The Collegian (1999-10)

https://scholarworks.utrgv.edu/collegian/1280/thumbnail.jp

The Collegian (1999-12)

https://scholarworks.utrgv.edu/collegian/1278/thumbnail.jp

The Collegian (1999-11)

https://scholarworks.utrgv.edu/collegian/1279/thumbnail.jp

The Collegian (1999-09)

https://scholarworks.utrgv.edu/collegian/1281/thumbnail.jp

College Athletes as Employees: An Overflowing Quiver

This article discusses whether college athletes should be considered employees under a broad range of employment statutes. The central thesis is that, if college athletes are persistent, it is inevitable that some of them, somewhere, sometime, will be found to be employees. A major reason for this is that the basic rules for determining who is an employee lean in college athletes’ favor across a broad range of employment statutes, including private- and public-sector collective bargaining laws and laws protecting individual employment rights. College athletes are also likely to be classified as employees at some point because there are literally hundreds of different employment statutes. College athletes will have many independent opportunities to present their claims. Finally, claims by the NCAA and its member institutions to a special exemption for coverage under all these statutes are weak. The analogy to antitrust law, where the NCAA has been treated favorably, is inapt. Moreover, the courts will be reluctant to create non-statutory exceptions to important state and federal labor protections where the legislature has failed to do so

Legal Education as a Private Good

This short Article is intended to be positive, not normative; it is an exploration of the current situation viewed through a particular lens. Through that lens, the Article is intended to be a clear-eyed description of where we are. The current situation presents serious problems of affordability and accessibility. In the long run, society will suffer from these problems; it will suffer doubly because certain demographic groups will lose access disproportionately. Again, I would prefer the old world where it was recognized that education generally and legal education in particular provided important public goods and where society acted to ensure that those public goods continued to be provided. But I do not see a path back to that world. Thus, this Article is not about that world, but about the world in which we find ourselves. Let us begin by considering law school pricing in a world where a legal education is purely a private good. First, as I mentioned above, when viewed as a capital asset, the most a law student should be willing to pay for a legal education would be the present discounted value of the increase in expected earnings from a law degree. There have been several studies along these lines, and the evidence is mixed about whether the current cost of a legal education is “worth it” in this sense. Professor Schlunk, who has probably done the most careful analysis, concludes that a legal education pays off for about 31 percent of average students, 21 percent of good students, and 31 percent of exceptional students. But he skews the analysis against profitability in a number of ways, such as considering only private school tuition, assuming no scholarships, and assigning a discount rate of 12 percent. With more generous (or realistic?) assumptions, his analysis may well have resulted in a net financial surplus from a legal education for the average student. Professor Organ’s analysis in this volume accounts for some of these shortcomings, for example, by taking scholarships into account. He finds that law school is worth it (results in at least marginal financial viability) for about 46 percent of all Class of 2011 graduates and for at least 70 percent of 2011 graduates at about one-quarter of all law schools. This analysis takes scholarships into account, so Professor Organ’s estimates are probably closer to the mark than Professor Schlunk’s. Nevertheless, his analysis also contains elements that may skew it against profitability, so the actual numbers may be somewhat better than this

Transparency and Reliance in Antidiscrimination Law

All antidiscrimination laws have two structural features – transparency and reliance – that are important, even central, to their design, but have gone largely unnoticed. On transparency, some laws, like the recent salary-ban laws, attempt to prevent the employer from learning about the disfavored factor on the theory that an employer cannot rely on an unknown factor. Other laws require publication of the disfavored factor, such as salary, on the theory that it is harder to discriminate in the sunlight. Still other laws are somewhere between these two extremes. The Americans with Disabilities Act, for example, limits but does not preclude employer inquiries into disability status. On reliance, most antidiscrimination statutes, like Title VII, ban reliance on disfavored factors. But other statutes do the opposite of banning reliance – they require employers to rely on the factor. For example, a general feature of accommodation statutes is an obligation on employers to rely on the identified factor. Still other laws, like the salary-ban laws, permit but do not require reliance. This article is the first to explore these important and surprisingly unnoticed and unexplored features of antidiscrimination laws. Viewing antidiscrimination laws through the lens of transparency and reliance presents a new and interesting way to think about current laws and a roadmap for thinking about where future laws should be placed within the transparency-reliance matrix