Wednesday, January 31, 2024
Shirley Lin (Brooklyn) has just published her article Race, Solidarity, and Commerce: Work Law as Privatized Public Law, 55 Ariz. St. L.J. 813 (2023). Here's a summary:
Theorizing work and its regulation has held enduring appeal for legal theorists. Yet intellectual movements that wish to theorize worker coercion within a broader critique of law often sidestep race. Since Lochner, landmark opinions involving race, labor, or both, have served as showpieces for the legal liberal tenets underpinning work law’s doctrines and institutions. Each iteration of the public/private divide instantiates an ideological—but avowedly race-neutral—structure for how we study, teach, and propose to reshape work law. Scholars, judges, and lawmakers typically cede this ground, perhaps because law itself is under right-wing attack.
This Article asks: What if work law allowed us to understand racism as central to legal liberal frames, rather than ancillary or topical? Deploying history and political theory, I demonstrate how public/private dyads within work law have generated unworkable and often divisive understandings of race, solidarity, and commerce. The Article then theorizes the links between work law’s capture by public/private divides and the harms they pose to our centuries-long pursuit of a thriving, multiracial democracy. Reexamining the development of labor and employment law in this light recovers a crucial point of synergy between Critical Race Theory and law and political economy (LPE) analysis.
Building on these insights, I describe work law’s current state as privatized public law. The term historicizes and, for the sake of argument, facilitates closer study of the link between legal liberal conceptions of commerce and the law’s maintenance of racial subordination. Conversely, it allows us to recognize the small- and large-scale frame transformations ordinary people have achieved through mass social movements, with the goal of strengthening all labor movements from within.
Centering race in a reassessment of work law opens up possibilities for unifying the field’s development, charts alternatives to liberal tenets within political economic thought, and provides a starting point for unraveling similarly contested fields of law. We may then “see” how the countertheories that popular movements pose against legal liberalism not only bear epistemic, doctrinal, and political importance, but also foreground the law’s normative distribution of power between public and private, racially solidaristic or radically individualistic. Work law’s tension with popular movements on matters of race, solidarity, and commerce therefore suggests how we may break the theoretical impasse over how to build more just economic and political systems over time.
Tuesday, November 14, 2023
We are pleased to announce that the 2024 Colloquium on Scholarship in Employment and Labor Law (COSELL) will be co-hosted by the University of San Diego School of Law and California Western School of Law. Please save the dates: Friday, Sept. 13 - Saturday, Sept. 14, 2024. The conference organizers are Orly Lobel, Warren Distinguished Professor of Law & Director of the Center for Employment and Labor Policy (University of San Diego) and Susan Bisom-Rapp, Dean Steven R. Smith Professor of Law (California Western School of Law).
Details will follow, but in the meantime, please calendar the dates. We look forward to seeing you in sunny San Diego!
Orly and Susan
Wednesday, November 8, 2023
David Yamada (Suffolk) has just posted on SSRN his article (56 Suffolk L. Rev. 393 (2023)) Expanding Coverage of the U.S. Occupational Safety and Health Act to Protect Workers from Severe Psychological Harm. Here's the abstract:
The U.S. Occupational Safety and Health Act of 1970 (OSH Act) was designed to safeguard workers from hazardous working conditions that can cause serious physical harm and death. Since becoming law, the ongoing toll of physical injuries and fatalities at work reminds us of the compelling need for the OSH Act and its many state equivalents to protect workers. In addition, various research and public education initiatives are now spotlighting workplace hazards that severely threaten the psychological health of today’s employees. Toxic work environments generally, the extraordinary workplace stressors prompted by the COVID pandemic, and workplace bullying and abuse, among other concerns, have underscored the human costs of trauma, fear, anxiety, and stress. Against this backdrop, this essay encourages a needed conversation about extending the regulatory reach of the OSH Act to cover severe psychological harms at work and to anticipate the impact of added enforcement responsibilities on the federal Occupational Safety and Health Administration. Most significantly, it will examine two potential policy responses: First, applying the current OSH Act to workplace bullying, pursuant to a theory first advanced by Professor Susan Harthill; and second, amending the OSH Act to expressly cover workplace hazards that may cause severe psychological harm.
Wednesday, September 20, 2023
The Marco Biagi Foundation (University of Modena and Reggio Emilia, IT) has posted its Call for Papers and Panels for the 21st Conference in Commemoration of Professor Marco Biagi. The conference will take place at the Foundation in beautiful Modena, Italy on March 18-19, 2024. The conference theme is "Social dialogue in a time of societal transformation." The discussions promise to be lively and informative.
I've been attending the annual conference almost every year since 2007 and would love to see a North American presence at the 21st event. Please send me an email if you have questions: [email protected] Here is a link to the call for papers and panels: Call for Papers - 21° Convegno in ricordo del Prof. Marco Biagi
Wednesday, August 9, 2023
This paper summarizes and comments on all Supreme Court opinions issued during the 2022-2023 term that deal with labor and employment law and the employment relationship. The paper also provides information on all cases accepted for argument during the 2023-2024 term as of July 29, 2023.
As always, this is a great summary of the LEL cases from the most recent SCOTUS term.
Monday, July 10, 2023
Nicole Porter, the new director of the Malin Institute for Law & the Workplace at Chicago-Kent writes to invite submissions for "All About Accommodations" Symposium:
Call for Papers: Symposium Hosted by the
Martin H. Malin Institute for Law and the Workplace at Chicago-Kent College of Law
All About Accommodations
The COVID-19 pandemic brought renewed attention to the fact that our diverse workforce often needs modifications of how the job is done or when and where the work is performed. We most commonly think of employees with disabilities as needing accommodations. But as recent developments have demonstrated, pregnant workers might be entitled to accommodations under the new Pregnant Workers Fairness Act (PWFA), and employees have a better chance of having their religious practices accommodated after the Supreme Court’s 2023 decision, Groff v. DeJoy
This symposium will explore the current state and future development of accommodations in the workplace. Selected participants might focus on the Americans with Disabilities Act, the PWFA, religious accommodations, the FMLA, state laws, or the lack of protection for employees who might need but are not entitled to accommodations in the workplace, such as employees with caregiving responsibilities. More broadly, we hope to have conversations about the similarities and differences between various accommodation laws, the pros and cons of targeted (versus universal) accommodation mandates, the theoretical justifications for accommodations, the effect of accommodations on coworkers, how COVID-19 has affected accommodations in the workplace, and how workplace accommodations (or the lack thereof) contribute to (or perhaps harm) workplace equality and the well-being of all workers.
The Martin H. Malin Institute for Law and the Workplace at Chicago-Kent College of Law will sponsor an in-person symposium on Friday, March 22, 2024, at Chicago-Kent. 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 well-respected, peer-edited Employee Rights & Employment Policy Journal, published by the Malin Institute at Chicago-Kent.
Interested participants should send a proposed title and one- or two-paragraph description of your proposal to Professor Nicole Buonocore Porter, Director of the Institute, at [email protected]. Please include “Symposium Proposal” on the subject line and include your institutional affiliation and contact information. Proposals are due by Friday, August 18, 2023. Selected participants will be notified by Friday, September 15. Questions can be directed to Nicole at the email above.
Monday, July 3, 2023
I'm happy to spread word about COSELL 2023--the 18th Annual Colloquium on Scholarship in Employment and Labor Law.
The University of Minnesota School of Law, with Charlotte Garden & Matt Bodie, are kind enough to host this year, which will be held Friday, Oct. 27-Saturday, Oct. 28. Deadline for registation is September 15. Check out this link for all the info.
This is always my favorite labor & employment conference every year--just a ton of positive, helpful feedback from great folks. And it doesn't matter if you've got a near-finished paper or one that's not even half-baked.
Hope to see everyone there!
Monday, May 22, 2023
A great opporutnity for junior scholars:
Call for Proposals for the Fifth Annual Equality Law Scholars’ Forum
November 10-11, 2023 – Boston University School of Law
Building on the success of the Equality Law Scholars’ Forum held at UC Berkeley Law in 2017, at UC Davis Law in 2018, at Boston University Law in 2021, at Loyola Los Angeles Law in 2022, and in the spirit of academic engagement and mentoring in the area of Equality Law, we (Tristin Green, Loyola Los Angeles; Angela Onwuachi-Willig, Boston University; and Leticia Saucedo, UC Davis) announce the Fifth Annual Equality Law Scholars’ Forum and Reunion, to be held in Fall 2023.
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.
This year, because this year’s gathering also will include a reunion, we will be selecting fewer Equality Law Scholars than in prior years. Specifically, we will select three to five relatively junior scholars (untenured, newly tenured, or prospective professors) in the United States. 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 and Reunion will take place all day Friday through lunch on Saturday. Participants are expected to attend the full Forum and Reunion. 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 10-11, 2023, at Boston University School of Law.
Junior scholars are invited to submit abstracts of proposed papers, 3-5 pages in length, by June 15, 2023.
Full drafts of papers must be available for circulation to participants by October 20, 2023.
Note: We urge submission of proposals for drafts that will still be substantially in progress in October/November 2023 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, [email protected]. Electronic submissions via email are preferred.
Friday, May 19, 2023
Monday, May 1, 2023
Diana Reddy (who is starting full-time next year at Berkeley--congrats!) just had her article, After the Law of Apolitical Economy: Reclaiming the Normative Stakes of Labor Unions, published in the Yale Law Journal. The abstract:
It is a consequential moment for American labor unions. Over the past decade, public support for labor unions has skyrocketed. Yet even in this moment of renewed public interest, I argue that the American conversation about unions remains constrained by the legacy of past legal decisions. Within the post-New Deal constitutional framework, unions were categorized as engaging in commercial activity, rather than advancing inherently normative claims about justice at work. I refer to this jurisprudential paradigm and the sociolegal accommodations that followed as the “law of apolitical economy.” Synthesizing labor history, legal doctrine, sociological theory on social movements, and original empirical work, this Feature traces the trajectory of the law of apolitical economy in courts, identifies its broader cultural reverberations, and marshals new evidence to show that it still matters today.
When liberal lawyers made the political and constitutional case for labor unions in the 1930s, they operated within a socioeconomic context radically altered by the Great Depression. Instead of arguing, as labor movement leaders had in the 1800s and early 1900s, that democracy required people to have autonomy and self-determination in their working lives, and instead of advancing unions’ own emergent fundamental rights claims, they emphasized labor law as sound economic policy, boosting aggregate demand and promoting industrial peace. In the new constitutional equilibrium that emerged after the New Deal, labor-union advocacy within the workplace was treated as transactional rather than normative.
This choice had benefits, but it also had costs. Under the law of apolitical economy, labor unions increasingly found themselves denied First Amendment protection for the forms of broad, solidaristic protest that built the labor movement. And as new social movements began pressing rights claims in the public sphere, labor unions came to be seen as categorically distinct, as interest groups rather than social-movement organizations. When supply-side economics gained prominence in the late 1970s, it was devastating for union legitimacy. New economic theories and the on-the-ground realities they facilitated undermined the New Deal-era economic arguments that had justified labor law. At the same time, unions’ ability to counter with broadly resonant normative arguments was hampered by the detritus of their previous legal bargain. In a moment when rights had become, in sociological parlance, the “master frame” for articulating justice claims, it was well-established that bread-and-butter unionism had little to do with rights, or even right and wrong.
Returning to the present day, I argue that the legacy of the law of apolitical economy continues to shape contemporary discourse, even with public approval at a sixty-year high. Faced with a decimated membership and a legitimacy crisis, labor-movement organizations have sought over the past decade to reassert the normative stakes of unionization. They have used what social scientists call “collective action frames” to show that unions further causes with defined normative stakes. These frames underscore the inherently intersectional role of labor unions in an unequal economy—as institutions that advance society-wide economic equity, racial and gender justice, and community well-being. Yet, they too often discount the value of unions’ primary statutory role: bringing workers together to improve their working conditions. In so doing, they fail to reclaim the inherently political vision of work and workers lost to the law of apolitical economy.
In conclusion, I reflect on the broader implications of this project. The dialogic relationship between law and social movements over the twentieth century—how labor unions were steered away from rights claims while other social movements were steered toward them—continues to shape American law and politics today. In turn, upending the law of apolitical economy can be about more than reclaiming the normative stakes of labor unions; it offers an opportunity to reclaim a transformative vision of rights.
Check it out!
Friday, March 3, 2023
D'Andra Shu (South Texas) will be joining Laura Rothstein (Louisville, retired) and Ann McGinley (UNLV) on the 7th edition of Disability Law: Cases, Problems, and Materials (Carolina Academic Press, forthcoming in time for classes in fall 2024). Shu's a terrific addition to a terrific team and a critical casebook. Here's an excerpt from the authors' letter to adopters:
This message is being sent to you as a current or recent adopter of the 2017 edition of DISABILITY LAW: CASES, PROBLEMS AND MATERIALS. Except for this past summer, we have sent an annual Letter Update to all adopters. Our letter noted previously that until there was a significant number of changes to this area of law, a 7th edition was not contemplated. It is now time for the 7th edition, and we are scheduled to complete that edition for Carolina Academic Press in time for classroom use by Fall 2024. We will also be bringing in D’Andra Shu, Assistant Professor of Law at South Texas College of Law Houston, as a co-author.
Although there have been few Supreme Court decisions and no major statutory changes since 2017, a new edition makes sense now to address the range of COVID-related issues that have affected disability law and because of the current Supreme Court’s approach to areas of law that are highly regulated.
The 7th edition will retain what we believe to be key assets of our textbook—the Chapter Goals, Key Concepts and Definitions, and Hypotheticals (including some new ones). We do not contemplate any major reorganization of the text or adding or deleting any chapters. The Instructor Materials will be updated and will guide the faculty member through the changes and will continue to suggest areas where the instructor might wish to add material relevant to the state in which the course is being taught. The Power Points (and content for those with visual impairments) will be updated.
We would welcome any suggestions and thoughts from our adopters—including what you like about the text and what you would like to see more of. Are there parts of the book that you do not use? Are there topics you would like to see added?
For those of you using the textbook in fall 2023 or spring 2024, we are already working on the Letter Update and plan to make it available by July 1, 2023. This would incorporate issues from the previous letter updates and major new developments through this spring.
Thursday, February 9, 2023
Nick Ohanesian (ALJ; MSU adjunct) has just posted on SSRN his timely and important article Errors and Omissions: Applying Lessons from History to Decide the Future of Administrative Deference with Respect to the National Labor Relations Board. 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 what the world would look like without administrative deference and at the same time serve as a cautionary tale about how courts will behave when unrestrained. Labor law and the judicial treatment of labor unions provides a particularly vivid illustration in this regard. 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. This article will show how the history of the Courts and Congress with respect to labor unions should support continuing administrative deference to the National Labor Relations Board.
Monday, December 5, 2022
Congratulations to Susan Bisom-Rapp on the publication of her article The Role of Law and Myth in Creating a Workplace that 'Looks Like America', 43 Berkeley JELL 251 (2022)!!! Here's the abstract:
Equal employment opportunity (EEO) law has played a poor role in incentivizing effective diversity, equity, and inclusion (DEI) and harassment prevention programming. In litigation and investigation, too many judges and regulators credit employers for maintaining policies and programs rather than requiring employers to embrace efforts that work. Likewise, many employers and consultants fail to consider the organizational effects created by DEI and harassment programming. Willful ignorance prevents the admission that some policies and programming harm those most in need of protection.
This approach has resulted in two problems. One is a doctrinal dilemma because important presumptions embedded in antidiscrimination law are tethered to employer practices, many of which do not promote EEO. Simultaneously, society faces an organizational predicament because employer practices are driven by unexamined myths about how to achieve bias and harassment-free environments. Neo-institutional theory explains how this form-over-substance approach to EEO law and practice began and has evolved. This Article builds upon that theory by arguing that favorable conditions exist for a shift from a cosmetic to an evidence-based approach to legal compliance. Three developments mark the way forward: (1) a pathbreaking Equal Employment Opportunity Commission (EEOC) report; (2) the EEOC’s call for better research on DEI and harassment prevention program efficacy; and (3) new social science research discussing which DEI efforts are most likely to succeed and those most likely to prompt backlash.
To facilitate evidence-based EEO compliance, this Article advocates changes in liability standards. It also recommends the creation of a supervised research safe harbor for employers willing to work with researchers and regulators to assess and continuously improve their DEI and harassment prevention efforts. Finally, the Article urges lawyers to more frequently employ Brandeis briefs in litigation to place social science research directly in front of jurists. Solving the twin problems wrought by cosmetic compliance requires taking seriously the findings of social scientists. An evidence-based approach to DEI and harassment prevention would assist in restoring the promise of EEO law to create healthy, diverse, and bias-free U.S. workplaces.
Friday, November 4, 2022
Tuesday, October 25, 2022
Nicole Porter (Chicago-Kent) is distributing a flyer for the 2023 Louis Jackson Memorial National Student Writing Competition in Employment & Labor Law, sponsored by Chicago-Kent’s Martin H. Malin Institute for Law & the Workplace and Jackson Lewis P.C. She encourages students writing papers in the labor and employment law field to submit. The deadline for submissions is January 17, 2023.
Thursday, October 20, 2022
Congratulations to Orly Lobel (San Diego) on the publication of her new book, The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future (PublicAffairs 2022). Here's the author's description:
The Equality Machine is a cautiously optimistic response to the current techlash and fears of AI, automation, and datafication. I envision a more balanced path forward, one where we redirect digital technology for good. Much has been written about the challenges tech presents to equality and democracy. I argue that while we cannot stop technological development, we can steer its course according to our most fundamental values. Already, digital technology frequently has a comparative advantage over humans in detecting discrimination, correcting historical exclusions, subverting long-standing stereotypes, and addressing the world’s thorniest problems: climate, poverty, injustice, literacy, accessibility, speech, health, and safety. The book offers vivid examples, new research, and stories of leaders from academia, policy, and industry—from labor markets to dating markets-that inspire to have skin in the tech game and restore human agency in a rapidly evolving artificial reality.
Tuesday, October 11, 2022
On 12 October 2022, Paul Harpur (Queensland) will launch Universities Enable. It is a national disability steering group for the higher education sector. The group includes the Australian Federal Disability Human Rights Commissioner, a representative from Universities Australia, a Deputy Vice Chancellor from the University of Sydney, and Paul as founding chair. It aims to enable the university sector to enable it to realize disability equality and become disability champions of change. The workplace hook is because staff with disabilities is one of the main areas of interest. Universities have done reasonably well at training the disability leaders of tomorrow, but many have been less robust when it comes to policies and practices towards staff with disabilities – both academic and professional.
Friday, October 7, 2022
It's that time of year: SEALS is open for submissions for its 2023 conference, which will be held at the Boca Raton Resort in Boca Raton, Florida from July 23 to July 29 (although our panels will be only a couple of days of that).
At this point, please let me know if a) you're interested in participating in a SEALS panel TBD, or especially b) you have any ideas for a panel or discussion group. As a reminder, we can have any mix we want of either/both traditional panels--which are more typical research--or discussion groups, which involve a larger group engaged in more of a back-and-forth.
Tuesday, September 13, 2022
This article is the author's longstanding annual review of the Supreme Court's employment-related decisions of the term just ended. This year's article about the 2021 Term first summarizes every employment-related decision rendered by the Court through the end of the term in July of 2022. Each case summary is followed by the author's comments about the decision's significance to workplace stakeholders. Also included in this section are abbreviated summaries of all opinions and orders from the so-called "shadow docket" that are of consequence to employment relations. Next, the article provides short statements about each grant of certiorari for the upcoming term on issues affecting employment and labor law. The article concludes with brief additional commentary on the Supreme Court's work as it affects the American workplace.
This essay examines briefly four 2022 decisions of the United States Supreme Court dealing with forced arbitration of workplace disputes. The paper summarizes the factual background of each case and posits the effect of each decision on both employers and employees. The paper concludes by relating these four decisions to the Court's continuing embrace of compelled arbitration of employee claims.
Thursday, September 1, 2022
Many thanks to Tequila Brooks for word on these programs:
- On Thursday, 8 Sept. 2022 (10-2 ET / 4-6 GMT+2), the Second Annual Virtual Labor Law Forum is co-sponsored by the African Labour Law Society and will focus on Constructing and Deconstructing Racism: Tales of Work and Life in Virginia, the U.S., Europe, and South Africa. The panel will begin with the construction of Jim Crow labor laws in colonial Virginia, move to the adoption of US Civil Rights style strategies by Roma in the EU, continue through workplace race discrimination in post-apartheid modern South Africa, and end with the legacy of U.S. slavery in the modern U.S. workplace. Register here.
- On Wednesday, 14 Sept. 2022 (12-2 pm ET, 6-8 GMT+2), DC LERA will hold a hybrid viewing of a brand new 2022 documentary on the 1968 Memphis Sanitation Workers Strike. Also co-sponsored by ALLS, the film will be introduced by John Higgins and Mark Pearce, both formerly of the U.S. National Labor Relations Board. Afterward, there will be what we hope will be an international discussion of the film. If you would like to host a simultaneous viewing of the documentary for your labor law class, organization, or university, please email Tequila to coordinate - and all participate in the discussion together. Registration link pending (still working out final details with our other co-sponsor, The Georgetown Law School Worker Rights Institute).