquiry in favor of a sometimes looser, less-defined causal inquiry. However, it may also unhelpfully limit how the courts view causation and discrimination. 

Professor Deb Widiss takes the latter view in her excellent new article, Proving Discrimination by the Text, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3858921, and Noelle Wyman's student note argues that Bostock signals the end of McDonnell Douglas in Because of Bostock, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3913277.

--Sandra Sperino

February 23, 2022 | Permalink | Comments (0)