Lost in Translation: The Economic Analysis of Law in the United States and Europe

In this essay, we examine the reasons why the economic analysis of law has not flourished in European countries as it has in the U.S. In particular, we focus on three European countries - the United Kingdom (U.K.), Germany, and France. We argue that differences in culture, the legal system and the academy have led to differing degrees of success of the law and economics movement in each country. We speculate that, although there is currently less interest in the economic analysis of the law in Europe than in the United States, European interest could dramatically increase if scholars adopt more communitarian analyses aimed at analyzing legislative polices rather than judicial decisions

The Duty to Bargain in Good Faith: NLRB v. Truitt Manufacturing Co. and NLRB v. Insurance Agents’ International Union

This article discusses two classic Supreme Court cases from the 1950\u27s that explore the contours of the obligation to bargain in good faith: NLRB v. Truitt Manufacturing Co. and NLRB v. Insurance Agents\u27 International Union. In the Truitt case, the Supreme Court held that the obligation to bargain in good faith requires an employer to open its books to the union when the employer refuses a request for a wage increase on the basis that such an increase will drive the employer out of business. In the Insurance Agents\u27 case, the Supreme Court held that union slow-down tactics were consistent with the union\u27s obligation to bargain in good faith even though these tactics were not protected by the NLRA. These two cases are considered together because their seemingly inconsistent holdings illustrate the tension in the NLRA between regulating the conduct of collective bargaining to promote the parties\u27 ability to bargain cooperatively in industrial peace, while still allowing the recourse to economic weapons that is necessary for the process of collective bargaining. This chapter offers the stories behind these two great cases, the arguments the lawyers made on behalf of their clients, how these cases were resolved by the Board and the courts, and some of the theory behind what it means to bargain in good faith

The Changing Face of Collective Representation: The Future of Collective Bargaining

Although the obstacles to employee organization appear daunting, this is an exciting time to be involved in the American labor movement. Just as the movement had to adapt as industrial methods of production were adopted around the dawn of the twentieth century, so too must it now adapt to the changed circumstances of the working people under the new information technology in a global economy. Employee interest in some form of representation or mutual aid and support remains high, as workers confront issues of increased risk, lower job security, and pervasive downward pressure on wages and benefits. In this essay, Professor Dau-Schmidt examines how the American labor movement is responding to the challenges of the new economic environment in new and creative ways. He argues that, as employers become boundaryless using the new information technology in the global economy, unions will have to become boundaryless and organize on multi-employer, sectoral, occupational, professional, national, or international bases. He also asserts that we are likely to see worker organizational objectives that transcend the objectives of higher wages and benefits from a particular employer sought through traditional bread-and-butter collective bargaining. Higher wages and better working conditions will of course remain one of the primary objectives of worker organizations, but they may be achieved within the context of larger area standards contracts, corporate codes of conduct, local and state laws, national laws, or international treaties. Finally, Professor Dau-Schmidt argues that we are likely to see more employee collective action that surmounts the traditional strategies of withholding labor or boycotting goods to achieve higher wages and benefits for the employees of a particular employer. Strikes and boycotts will continue to be important weapons in labor\u27s arsenal, but workers also will use other weapons—supporting and organizing worker efforts to enforce their legal rights outside of the collective bargaining relationship and using the political process to achieve successes that cannot be won at the bargaining table

A Conference on the American Law Institute\u27s Proposed Restatement of Employment Law

In this volume, the Employee Rights and Employment Policy Journal presents the written reports of three working committees organized by the Labor Law Group on the American Law Institute’s Proposed Restatement (Third) of Employment Law, along with various written comments on and responses to these reports. These reports and comments were originally presented on February 7, 2009, at a conference on the American Law Institute’s Proposed Restatement (Third) of Employment Law held at the University of California – Hastings School of Law and co-hosted by the School of Law and the Labor Law Group. As the Chair of the Labor Law Group, it falls to me to provide the readers with some context on the working committees and their reports and the conduct of the conference. In this introductory essay, I will present a brief discussion of how the Labor Law Group came to appoint the working committees and undertake this conference with the law school, what we understand the American Law Institute (ALI) to be attempting to accomplish with its Restatement, what we are attempting to accomplish with the papers in this conference, and a brief summary of the working committee reports and conference comments on the proposed Restatement

Labor Law 2.0: The Impact of New Information Technology on the Employment Relationship and the Relevance of the NLRA

The NLRA system of collective bargaining was born during the industrial age of the early twentieth century. As a result, key terms in the statute such as employee, employer, and appropriate bargaining unit were first interpreted in the context of long-term employment and large vertically integrated firms that dominated this era. Beginning in the late 1970s, the new information technology wrought a revolution in the organization of production increasing short-term contingent employment and the organization of firms horizontally in trading and subcontracting relationships across the globe. To maintain the relevance of collective bargaining to the modern workplace, the interpretation of the key terms of the NLRA must be updated to recognize the changed circumstances of production and interpret union access and employee mutual support in light of the new technology. However, new information technology promises further changes in the workplace with the accelerating mechanization of many jobs and perhaps a fundamental change in the relationship between labor and capital with the development of artificial intelligence. In this Essay, I explore the implications of new information technology for the workplace, the interpretation of the NLRA, and the continuing evolution of American labor policy

The Labor Market Transformed: Adapting Labor and Employment Law to the Rise of the Contingent Work Force

The American labor market has been at the forefront of change in adapting the new information technology and engaging in global trade. These changes have led to new and increased use of contingent employment relationships such as part-time, temporary and subcontracted work which do not neatly fall under the definition of employee in most American protective legislation. With the advent of increasing numbers of contingent workers, these labor and employment laws must be reevaluated. In expanding upon Dr Richard S. Belous\u27 previous critical analysis, this paper argues for a broader statutory definition of employee in current and future protective legislation based on economic realities of dependency and control

Keynes Was Right!

Labor and Employment Law Under the Obama Administration: A Time for Hope and Change? Symposium held November 12-13, 2010, Indiana University Maurer School of Law, Bloomington, Indiana