Labor and Employment Law
AI and Captured Capital
An AI arms race and a laissez-faire approach to globalization enable a borderless labor market without labor protections and the capture of workers’ capital. Proposed redress includes: (1) workers’ data as stake capital, (2) a data-licensing regime, and (3) a guaranteed income fund organized by the International Labor Organization.
Data Laws at Work
Recognizing harms arising from the growing use of automated systems for labor control, the European Union (EU) has passed an array of digital-rights protections for workers. This Essay argues that the EU framework fails to account for the formal subordination of workers and proscribe the harms of algorithmic labor control.
Gig-Economy Myths and Missteps
This Essay disputes the myth that employment, unlike independent contracting, is inherently inflexible. It traces the roots of this widely shared belief to corporate propaganda and rejects “third-category” legislation based on this fiction. Finally, the Essay cautions labor enforcers to avoid the third-category sham in negotiated misclassification settlements.
Against the Work-Study Boundary: Synthesizing Title VII and Title IX Protections for Student-Employees
Courts routinely deny student-employees facing sex discrimination the expansive Title VII protections they deserve, and student-employees often fail to bring Title IX claims that more fulsomely capture this discrimination. Looking forward, courts should synthesize Title VII’s protections with Title IX’s coverage by considering education-based evidence when evaluating Title VII claims.
Supply-Chain Wage Theft as Unfair Method of Competition
This Note argues that wage theft in the fissured economy is a competition problem, not just a labor problem. It first recovers a historical understanding of substandard wages as an unfair method of competition. It then proposes FTC action against supply-chain wage theft using Section 5 of the FTC Act.
After the Law of Apolitical Economy: Reclaiming the Normative Stakes of Labor Unions
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. This Feature argues that this choice, what I call the law of apolitical economy, continues to shape how we understand unions—and much more—today.
Between Public and Private: Care Workers, Fissuring, and Labor Law
Although states set wages and regulate working conditions, NLRA-covered care workers are often restricted to bargaining with their private employers. To address this challenge, this Note argues that states should recognize their implicit joint-employer relationship with these workers, enabling care workers to bargain with the state over state-controlled employment conditions.
Concerted Arbitration
With the emergence of mass arbitration, companies that once promoted arbitration now seek to block employees from arbitrating claims. This Essay argues that employees have a right to mass arbitrate their claims because mass arbitration is a concerted activity protected by the National Labor Relations Act.
The Limits of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act
The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act was supposed to eliminate forced arbitration of cases involving sexual misconduct. This Essay explains why the Act fails to do so. In addition, it outlines what lawmakers and courts can do to fix this problem.
Capitalist Development, Labor Law, and the New Working Class
Gabriel Winant’s The Next Shift charts the transformation of Pittsburgh’s political economy from World War II through 2008. This Review suggests that the long-term process of capitalist development—which is central to Winant’s account—also helped to reshape our labor law over the same period.
Solidarity, Legitimacy, and the Janus Double Bind
Janus’s failure to recognize a state interest in labor organizing contained a twofold mistake. Organizing develops a culture of civic trust. In turn, civic trust is necessary for citizens to accept the sorts of accommodations raised by conscience-based exemptions claims—like Janus’s—that the state must legitimize.
Unemployment Insurance for the Gig Economy
Historically, U.S. unemployment insurance has excluded workers lying outside the conventional employer/employee binary. That should change. This Essay argues for extending benefits to gig-economy workers, via structures fashioned after states’ existing unemployment programs. It grounds its argument in two philosophical traditions foundational to tax-law scholarship: liberal egalitarianism and utilitarianism.
Constructing Countervailing Power: Law and Organizing in an Era of Political Inequality
This Article proposes an innovative approach to addressing political inequality: using law to facilitate organizing by the poor and working class – as workers, tenants, debtors, and welfare beneficiaries. The Article offers a new direction for the literature on political inequality and critical lessons for government officials, organizers, and advocates.
The Once and Future Countervailing Power of Labor
Drawing on the law that supported labor movement’s exercise of countervailing power against 1930s plutocracy, progressive social movements can use law to create a new political economy. But, as a condition of granting labor power, law channeled unions away from radicalism. Powerful class-based movement organizations find law an unreliable ally.
“There Is No Such Thing as an Illegal Strike”: Reconceptualizing the Strike in Law and Political Economy
Workers today are rediscovering the power of the strike and upending jurisprudential categories. Strikes are not just “economic weapons”; they are political protest. And like Progressive Era strikes, the success of strikes today may be in legitimating a new vision of law and political economy.
Black Progressivism and the Progressive Court
This essay discusses Black progressive texts – Thomas Fortune’s Black and White, Ida Wells’s The Reason Why, and two statements of the Niagara Movement – and explores how the themes they developed contain a critique of the underlying rationales of the Supreme Court’s jurisprudence of the same period.
Labor’s Antitrust Problem: A Case for Worker Welfare
Labor and antitrust have historically been at odds: workers have faced antitrust liability for organizing, as the market power of employers has grown. Motivated by recent developments in the gig economy, this Note argues that antitrust law must preserve the welfare of workers, and proposes reforms to achieve that vision.
Better Together? The Peril and Promise of Aggregate Litigation for Trafficked Workers
Procedural rules often prevent classes of trafficked workers from vindicating their rights in court. This Note examines the difficulties that face labor-trafficking class actions and proposes a new litigation strategy. That strategy urges state attorneys general to bring a more effective kind of aggregate suit on behalf of trafficked workers.
Constraint Through Independence
Skepticism of the federal bureaucracy has inspired growing calls to cabin the independence of certain agency actors, including administrative law judges (ALJs). Through a holistic assessment of NLRB case law, including a novel empirical study, this Note argues that eliminating ALJ independence would counterproductively undermine judicial review of agency adjudications.
The #MeToo Movement Migrates to M&A Boilerplate
A new provision in M&A boilerplate addresses the business risk of sexual-harassment allegations in the #MeToo era. While the #MeToo clause was designed to maximize corporate profit, this Note argues for its potential to both reduce buy-side risk and to incentivize companies to maintain effective reporting channels.