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Abstract:
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.

Law and Economics, Law and Society, International, Comparative

Abstract:
This article is the first report on the results of the Indiana Law Alumni Survey, conducted on Indiana University Law School - Bloomington alumni over the last six years. The survey asks for responses from law alumni five and fifteen years out of law school to examine their reflections on their experiences with law school and their experiences in their careers. Extensive data are collected on alumni careers, type of practice, hours of work, income and job satisfaction, as well as personal and family characteristics.

The results show that Indiana alumni were active students, and are generally very satisfied when they think back to their law school experiences. Indiana alumni found law school particularly satisfying intellectually. Women were particularly satisfied with their law school experience. Students' participation in extra-curricular activities and employment may be indicative of their future career plans, as it seems that students chose to participate in activities they believed would help for the particular career they wanted to pursue.

We also find that, after graduation, Indiana alumni use their talents and skills to undertake successful careers in a variety of professional settings while attempting to balance work with family life. Traditional gender roles affect family life and career as male alumni are more focused on earning income and are more likely to be the primary breadwinner in any marital relationship, while our female alums report significantly greater childcare responsibilities. Women, Blacks, and Hispanics tend to be found in greater proportions as government attorneys, public interest attorneys or acting as corporate counsel, and the women who go into private practice tend to be found disproportionately in the larger law firms. Women and Blacks report lower incomes than men who are predominately found in private practice, while they report similar job satisfaction. Women tend to report higher levels of satisfaction with their families. The personal traits of the examined lawyers and the family choices they make can have profound effects on their careers.

Legal Profession, Income, Job Satisfaction, Empirical, Race, Gender

Abstract:
IIn this study, we use the University of Michigan Law School Alumni Data Set to undertake an empirical analysis of the impact of gender on the legal profession and the differences that gender makes in the careers and lives of attorneys. With regular survey responses from Michigan alumni from 1967 until the present, the University of Michigan Law School Alumni Data Set provides a unique opportunity to examine these questions from the days when female attorneys were rare, to the arrival of the first generation of women to achieve significant presence in the legal profession.

The entry of women into the legal profession has forever changed both lawyers and the legal profession. Women have brought to the profession a different set of assets and problems than men. Although there is of course tremendous overlap in personal characteristics between the genders, on average the women report that they are more desirous of social change, compassionate, honest and liberal than the men. On the other hand the men report that they have a greater desire for money and are more confident, better dealmakers and more aggressive than the women.

Moreover, because of their different roles in courtship and the family, men and women lawyers tend to have different family characteristics and tend to address the problem of accommodating work and family in different ways. The men are more likely to be married, have a spouse who focuses on childcare and have more children while the women are more likely to have a spouse with an intense job and enjoy much higher spousal income. In balancing productivity in the workplace and the home, the men work 32.7% more hours outside the home than the women fifteen years out of law school while by this same time the women are more than twelve times as likely to have taken time off from paid work to do childcare. Among the 3.2% of men and 39.6% of women who have either not worked or worked part time to do childcare by fifteen years out of law school, the average number of months they have taken reduced paid work to do childcare is 23 for the men and 58 for the women - or almost 5 years!

These differences in personal and family characteristics, and in particular whether the attorney takes time away from paid work to do childcare, can have an enormous impact on a person's career. Reflecting their different levels of desire for money and social change, and their different commitments to childcare, men are more likely to go into private practice and business, while women are more likely to go into corporate counsel positions, government work, public interest work and legal education. Within practice, men are disproportionately drawn to specialties and activities that yield high income while women are drawn to specialties and activities that yield predictable and lower hours. On average, men with children who have not taken time away from paid work to do childcare work the most hours in a year (2520) followed by men and women who do not have kids (2341), men who have taken time away from paid work to do childcare (2092), women with kids who have not taken time away from paid work to do childcare (1908) and women who have taken time away from paid work to do childcare (1328). Men are more likely to enter and stay in private practice, and to be a partner fifteen years after law school, but in taking account of family situation we find that men who have missed paid work to do childcare are the least likely group to remain in private practice and be a partner, followed by women who have missed paid work to do childcare. Our logistic regression of the probability of being a partner shows an insignificantly negative effect for being a woman, but this effect is disproportionately borne by women who do childcare who suffer a disadvantage similar to that of men who do childcare.

This myriad of decisions and events over the course of their careers results in significant differences in income and career satisfaction between men and women. Although they begin the practice of law with only a small difference in their average income, by fifteen years after law school women on average earn significantly less a year ($132,170) than men ($229,529). However, our means and regression analysis suggest that, once again, the impact of lower income is disproportionately borne by women who do childcare, who suffer a disadvantage similar to that of men who do childcare. In our regression analysis, only women who have done childcare show a significantly negative impact on income and that impact is similar to the negative impact on income suffered by men who have done childcare. However, the reward for women who do childcare is that they enjoy significantly higher career satisfaction and satisfaction with their work/family balance than the men, or the women who do not do childcare. The impact of childcare on men's career satisfaction is mixed and less clear, but men who do childcare do report being significantly more satisfied with their work/family balance than the men or women who have not missed paid work to do childcare.

Legal Profession, Income, Job Satisfaction, Empirical, Gender, Women, Men

Abstract:
In many ways, these are among the darkest days for the American labor movement. Union membership in the private sector has declined from 36% to 8% from the 1950's to the present. Large organized companies like Ford, GM and their parts suppliers are in bankruptcy, or threatening the same, and drastically cutting their work forces and demanding wage cuts and benefit reductions. The largest private employers in the economy, Manpower Inc. and Walmart, steadfastly resist organization and adopt policies promoting low wages. Real wages in the economy as a whole have remained stagnant for almost three decades now, as more and more manufacturing jobs are sent overseas, or disappear altogether due to technological innovations. Finally, until the most recent election, the Republican party - no friend of labor's - controlled the Presidency, Congress, the Supreme Court, the Board and a majority of governorships and state legislatures. Even with the Democrats' recent electoral gains in Congress and the states, the prospects for labor's legislative agenda seem dim.

Yet this is also a time of great innovation and excitement in the labor movement. The Justice for Janitors movement has organized and negotiated minimum terms for cleaning personnel employed by cleaning contractors to clean and maintain office buildings in Los Angeles, New Jersey and elsewhere in the country. The Coalition of Immokalee Workers, lead a successful four-year boycott against Taco Bell to convince their parent company Yum Foods to pressure growers who supply the chain to raise wages for agricultural workers. New York free lancers in writing, art, financial advice and computers have organized themselves for the purchase of health insurance and other benefits in the organization Working Today. Farm laborers from Mexico and the United States have combined to support the organization of apple-pickers in Washington State, filing complaints under the NAFTA agreement accusing the apple industry of violating labor rights and threatening the health and safety of migrant labor. The AFL-CIO has organized almost a million new affiliate members through community based in its new political affiliate association Working America. Finally, seven powerful unions have organized themselves in the new Change to Win Coalition, promising innovative strategies for organizing and representing the interests of working people.

Why do we see such innovation, even excitement, in the American labor movement, at a time when, by all objective measures, the movement is flat on its back? I will argue that recent changes in the American labor movement represent the beginning of its adaptation to changes in the employment relationship that have occurred as we have moved from production organized according to industrial technology, to production organized under the new information technology in the global economy. A previous change from artisanal to industrial methods of production around the beginning of the twentieth century presaged great change, and growth, in the American labor movement. Similarly, as the American economy transitions from industrial methods of production to adopt new structures utilizing information technology, the American labor movement is being prompted to organize and undertake collective action in new ways, that will hopefully lead to its resurgence. The innovations in the American labor movement to adjust to this change in technology and the employment relationship are what account for the current excitement in the movement.

In this lecture, I will present a brief history of the American economy and trace how changes in the methods of production led to changes in the employment relationship and the collective organization of workers. After a brief discussion of the transition from artisanal to industrial production, I will focus on the more recent changes engendered by the new information technology and the globalization of the economy. My hope is that this discussion will illuminate the significance to recent developments in collective organization and help us divine the future course of the American labor movement.

Economics, Labor, Unions, Collective Bargaining, Labor Law

Abstract:
This paper presents an empirical analysis of criminal antitrust prosecutions undertaken by the Department of Justice during the period 1955-1993. The authors report data on the number of criminal cases, the type of offense alleged, whether the defendants were individuals or firms, the position individual defendants held in their firm, the Department of Justice's won/lost record and the nature and amount of any sanctions imposed. A brief discussion of whether the reported sanctions have been adequate to promote efficient deterrence is also presented.

antitrust, criminal, penalties, empirical, law and economics

Abstract:
In the last three decades, the American labor market has undergone a dramatic transformation that has heralded enormous change in the governance of the workplace. The development of new information technology and the rise of the global economy have decentralized firm decision-making and brought the market into the firm in ways that have not previously been experienced. These changes have made possible a new flexibility in many production methods which allows the vertical disintegration of firms, compartmentalization of production and the out-sourcing of work on the global market. Firms can now organize production on a global scale, coordinating parts production with suppliers from across the globe, assembling engines and transmissions in Asia, and doing final assembly in consumer countries, using subcontracted or temporary labor. As a result, the paradigmatic employment relationship in the United States, and other developed countries, has moved away from a long-term relationship governed by internal labor market rules within a centralized managerial structure, toward a short-term relationship governed by international labor markets in a decentralized managerial structure.

This transformation in the labor market has contributed to the decline of union representation in America. The decline of hierarchical management and the role of internal labor market rules has robbed unions of some of their traditional function of representing employees within this hierarchy. Indeed, the new systems of decentralized management, employee involvement and subcontracting, combined with same very generous Supreme Court interpretations of the managerial and supervisory exemptions under the National Labor Relations Act (NLRA) have left from 31- 40% of employees uncovered by the Act. At the same time, the rise of the global labor market and the movement of manufacturing jobs overseas has undermined unions' bargaining power. American unions are representing less and less people, and bringing less clout to bear at the bargaining table. As a result, more and more American workers find themselves in a system of workplace governance based on individual contract within a context of common law rules and state and federal legislation rather than collective bargaining.

Moreover, the development of the new information technology, the rise of the global economy and the corresponding decline of unions has lead employers to negotiate or impose different terms in individual employment contracts. With the decline of long-term employment, employers have sought to protect their investments in training and intellectual property by requiring covenants not to compete and follow-on clauses, while attaining greater flexibility in the employment relationship by reducing expectations of job tenure and deferred benefits. Additionally, as union representation has declined in the private sector, employee litigation has come to loom large in the minds of employers and they have turned to alternative methods of dispute resolution to avoid litigation and communicate with their employees even in the absence of a union. In particular, the practice of arbitration pursuant to individual employment contracts, or employment arbitration, has grown, encouraged by legislation and court decisions favoring the procedure.

Finally, perhaps in response to the decline of employee rights in the new economic regime, in recent years there has been a modest erosion of the traditional common law doctrine of employment-at-will that undergirds the American system of individual contract. In the last three decades, courts in many jurisdictions have developed common law exceptions to the employment-at-will doctrine for discharges in violation of public policy, public duty, implied contract and the implied covenant of good faith and fair dealing. At the same time, many state legislatures have passed statutes protecting employees from discharge in certain cases. These common law and statutory exceptions have circumscribed an outline of basic common law protection against the worst abuses of employer power in the system of individual contract.

In this essay, we will set forth an empirical outline of the contemporary individual contract regime of workplace governance regime in the United States. Because of the breadth and diversity of the individual contract regime, this description cannot be exhaustive. We focus almost exclusively on what is known about the contents of individual contracts for employment and recent common law and statutory restrictions on the employment at-will doctrine. Where appropriate we will make comparisons with the employee rights and procedures that exist under workplace governance through collective bargaining. In this way we hope to provide a brief description of what is currently known about the contours of this regime and how it varies from the regime of collective bargaining in order to provide a basis for further research.

Economics, Employment, Employment Contract, Employment Law, Employment-at-will, Arbitration

Abstract:
In this article, Professor Dau-Schmidt examines changes in the employment relationship due to new information technology and the rise of the global economy and explores the implications of those changes for labor and employment law. Professor Dau-Schmidt argues that information technology and the globalization of the economy have caused a shift in the paradigmatic employment relationship from one of long-term employment governed by an internal labor market and corporate administrative rules to one of short-term employment governed by an international spot market for labor.

This change in the typical employment relationship from one of long-term employment governed by an internal labor market to one of short-term employment governed by an international spot market for labor raises a host of issues for our national labor policies and labor and employment law. Increased employee turnover raises assessment and monitoring costs. How do we encourage employers to give letters of reference and allow employers to accurately assess and monitor employees' productivity, while still adequately protecting employees from defamation and needless infringements on their privacy? Increased employee turnover also poses a threat to employer trade secrets and investments in human capital. How do we allow employers to adequately protect corporate secrets and recoup training costs without unduly infringing on employee initiative and freedom of movement? Moreover, how do we ensure that employees obtain adequate training to maintain their productivity and standard of living in an economy in which training has become paramount? Moreover, in a labor market in which employees may have numerous employers over the course of their work life, how do we provide employees with the semblance of a career, complete with promotions and benefits comparable to those that were provided in the long-term employment relationships of the internal labor market? The increased competitiveness and turnover of the labor market have only increased obstacles to employee collective action and negotiation with their employers. How do we insure adequate opportunities for employee expression of a collective voice in this new environment? Finally, the globalization of the economy undermines nations' ability to undertake even efficient regulation that might put their employers at a competitive disadvantage. How do we maintain democratic values and the rule of law in a country whose economy dances to the tune of a global economy?

Professor Dau-Schmidt examines these questions and proposes several solutions that are consistent with the new information technology and global economy.

Labor law, employment law, information technology, global economy, globalization, job training, employee references, covenants not to compete, collective representation

Abstract:
My purposes in this essay are two-fold. First, I provide some background on the disciplines of economics and sociology as a basis for the discussion at this Symposium and for my own discussion of the potential for an interdisciplinary discourse on law. In this regard, in the first section of the essay I provide a brief history of the relationship between the two disciplines, a brief outline of the basic characteristics of each disciplinary perspective, and a brief discussion of the emerging opportunities for useful exchange between the two disciplines. Second, I examine the prospects that the economic analysis of law can be usefully informed by sociological perspectives. I examine just this portion of the possible discourse between the two disciplines because, as a law and economics scholar, it is this portion of the discourse that I feel most competent to address. I leave it to my colleagues who study law from a sociological perspective to discern what can be gleaned from the economic perspective that is of most use to them in their analysis.

Economics, Sociology, Law, Interdisciplinary, multidisciplinary

Abstract:
In this book chapter, I attempt to provide an economic analysis of the positive influences of unions on efficiency, equity and the governance of society, as well as an economic rationale for the regulation of collective bargaining to promote equity in bargaining power and industrial peace. This chapter draws on my previous work on the bargaining model of unions and collective bargaining, as well as work from the law and society literature and behavioral psychology. My analysis examines a variety of possible benefits of unions to society including: the redistribution of product market rents from employers to employees, increases in productivity due to employee organization, and the efficient evolution of the law and social rules with the transformation of workers from one-shot players to repeat-players through organization. The treatment of the costs of collective bargaining as positional externalities within the context of a dilemma game provides a rationale for government regulation to encourage cooperation between the parties to collective negotiations.

Law and Economics, Labor, Unions, Regulation

Abstract:
This is an empirical study of Department of Justice (DOJ) enforcement of the antitrust laws. Its purpose is fourfold:

1.To update Posner's study "A Statistical Study of Antitrust Enforcement" (Posner, 1970, pp. 365-419).

2.To provide consistent and comparable measures of antitrust enforcement effort by the Department of Justice.

3.To report these measurements in a concise and systematic way in order to encourage empirical studies of antitrust issues.

4.To explore some implications for antitrust issues.

The purpose is to present the overall historical record of DOJ antitrust activity as well as some patterns in that history. More detailed analysis is left for future work.

The following information for cases undertaken by the DOJ are reported: number of cases, choice of civil or criminal remedies, alleged violations, corporate officials prosecuted, won-loss record, civil and criminal sanctions imposed, and length of the proceedings. The principal source of data is the CCH Trade Regulation Reporter, commonly referred to as the CCH Bluebook which contains brief summaries of all DOJ antitrust cases in order of their filing.

Antitrust, Enforcement, Department of Justice, Empirical, Law and Economics

Abstract:
In this Article I provide an economic analysis of criminal law as a preference-shaping policy. I argue that in addition to creating disincentives for criminal activity, criminal punishment is intended to promote various social norms of individual behavior by shaping the preferences of criminals and the population at large. By taking into account this preference-shaping function, I explain many of the characteristics of criminal law that have heretofore escaped the logic of the economic model. It is also the preference-shaping function and the prerequisite ordering of preferences that distinguish criminal law from tort law. My analysis suggests that society will make an activity a crime whenever the social benefits of changing individual preferences through criminal punishment outweigh the social costs. However, since this weighing of social costs and benefits is conducted through a political process on the basis of ethical and moral standards and requires estimates of the costs of changing opportunities and preferences, I conclude that other disciplines can usefully inform the economic model of criminal law.

Criminal Law, Crime, Law and Economics, Preferences

Abstract:
In this Article, Professor Dau-Schmidt provides a comparative analysis of the labor laws of the United States, the United Kingdom, Germany, and Japan for the purposes of identifying which characteristics of a country's labor laws are likely to reduce strike incidence and intensity and promote industrial peace. To identify which characteristics of a country's law are likely to encourage industrial peace, Professor Dau-Schmidt presents game theory arguments based on his analysis of unions and collective bargaining. Dau-Schmidt then provides a simple empirical test as to the relative success of different countries' laws in advancing industrial peace by comparing data on the number of days lost per thousand organized workers for each of the examined countries.

Dau-Schmidt finds that countries, such as Germany and Japan, that encourage the sharing of information between employers and employees and effectively prohibit certain strategic behaviors by the parties, enjoy the most success in promoting industrial peace. In contrast, like United Kingdom, which has historically left collective bargaining unregulated even to the point of not enforcing voluntary agreements to arbitrate, suffers by far the worst record of encouraging industrial peace. Somewhere in between those two extremes lies the United States with requirements for limited exchanges of information and less effective prohibitions on strategic behavior, and intermediate success in encouraging industrial peace.

Labor Law, Comparative, Industrial Peace, Law and Economics

Abstract:
In this study we undertake a simple empirical analysis to examine the distribution of pecuniary and nonpecuniary benefits across the legal profession. Using the University of Michigan alumni data set, we conduct a series of regressions to examine how the participants' self-reported income and job satisfaction vary across the legal profession according to type of practice, gender, and whether the respondent is black or Hispanic. Regression analysis allows us to undertake this analysis while correcting for the effects of several other variables, including years of practice, hours worked, law school grades, satisfaction with family life, and population of the respondent's city of residence. We conduct the analysis on two separate subsamples of respondents - one for respondents who were surveyed five years after graduation and another for respondents surveyed fifteen years after graduation. Separate analysis of these subsamples allows us to obtain snapshots of the distribution of rewards across the profession at two distinct stages in lawyer careers. With the exception of certain tests that are performed on coefficients for minority status, the University of Michigan alumni data set is large enough and rich enough to allow a very interesting and detailed analysis of how the benefits of legal practice are distributed across the legal profession.

Legal Profession, Income, Job Satisfaction, Empirical

Abstract:
In this chapter, we present an outline of the economic analysis of the regulation of unions and collective bargaining. We begin with the simple model of the market for union services and analyze regulations that may increase or decrease either the demand or supply for union representation. In this way we provide an economic basis for evaluating government policies such as a prohibition on yellow dog contracts, a prohibition on discriminatory discharges, right to work laws and card check procedures for selecting a union, which may influence the demand and supply for union services and accordingly union density in the economy. Next we present simple expositions of the primary models of the impact of unions on wages and employment, including the monopoly model, the efficient contract or collective voice model and the median voter model. These models provide the basic framework for analyzing the impact of collective bargaining on equity, efficiency and voice. Finally, we discuss the concept of bargaining power and present two simple models of collective bargaining that depict the problem of strikes alternatively as a function of imperfect information and strategic behavior. These models provide a basis for evaluating government policies that are designed to change the relative bargaining power of labor and management such as allowing permanent replacements, allowing offensive lock-outs and allowing or prohibiting secondary boycotts. These models also allow us to evaluate the potential for government policies to promote cooperative labor relations and industrial peace such as requiring exchanges of information, good faith bargaining and appropriate bargaining units. The ultimate arbiter of the efficacy of various government policies is, of course, empirical work. Where appropriate, we cite the most important empirical work that is available on the examined problems.

economic analysis, regulation, unions, collective bargaining

Abstract:
Since the 1930s, the fundamental tenet of American labor law has been the government should foster employee organization and regulate industrial relations to promote equity in bargaining between employers and employees and to promote industrial peace. Those who enacted our basic labor laws, as well as the majority of the legal scholars who have since commented on those laws, believed unions necessary for workers to achieve the benefits of industrial democracy and a larger share of industry's profit.

Moreover, these same legislators and scholars believed that the government stewardship of labor relations should go beyond the mere removal of barriers to organization, to the active regulation of industrial relations conflicts with respect to organizing, collective bargaining, and enforcing collective agreements. Elections, the requirement of bargaining in good faith, and arbitration were advanced to replace the parties' cruder methods of resolving such conflicts. Without this extensive tutelage of labor-management relations, the legislators and legal scholars believed that conflicts in labor relations would escalate into strife and economic warfare and that many workers would be denied the benefits of dealing with their employers on equal terms.

The traditional economic analysis of unions and collective bargaining calls into question this fundamental tenet and thus the basis for much of American labor law. Proponents of this analysis argue that individual bargaining will secure for each worker all of the benefits to which she is entitled in accordance with her productivity. Unions achieve higher wages and benefits for employees by establishing a labor cartel, to which the employer responds by raising prices, cutting output, substituting capital for labor, and laying-off workers. Although the union may gain benefits for some workers, these benefits come only at the expense of consumers, other workers, and economic efficiency. Thus, the traditional economic analysis suggests that, rather than fostering unions and collective bargaining, the government should undertake measures to extirpate them. Far from promoting equity in bargaining between employers and employees, unions promote workers to a superior bargaining position – that of a labor cartel – and cause inefficiency and inequitable redistributions of income among similarly situated workers. Moreover, under this analysis, no sound basis exists for the government's efforts to regulate industrial relations to promote industrial peace.

In this article, I present an alternative economic analysis of unions and collective bargaining that utilizes recent advances in labor economics and some simple applications of game theory to address the deficiencies of the traditional monopoly model. First, I assume that the primary sources of union benefits are employer rents, quasi-rents, and productivity increases associated with unionism. These rents and productivity increases constitute the cooperative surplus that the parties divide through collective bargaining. Individual bargaining will not secure for employees a share of this surplus. The workers must organize and bargain collectively to raise themselves to a position of rough equality relative to the employer and gain a share of the surplus.

Second, in examining the problem of dividing the cooperative surplus, I assume that the parties bargain in a Coasean fashion to achieve a Pareto optimal solution that maximizes the value of the cooperative surplus to the parties. If one assumes such optimal bargaining, then one can show that the parties will agree to a contract that specifies a level of employment exceeding that given by the employer's labor demand curve. Combining this assumption of optimal bargaining with my previous assumption concerning the primary sources of union wage increases, I argue that employees' gains from organization come largely at the expense of their employers, rather than other employees or consumers, and that the productivity gains associated with unionism may outweigh any attendant inefficiency. It is therefore equitable, and perhaps wealth maximizing, for the government to encourage employee organization.

Finally, I argue that in conflicts over the division of the cooperative surplus, including organizing, collective negotiations, and enforcement of the collective agreement, both sides have incentives to act strategically, wasting a portion of the cooperative surplus in hopes of capturing a larger share of the surplus for themselves. Such strategic activities include discriminatory discharges, recognition strikes, intransigence in bargaining, and strikes or lockouts to enforce a given interpretation of the collective agreement. Moreover, because parties are often rewarded in these activities based on their recalcitrance relative to the other party, the costs of these conflicts are positional externalities that tend to escalate in the absence of government regulation. To illustrate these arguments, I present a simple game representing collective negotiations, which demonstrates that strategic behavior may be individually rational for each party to undertake, but collectively irrational, because it results in strikes that waste the cooperative surplus. Thus, it makes sense for the government to structure the conduct of organizing, collective negotiations, and enforcement of the collective agreement to prohibit or discourage strategic behavior and minimize waste of the cooperative surplus.

Labor Law, Collective Bargaining, Industrial Peace, Law and Economics, Game Theory

Abstract:
The globalization of the economy has placed tremendous pressure on the modern family. Throughout the developed world, marriage rates are declining, birth and fertility rates are falling, real wages are flat or declining, and hours of family external labor supplied are rising. Finding a spouse and raising children can be inconsistent with the demands of careers in the global economy of the new information age. Globalization of the economy tends to encourage individualism and mobility, in direct opposition to family relationships. Moreover, the extensive period of training that is necessary to compete in the global economy interferes with marriage and childrearing and increases the costs of raising children. Finally, the global economy has resulted in increased demand for flexible labor, requiring many lower- and middle-class families to increase time spent in the paid workforce often with little or no additional benefits.

This essay examines the different ways industrialized countries have responded to this problem and discusses the effectiveness of these possible solutions in the context of the global economy. In Part I, we present a definition of the family and some of the costs and benefits of family relationships. In Part II, we explore the reasons behind the current underinvestment in families including the demands of the marketplace and government policies that promote market labor and undervalue children. In Part III, we discuss the new family and the fact that people are getting married less, later in life, having fewer children and spending less time raising children. Finally, in Part IV we survey the ways in which several industrialized countries have addressed the problems of families in the global economy both through the market, and government policies.

family, men, women, children, marriage, fertility, reproduction, chid-rearing, hours worked, global, economy, global economy

Abstract:
In this article we examine the problem of declining employer references in the American economy. We argue that the problem is not that employers inordinately fear potential slander and libel liability for giving references, but that they have no assurance of benefits from reciprocal references in exchange for taking any risk or suffering any cost in giving references. We provide a comparative legal analysis and argue that the United States might benefit from adopting an employer letter of recommendation system similar to that currently used in Germany.

references, libel, slander

Abstract:
In this essay, Professor Dau-Schmidt undertakes a comparative institutional analysis of the four basic means of regulating the employment relationship: individual bargaining, collective bargaining, protective legislation and the common law. He briefly examines the history of America's reliance first on the common law and individual bargaining and later on collective bargaining and protective legislation to meet the demands of workers. Professor Dau-Schmidt also discusses the probable future implementation of these institutions in governing the employment relationship in the Twenty-First Century.

Labor law, employment law, individual bargaining, collective bargaining, regulation

Abstract:
This book chapter discusses two classic Supreme Court cases from the 1950's that explore the contours of the obligation to bargain in good faith: NLRB v. Truitt Manufacturing Co. and NLRB v. Insurance Agents' 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' case, the Supreme Court held that union slow-down tactics were consistent with the union's 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' 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.

Unions, History, Collective Bargaining, Good Faith

Abstract:
This Article evaluates two different economic models of criminal law as applied to the enforcement of antitrust laws. The author argues that economic models which propose antitrust punishment be limited to fines and then to fines that are levied against only business entities, are deficient because they account for only the general deterrent effect of punishment and include a value of criminal benefit for the offender, a value not shared by society. He presents, as an alternative, a model that accounts for benefits afforded by incarceration such as the signaling of what is a criminal offense, changes in the criminal's taste for crime, and venting society's desire for retribution. He concludes that incarceration of individual antitrust offenders serves a valuable societal function.

Antitrust, Sentencing, Crime, Law and Economics

Abstract:
Although there is a wide diversity of labor laws among the industrialized democracies of the world, two common purposes behind these laws are the fostering of employees' right to collectively bargain and the promotion of industrial peace. Certainly these are shared purposes behind the laws of the United States and the Republic of Korea. The question of whether to determine employee representation through exclusive representation or plural unionism is a one that touches on both of these fundamental issues in the development of a system of industrial relations. Exclusive representation can improve a union's bargaining power relative to the employer, helping to ensure that the employees can make meaningful contributions to collective bargaining. Exclusive representation can also simplify the problem of collective bargaining, promoting cooperation between the parties by focusing the employer's attention on one set of employee representatives and discouraging strategic behavior by subsets of employees at the expense of overall cooperation. However, exclusive representation can also pose a barrier to employee organization, a problem that has plagued the American industrial relations system. Furthermore, lumping employees with disparate interests together in one unit with one representative can complicate the union politics of collective negotiations and leave minority interests unrepresented. Indeed, in the United States we have found it important and necessary that the grant of exclusive representation to a union be accompanied by a duty to fairly represent all employees in the designated bargaining unit.

In this essay we will examine the policy choice between a system of industrial relations based on exclusive representation and one based on plural unionism. We undertake this examination by presenting the American law and experience with respect to exclusive representation, and discussing the relevance of that experience to the question of plural unionism. In the first section we discuss the American law with respect to exclusive representation, including a brief overview of our election procedure, the doctrine of the duty of fair representation and recent developments with respect to the recognition of minority unions and members only contracts in the United States. In the second section we discuss the American experience with exclusive representation and multiple units in one employer and the decline of the American labor movement. In the final section we discuss the implications of the American experience for the issue of plural unions in the Republic of Korea. The United States is an interesting case study on the question of exclusive representation or plural unionism because perhaps no other country has as formal a system for determining questions of representation or clings so closely to the exclusive representation model. On the other hand the United States also has ample experience with multiple unions within one employer. We conclude that there is wisdom in Korea's move to plural unionism with one channel bargaining, although we emphasize the importance of a duty of fair representation, the possible need for workers to organize in multiple channels when they do not share common interests and the possibility of letting the parties determine how they conduct collective negotiations.

labor law, United States, Korea, exclusive representation, plural unionism, plural unions

Abstract:
This article presents data on graduates of a law school located at a large, midwestern public university. It presents responses to survey questions relating to various personal and job characteristics, including income from the practice of law and career satisfaction. It compares the responses across various demographic groups, including type of practice, gender, race, and ethnicity. We find that lawyers in large private law firms make more money than lawyers in small private practices, who, in turn, make more than those in government or public interest positions. Career satisfaction is greatest for lawyers in corporate counsel, public interest, and government jobs, followed by larger firms, and then smaller private firms. We find that women earn substantially lower incomes than men, but most of the difference can be eliminated by accounting for time taken away from paid work for childcare, among other factors. Both blacks and Hispanics make significantly less money than majority lawyers 15 years after graduation. Regarding overall satisfaction with careers, women appear to be sensitive to the number of hours of work, probably because of child-care responsibilities. Our analysis suggests that blacks and Hispanics enjoy career satisfaction in the practice of law that is not significantly lower than that of majority lawyers.

Legal Profession, Discrimination, Gender, Sex, Race, Income, Job Satisfaction

Abstract:
The Supreme Court's recent decision in Communications Workers of America v. Beck interpreted section 8(a)(3) of the National Labor Relations Act (NLRA) to prohibit the observance of agency shop agreements. By interpreting the statute in this way, the Court avoided the question of whether union security agreements under the NLRA are subject to constitutional scrutiny. The Court's determination that section 8(a)(3) does not allow agency shop agreements was an important decision affecting the enforceability of union security agreements in the vast majority of private sector bargaining agreements.

In this Article, Professor Dau-Schmidt criticizes the Court's interpretation of section 8(a)(3) in Beck. The Article examines the Court's NLRA precedents and the legislative history of the NLRA's section 8(a)(3). Several methods of statutory construction and constitutional adjudication are analyzed. Finally, Professor Dau-Schmidt argues that union security agreements under the NLRA are not subject to constitutional scrutiny because there is no state action in their negotiation or observance.

Labor Law, Union Security, Unions, Collective Bargaining

Abstract:
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' 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.

Contingent work, Richard Belous, Definition of "employee", employment relationship

Abstract:
For many outside the legal profession, the end of a legal case is the reading of the verdict. However, that is only the beginning for those being judged. One of the most significant and delicate tasks within the sphere of the legal system is that of sentencing those convicted. Because of the extreme personal impact that a judge's sentencing has on each individual, the most effective approach to creating guidelines for sentencing has been a hot topic of debate. Upon the birth of the Sentencing Reform Act of 1984, the system changed from one of standards to one of often impractical rules. Despite the noble intention of this reform to prevent self-interested judges from acting upon their own interests, there is still reason to question how effective this new system is in preventing self-interested sentencing from occurring. This article reviews both the Sentencing Reform Act of 1984 as well as the previous standard-based method through an agency cost model while looking forward to the next sentencing reform.

Sentencing Reform Act of 1984, Agency Cost Analysis, rules versus standards

Abstract:
Economics has been viewed traditionally as a discipline removed from other, "softer", fields of social analysis. Professor R. Malloy has fought to remove these barriers and encourage interdisciplinary dialogue. In a field previously dominated by normative values of majority power holders, a multidisciplinary approach allows for a more extensive examination of social trends and the question of innate human "rights". By relaxing the assumptions of traditional neoclassical economic analysis, one can gain a theoretical perspective that includes insights from multiple disciplines. This article reinforces Malloy's conceptualization of new social analysis, hoping to further this new interdisciplinary cooperation.

Malloy, economics, economic analysis, sociology, psychology, Pareto, Kaldor-Hicks

Abstract:
A single action of an individual is highly influenced not only by personal interests and desires, but also by a complex network of social influences. Because of this vast outside social pressure within society, the legal ramifications of individual action must also be studied in a multidimensional way to incorporate these social values. One effective means to do so is to begin linking the socioeconomic paradigm into traditional legal study through the use of teaching simulations. This article brings forth a new method involving hand-on simulations and outlines its necessity within the legal sphere. Through these simulations, students are able to have an active and experiential concept of the way in which personal and social values influence reasonable action.

Socioeconomic, Simulation, Social Context Jurisprudence, Teaching

Abstract:
In his 1998 Fairchild Lecture, Professor Marc Galanter proposed the idea that senior attorneys should be encouraged to undertake "a second 'public service' career" as a way of transitioning to retirement. The logic for encouraging such "Second Acts" in lawyers' careers is compelling. As Professor Galanter has demonstrated, in the coming years, there will be record numbers of attorneys navigating the transition to retirement as the "Baby Boomers" reach their golden years. This substantial body of highly skilled lawyers could have a significant impact on fulfilling unmet needs for legal representation. If even 5% of the practicing attorneys over sixty-five participated in such a program, this would double the number of attorneys working primarily on public interest work by as soon as 2011! Such work could provide personal renewal and fulfillment as a capstone in the careers of this idealistic generation. Moreover, if such a movement were embraced and systematized by the legal profession, it could provide substantial benefits to firms and the profession as a whole. While facilitating the retirement of an unprecedented number of senior attorneys, "Second Acts" programs would allow those senior attorneys to retain contact with their clients while those clients transfer to other attorneys in the firm and allow senior attorneys to focus on training and mentoring junior associates through pro bono work. This work would also help meet the pro bono obligations of the firm and the profession as a whole.

To further explore and facilitate the development of such "Second Acts" programs, the Pro Bono Institute has undertaken a survey of law firms on the magnitude of their current concerns in facilitating the retirement of senior attorneys, benefits to attorneys and firms in establishing such programs, and possible problems to be addressed in the development of such programs. In this essay, we present the results of the Institute's survey, along with the other existing arguments and data supporting the establishment of "Second Acts" programs and suggest how they might most usefully be constructed. In the first section of this essay, we present the existing data and literature concerning the establishment of "Second Acts" programs. This discussion not only summarizes the existing literature, but also serves as a basis for the discussion of our survey. In the second section we present and discuss the results of our survey. These results suggest that there is indeed a need for and interest in "Second Acts" programs that will facilitate the transition of attorneys into retirement with personally and socially meaningful work, and that firms believe that such programs will meet some of the firms' practical business needs. Finally we offer our conclusions regarding the desirability and optimal form of "Second Acts" programs based on our findings.

Pro Bono, Legal Profession, Retirement

Abstract:
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.

ALI, Restatement of Employment Law, Labor Law Group

Abstract:
This article discusses the irony of the longstanding suspicion of economic approaches within the law and society movement, despite the fact that some of the movement's greatest scholars have not so surreptitiously used economic theory in their work. Although economists are generally treated as the "black sheep" of the law and society family, economic principles have been employed in the work of several well respected law and society scholars, including Willard Hurst and Marc Galanter. Galanter's seminal law and society article Why the 'Haves' Come Out Ahead is discussed at length. The author concludes that the dirty little secret of the law and society movement is that a very good argument can be made that the progressive wing of the law and economics movement owes its paternity to law and society scholars such as Hurst and Galanter.

law and economics, law and society, interdisciplinary, multidisciplinary, haves, have-nots