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Abstract: "The Five Stages of Law Review Submissions," is a humorous look at the law review submissions process from the author's perspective. My colleague Miriam Cherry and I suggest that the process of submitting to law reviews tracks Elisabeth Kubler-Ross's "five stages of grief."
law review submissions, five stages of grief, law reviews, Kubler-Ross
Abstract: Passed in 2002 in the wake of the accounting scandals that resulted in billions of dollars of lost value to shareholders, the Sarbanes-Oxley Act has as its major goal the prevention of corporate corruption. This Article analyzes the impact of Section 806, the portion of the Sarbanes-Oxley Act that provides protections for employees who report securities fraud, and describes the effect that Sarbanes-Oxley has on existing employment law. In addition, this Article contributes to the debate over the general effectiveness of the Sarbanes-Oxley Act, a topic of contention among both academics and press commentators. This Article argues that the Act does not go far enough to protect whistleblowers because employers do not need to specify procedures for acting upon tips that financial fraud is occurring. Also, employers most likely can send whistleblowing claims to arbitration, a forum that weakens the remedies available to employees. Finally, this Article provides a comprehensive survey of state whistleblowing laws and suggests changes to federal and state law to fill the gaps that remain after Sarbanes-Oxley.
Abstract: This piece focuses on the discovery of a T-Rex skeleton, and the contract formed between the private fossil collectors and the Native American rancher who ostensibly owned the land where the fossil was situated. Although the fossil was eventually sold at auction for over eight million dollars, the fossil collectors paid the rancher only $5,000 for its excavation. In addition to the rancher, the Sioux tribe and the Department of Justice also became involved in the case. As described in my work, the law school Socratic method has come under attack in recent years. In response to such criticisms, the lesson that I describe provides a constructive alternative, using problem-based learning and technology. When discussing the contract between the rancher and the fossil hunters, my students effectively analyzed the doctrines of unilateral mistake, unequal bargaining power, unconscionability, and the failure of a condition. Using the T-Rex case is a great way to get law students excited about learning contract defenses.
Contract Defenses, Socratic Method, Law School
Abstract: In the spring of 2009, public outcry erupted over the multi-million dollar bonuses paid to AIG executives even as the company was receiving TARP funds. Various measures were proposed in response, including a 90% retroactive tax on the bonuses, which the media described as a "clawback." Separately, the term "clawback" was also used to refer to remedies potentially available to investors defrauded in the multi-billion dollar Ponzi scheme run by Bernard Madoff. While the media and legal commentators have used the term "clawback" reflexively, the concept has yet to be fully analyzed. In this article, we propose a doctrine of clawbacks that accounts for these seemingly variant usages. In the process, we distinguish between retroactive and prospective clawback provisions, and explore the implications of such provisions for contract law in general. Ultimately, we advocate writing prospective clawback terms into contracts directly, or implying them through default rules where possible, including via potential amendments to the law of securities regulation. We believe that such prospective clawbacks will result in more accountability for executive compensation, reduce inequities among investors in certain frauds, and overall have a salutary effect upon corporate governance.
clawbacks, TARP, executive compensation, corporate governance, Ponzi Scheme, Bernard Madoff, contracts
Abstract: Professor Cherry's essay explores the improvements, change and work still to be done during the last forty years in the area of sex segregation in the labor force, pink and blue collar ghettos, and sexual harassment, and how Title VII has changed the way we view women at work. As the musical comedy "How to Succeed in Business Without Really Trying" was written and first performed contemporaneously with the passage of Title VII, the musical offers an opportunity to examine, from both a law and literature and law and popular culture perspective, how the view of women in the workforce has either progressed or remained stagnant during the past forty years. Although progress has been made toward gender equality, many issues highlighted in the musical are still problems today.
Abstract: This Article, which is part of a symposium on the 40th Anniversary of Title VII appearing in the Hofstra Labor and Employment Law Journal, evaluates the progress of women in the workforce by critically analyzing the musical "How to Succeed in Business Without Really Trying." Written in the early 1960s and made into a 1967 movie, How to Succeed follows the adventures of J. Pierrepont Finch, a window washer who, with the aid of a sarcastic self-help book, schemes his way up the corporate ladder. It also includes the sexual exploits of the exclusively male executive corps among the female secretarial pool. As "How to Succeed" was written and first performed contemporaneously with the passage of Title VII, the musical offers an opportunity to examine, from both a law and literature and law and popular culture perspective, how the view of women in the workforce has either progressed or remained stagnant during the past forty years. Although progress has been made toward gender equality, many issues highlighted in the musical are still problems today: sexual harassment; sex segregation of the workforce and pink collar ghettos; and the glass ceiling. This Article discusses these issues seriatim.
Title VII, Sexual Harassment, Gender Stereotypes, Gender Discrimination
Abstract: This Article focuses on why information markets have covered certain subject areas, sometimes of minor importance, while neglecting other subject areas of greater significance. To put it another way, why do information markets exist to predict the outcome of the papal conclave and the Michael Jackson trial, but no information markets exist to predict government policy conclusions, Supreme Court decisions, or the rulings in Delaware corporate law cases? Arguably, from either a dollar value or a social utility perspective, these areas of law and business would be more important than the outcome of, say, the Jackson trial. Why, then, do these frivolous markets on celebrities like Michael Jackson thrive, while others with more serious aims have yet to be started? To answer this question, we present data from interviews with market founders about their motivations in starting various information markets. In Section III, we insert the data into an analytical framework, exploring where markets exist (primarily politics and entertainment), where they do not, and some of the reasons, including legal considerations and microeconomic decisions, that affect the subjects that information markets cover. In particular, the laws about gambling seem to have had a significant impact on the development of information markets. Despite a trend toward information markets in entertainment and politics, the emergence of an information market in any particular subject area is at least partially the product of a random walk, meaning that it cannot be predicted in advance from past data. Finally, in the last part of our Article, we contemplate whether information markets must endure the vagaries of the random walk or whether they could develop in a more organized and systematic way, either through private institutions or through government action.
Abstract: In her new book, From Widgets to Digits, Professor Katherine V.W. Stone reviews and analyzes the dramatic changes, both technological and demographic, that have transformed work in America during the last thirty years. The book broadly documents the shift from an economy that primarily relies on the production and consumption of goods to one in which learning and the transmittal of knowledge is central to the creation of wealth. Professor Stone describes how in the past, workers may have expected job security and long-term employment, but that recent economic, social, and technological change have led to a more temporary and transitory relationship between employers and workers. Today, workers face the challenges and risks of a "boundaryless career" in which they advance by moving laterally from employer to employer, acquiring skills and knowledge along the way. Meanwhile, Stone argues, the legal system remains mired in the industrial age, with serious consequences for post-employment restraints, anti-discrimination law, fringe benefits, and unionization, among other areas. The challenge, Stone contends, is for the legal system to respond to these changes creatively and effectively, advancing the needs of both employers and workers in a new age of flexible employment. From Widgets to Digits presents an insightful analysis of the modern "psychological contract" between employers and workers, their understandings about their mutual obligations. Perceptively, Stone concludes that the new goal of employment law should be to establish rules that assist workers with training opportunities, guarantee ownership of the intellectual capital that they develop at work, ensure benefits are easily transferred between jobs, and provide safety nets for those that are left behind by technological change. If there is any area where the analysis is incomplete, it is in its treatment of employment discrimination issues, especially those that women workers must face. Stone contends that employment discrimination was part of the old life-cycle model of employment, and states that with the new boundaryless career, "there is reason to believe that discrimination might subside in the future." For the more subtle forms of discrimination that remain, Stone advocates alternative dispute resolution (ADR) as the preferred solution. Perhaps I am more pessimistic about the persistence of gender discrimination in the modern workplace than is Professor Stone. I argue that it is an open question whether the structural changes in the workforce will benefit or harm women workers.
employment law, employment discrimination, ADR
Abstract: This Article applies the emerging field of information markets to the prediction of Supreme Court decisions. Information markets, which aggregate information from a wide array of participants, have proven highly accurate in other contexts such as predicting presidential elections. Yet never before have they been applied to the Supreme Court, and the field of predicting Supreme Court outcomes remains underdeveloped as a result. We believe that creating a Supreme Court information market, which we have named Tiresias after the mythological Greek seer, will produce remarkably accurate predictions, create significant monetary value for participants, provide guidance for lower courts, and advance the development of information markets.
Information markets, Supreme Court, prediction
Abstract: Congress is now considering radical changes to the immigration system. This article looks at the immigration issue as a labor and employment law question, and proposes a possible solution based on this approach. I suggest that forming Limited Liability Companies (LLCs) will benefit low-wage immigrant women workers by transforming them into business owners. By using existing legal structures to their benefit, low-wage women workers can curtail at least a portion of the exploitation that they currently experience. Instead of being hired to perform a job, having the intermediary take a cut, and then pay them some amount out of that, with an LLC structure, the LLC receives the income, and the intermediary receives a set salary. By becoming members of the LLC, workers can also purchase group benefits, such as health insurance, and better control over their working environments.
Immigration, Employment, Labor, LLC, Limited Liability Company
Abstract: The continuing development of prediction markets is important because of their success in foretelling the future in politics, economics, and science. In this article, we identify the expressive elements inherent in prediction markets and explore how legislation such as the Unlawful Internet Gambling Enforcement Act of 2006 might harm such predictive speech. This article is the first to explore First Amendment protections for prediction markets in such depth, and in so doing, we distinguish prediction markets from other regulated areas such as gambling and securities trading. The article's examination of prediction markets also illustrates the limitations of current commercial speech doctrine. We conclude by discussing how the executive, legislative, and judicial branches might resolve the First Amendment challenges of regulating prediction markets, and we propose a new legal test, modeled on existing free speech jurisprudence, which may assist courts in adjudicating any constitutional challenges.
Prediction Markets, Information Markets, First Amendment
Abstract: As more work enters cyberspace, takes place in virtual worlds, and collapses traditional nation-state barriers, we are entering a new era of “virtual work.” In this article, I use “virtual work” as an umbrella term to encompass work in virtual worlds, crowdsourcing, clickworking, even sweeping in, to some degree, the commonplace telecommuting and “mobile executives” that have become ubiquitous over the past decade.Are such new forms of “work” entitled to the minimum payment standards mandated under the FLSA? As the United States enters another economic crisis, and with advances in technology key to continued economic growth and stability, these questions demand serious consideration. The FLSA now faces a variety of new scenarios created by work in cyberspace, and there is a strong case that the economic and equitable purposes of the FLSA are best served by ensuring that the statute is construed broadly so that cyberworkers, clickworkers, and virtual workers receive the federal minimum wage.
The advent of virtual work simultaneously provides immense promise and peril for workers in the new digital economy. New technology allowing collaboration can provide remarkable opportunities for workers and employers alike. Traditional limitations on collaboration - of travel, of meeting, of commuting - can be minimized or reduced. Employers can use virtual spaces to make contacts and recruit talent, without spending money on transportation. Simultaneously, virtual work presents many of the same enduring problems and "races to the bottom" that workers’ rights advocates have struggled with over the years.
This Article begins, in Part One, with a brief background discussion of labor markets in cyberspace. The discussion here contains an in-depth description of the process of pounding the virtual pavement - looking for work in cyberspace - for the purpose of showing the special employment challenges in this context and thus why such work warrants the protection of the FLSA. With that background, Part Two discusses the application of the FLSA to work in virtual worlds, crowdsourcing, and clickworking. Finally, Part Three makes the argument that the purposes of the FLSA are best achieved by ensuring their application to virtual work in the United States. Finally, the conclusion offers some thoughts about the broader applications of this argument and some possibilities for further thought and study, to be developed in future work.
virtual work, crowdsourcing, clickworking, FLSA, Fair Labor Standards Act, minimum wage
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