Employment as Transaction

This piece offers a fresh perspective on the upper-level employment law class based on the theme of employment as transaction. Like much of law school, employment law is often taught from a public advocacy perspective in which the primary role of the lawyer is to vindicate workers\u27 rights or responsively defend managerial action. As a doctrinal matter, however, courts are showing increased attention to the role of private ordering in defining workplace rights and assessing liability, even in regulatory areas. Courts routinely examine employers\u27 efforts to redress unlawful behavior under antidiscrimination law and consistently sanction the use of arbitration agreements waiving rights to a federal jury trial if they satisfy the requisite contract formalities. At the same time, an evolving branch of employment law scholarship has recognized the role of corporate actors and other intermediaries in achieving the normative goals of workplace regulation. Thus, the way in which employers internally implement and respond to the law is an important site of study for those seeking to ensure the realization of legal rights. These complementary developments in law and theory provide both a unifying theoretical framework for teaching employment law and policy and an opportunity to reconfigure the course to address both recent and long-standing critiques of legal education. A principle insight of the Carnegie Foundation\u27s 2007 report on the quality of legal education is that legal pedagogy artificially segregates instruction in substantive expertise, practical skills, and professional values. Using an actual class exercise as an illustration, the piece demonstrates how a basic employment law course can be redeployed as a skills/doctrine hybrid that not only integrates practical training into the substantive course, but exposes students to the especially neglected area of transactional skills. Incorporating a transactional learning experience is a significant stride toward preparing students for a proactive practice in which they are capable of counseling clients, ensuring regulatory compliance, and managing risk, skills sorely needed in a world of increasingly transactionalized relationships

The New Enforcement Regime: Revisiting the Law of Employee Competition (and the Scholarship of Professor Charles Sullivan) with 2020 Vision

This Article, prepared for Seton Hall Law School’s 2019 Symposium on the scholarship of Professor Charles Sullivan, labels and critiques “the new enforcement regime” in employee mobility law. For centuries, employee noncompetes have been regulated primarily through the common law rule of reason. The last decade, however, has witnessed a surge in public initiatives seeking to restrict employers’ use and enforcement of these agreements. They include proposed legislation, regulatory undertakings, class action litigation, and state enforcement programs that seek reforms ranging from an end to the use of noncompetes with vulnerable workers to the outright prohibition of all forms of employee restraints.This budding regime has the potential to upend basic enforcement rules and status quo employer practices. Against this regulatory backdrop, and in celebration of Sullivan’s work, this Article makes two contributions. First, it locates the current reform movement within an emerging economic literature that is exposing the harmful impact of noncompetes on employees and the economy. Recent data reveal that employers use noncompetes more commonly than supposed, including in contexts where they are clearly unlawful or unlikely be enforced. This research owes a debt to the foundational work of Sullivan and other legal scholars who have long warned of likely in terrorem effects of overbroad agreements that go unchallenged in court. Such concerns have now been empirically validated and are at last being heeded.Second, the Article provides a template for effective legislative reform. The convergence of academic research from multiple disciplines with real-time reform activity on the ground make this a critical moment for noncompete policy. Proposals thus far have not gone far enough in deterring and sanctioning employer overreach. Short of banning noncompetes altogether, the most effective new laws will be those that do the following: (1) ensure that employees have access to information about the limited enforceability of noncompetes; (2) preclude judicial modification of overbroad agreements; and (3) create streamlined pathways for employees to test the validity of their noncompetes and remedy unlawful noncompete practices. The Article calls on policymakers and advocates to capitalize on the current political will. Bolder restrictions and procedural protections must be devised, attentive to the real conditions under which employees agree to and abide by these far reaching restraints

The Best and Worst of Contracts Decisions: An Anthology

Five hundred years ago, the common law of contract was without substance. It was form-procedure. Plaintiffs picked a form of action, and common law judges made sure someone besides themselves answered all the hard questions; the parties, a jury, or a ritual determined the winner and the remedy. Judges ran a switch on a conflicts-resolution railway. Thomas More, when Chancellor of England (1529-33), urged judges to lay tracks and control the trains. The problem, he said, was that the judges, by the verdict of the jury[,] cast off all quarrels from themselves. The judges soon assumed greater authority, taking responsibility for the law\u27s substance. The consideration requirement was in place by 1539, and judges afterwards imposed doctrine upon doctrine. Over centuries, they created the common law of contract. That law is now mature, more or less, meaning that judges have tools to fix what they want to fix, and feel free to do so. The law they created-the common law of contract-is a remarkable intellectual and political achievement

A Reconsideration of the Role of Substantive Fairness in Enforcing Employee Noncompetes

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