The Law and Economics of Identity

24 Social norms, for example, have long had an important impact on gender roles in employment specifically with respect to work/family concerns.25 Moreover, one of the central conclusions of the famous Hawthorne experiments of the 1930s26 was that employee work effort is significantly influenced by the norms of the employee\u27s workgroup with respect to what constitutes an appropriate work level or output.27 Applying this analysis, employees are deemed not irrational when they don\u27t increase output in response to increased employer incentive pay; they are simply responding to workplace social norms-i.e., they don\u27t want to be ostracized by fellow employees as ratebusters

Card Check Recognition: New House Rules for Union Organizing?

MISSIN

Supreme Court Employment Law Cases 2001-02 Term

I set two simple objectives for the article. First, the article will summarize each of the cases. My intent is to provide those unfamiliar with the cases a brief review of the facts and a summary of the Court\u27s reasoning. Parts II through VI provide this discussion, grouping the cases by subject area. Second, in Part VII, the article provides a big picture analysis of the various cases. My intent is to identify trends, issues, interesting aspects and features of the Court\u27s term. My objective is to aid in our understanding of the patterns that might affect the Court\u27s treatment of future employment law cases

Of Sinking and Escalating: A (Somewhat) New Look at Stare Decisis

This article explores the concept of stare decisis from the escalation of commitment perspective. I argue that the theory of escalation of commitment provides a powerful tool that can be used in our understanding of the application of stare decisis . The literature on the use of precedent is extensive; however, this Article develops a new way of looking at case law development and stare decisis . In particular, the Article contemplates stare decisis as a decision-making process and then considers the academic literature in order that we may gain some insight into that process

Distilling the Essence of Contract Terms: An Anti-Antiformalist Approach to Contract and Employment Law

A look at the development of labor and employment law in the U.S. reveals one astonishing principle. There is an underlying assumption that employers own the time and activities of employees, and thus any change in the allocation of rights between employers and employees has to be justified against the “interference” with the rights of employers. For example, whenever legislation has been introduced intended to protect workers\u27 rights, employers have argued that such protections will interfere with the right of employers to control their employees. This argument has been successfully made many times, and it has, I argue, shaped the debate on workers\u27 rights. By arguing that the employees\u27 time and activities are employers\u27 “property,” employers have successfully shifted the default allocation of rights in their favor. The argument, which according to employers has become a truism, can be succinctly stated as follows: since employers “buy” the time of employees, employers presumptively have the right to control all aspects of the employees\u27 life while at work, and at times even outside of work. This argument can be found in both academic writings and in judicial opinions

Whose Team Are You On? My Team or My TEAM?: The NLRA\u27s Section 8(a)(2) and the TEAM Act

This article analyzes employee participatory programs from the internal labor markets perspective. Internal Labor Markets (“ILM”) refer to the explicit or implicit agreements between employer and employees incorporating rules governing wages, working hours, promotion opportunities and grievance procedures. In order to function properly, ILMs require employees to learn skills that are valuable to the contracting firm, but are of much lesser value elsewhere. Employees agree to acquire such “firm-specific” skills and employers agree to subsidize the training needed to obtain these new skills. It is a mutually beneficial arrangement: employers expect to observe increases in productivity and efficiency and employees expect increases in pay and employment security as their tenure with the firm increases. These implicit or explicit agreements, however, may not be realized. A countervailing characteristic of ILMs is that once established, both parties might have strong incentives to refuse to perform, that is, to engage in opportunistic behavior. Examining ways to prevent such behavior is the central theme of this Article

Supreme Court\u27s 2002 Term Employment Law Cases: Is This Justice Scalia\u27s Court?

In a recent article,\u27 Erwin Chemerinsky argues that the Supreme Court\u27s constitutional law decisions of the 2002 Term cannot be explained by any overarching theory or underlying set of interpretative principles. Instead, he argues, constitutional law is all about value choices made by the Justices. Professor Chemerinsky also argues that given the current composition of the Court, it is the value choices of the middle - Justice O\u27Connor and Justice Kennedy - that matter the most. Professor Chemerinsky ends his article with the assertion that [f]or better or worse, this really is the O\u27Connor Court. In reviewing the cases decided by the Court during the 2002 Term, this article explores whether Professor Chemerinsky\u27s assessment of the constitutional jurisprudence of the Supreme Court holds true in the employment law context. Unlike the situation described by Professor Chemerinsky, when it comes to employment law decisions, at least those involving statutory interpretation disputes, the Court often speaks with one voice, frequently reaching unanimous or nearly unanimous opinions. Value choices do not appear to be driving the Justices\u27 behavior in these cases. Instead, employment law decisions can be explained in terms of a text- and rule-based approach, most directly linked to Justice Scalia and the conservative block of the Court. Under this approach the Court first looks at the statute\u27s text, interpreted in the light of proper English and related statutes. If the text of the statute is unclear, the Court finds a rule to decide the case, and at least under Justice Scalia\u27s interpretation of this approach, the chosen rule should be one that minimizes the opportunity for judicial lawmaking.\u27 The various statutory interpretation decisions reviewed in this article fit this approach remarkably well and help us understand the outcome of these cases. Value choices are not completely irrelevant in describing the employment law decisions of the Court, however. The unanimity of voice with which the Court speaks in statutory interpretation employment cases appears to be weaker in cases in which the Court is called to apply common law principles, and in constitutional law disputes

A Tale of Three Statutes . . . (and One Industry): A Case Study on the Competitive Effects of Regulation

The comparison of the three labor regulatory regimes raises an interesting counterexample to the traditional model of regulation. Instead of adopting a one-size-fits-all model, could a regulatory model be conceptualized where a menu of regulatory options is made available to the target population? Under such an approach those affected by the regulatory regime will choose among the various regulatory options and adopt those that better fit their particular situations. Part IV.B develops the basic parameters of this proposal. The article ends with a brief conclusion