New Article: Rachel Nadas & Jayesh Rathod, Damaged Bodies, Damaged Lives: Immigrant Worker Injuries as Dignity Takings, 92 Chi.-Kent L. Rev. 1155 (2017). Abstract below:
Government data consistently affirm that foreign-born workers in the U.S. experience high rates of on-the-job illness and injury. This article explores whether—and under what circumstances—these occupational harms suffered by immigrant workers constitute a dignity taking. The article argues that some injuries suffered by foreign-born workers are indirect takings by the state due to the government’s lackluster oversight and limited penalties for violations of occupational safety and health laws. Using a framework of the body as property, the article then explores when work-related injury constitutes an infringement upon a property right. The article contends that the government’s weak enforcement apparatus, coupled with state-sanctioned hostility towards immigrants, creates an environment where immigrant workers are deemed to be sub-persons, and where employer impunity abounds. Drawing upon data gleaned from a research study of immigrant day laborers in northern Virginia, the article describes a range of practices by employers in cases of workplace accidents, noting the circumstances that are indicative of dehumanization, and thus, dignity takings.
New Article: Maxine Eichner, The Privatized American Family, 93 Notre Dame L. Rev. 213 (2017). Abstract below:
Part I of this Article describes the privatized-family model that dominates U.S. law and policy today, as well as the negative effects this model is having in the contemporary United States. Part II turns to U.S. history, investigating the national conversation regarding the appropriate relationship among the government-market-family triad. As historian Robert Self put it, competing narratives of the place of families are “deeply etched in competing narratives of national identity,” and are fundamental to our social contract. Part II first considers the narratives that supported the rise of the twentieth-century welfare state, which regulated the market to support families. It then contrasts these with the justifications for dismantling welfare-state protections at the end of the century, which introduced the privatized-family model. I argue that the vision underlying this newer regulatory model does not adequately support the important functions that families serve.
Finally, Part III offers my “buffered-spheres” model as a better alternative for regulating the market-family relationship. This model would delink provision of the conditions families need to thrive from their individual market power. Under this model, the state would no longer stand aside as a neutral party when it comes to whether families can obtain the necessary conditions for sound families, but would actively facilitate these conditions. In today’s economy, this means that regulation would not only encourage adults to work, as it does today, but would also ensure parents publicly paid parental leave, ensure children optimal early childhood education while parents work, and support all adults being able to go home at the end of the workday.
From an email: Georgetown Law’s Journal on Poverty Law and Policy is hosting a symposium on the Future of Low-Wage Work on Thursday. It is open to the public and we hope that some of you can make it to the event! The schedule is below. We have an RSVP link that you can access here (http://bit.ly/GJPLPsymp2018), though we welcome attendees even if they do not RSVP. If you have any questions, please feel free to contact email@example.com.
The Changing Nature of Low-Wage Work: How Automation & the Gig Economy Impact the Future of Work; January 25, 2018 Georgetown University Law Center
10:30 Address: Wendi Lazar, Partner, Outten & Golden LLP
11:00 Panel: Automation and Low Wage Work
- Llezlie Green Coleman, Professor, American University Washington College of Law
- Larry Mishel, Distinguished Fellow, Economic Policy Institute
- Christine Owens, Executive Director, National Employment Law Project
- Katie Wells, incoming Postdoctoral Fellow at the Kalmanovitz Initiative for Labor and the Working Poor, Georgetown University
- Moderator: Indi Dutta-Gupta, Co-Executive Director, Georgetown Center on Poverty and Inequality
1:30 Address: Cynthia Estlund, Catherine A. Rein Professor of Law, New York University School of Law
2:15 Panel: The Impact of the Gig Economy
- Maya Sheppard, Managing Attorney, Barriers to Employment Project, Neighborhood Legal Services Program
- Joe Kennedy, Senior Fellow, Information Technology & Innovation Foundation
- Tom Spiggle, Owner, The Spiggle Law Firm
- Karla Walter, Director, Employment Project, Center for American Progress
- Moderator: Raj Nayak, Director of Research, National Employment Law Project
3:45 Closing: Peter Edelman, Carmack Waterhouse Professor of Law and Public Policy, Georgetown University Law Center
4:30 Happy Hour
New Article: Ryan Calo & Alex Rosenblat, The Taking Economy: Uber, Information, and Power, 117 Colum. L. Rev. 1623 (2017). Abstract below:
Sharing economy firms such as Uber and Airbnb facilitate trusted transactions between strangers on digital platforms. This creates economic and other value and raises a set of concerns around racial bias, safety, and fairness to competitors and workers that legal scholarship has begun to address. Missing from the literature, however, is a fundamental critique of the sharing economy grounded in asymmetries of information and power. This Article, coauthored by a law professor and a technology ethnographer who studies the ride-hailing community, furnishes such a critique and indicates a path toward a meaningful response.
Commercial firms have long used what they know about consumers to shape their behavior and maximize profits. By virtue of sitting between consumers and providers of services, however, sharing economy firms have a unique capacity to monitor and nudge all participants — including people whose livelihood may depend on the platform. Much activity is hidden away from view, but preliminary evidence suggests that sharing economy firms may already be leveraging their access to information about users and their control over the user experience to mislead, coerce, or otherwise disadvantage sharing economy participants.
This Article argues that consumer protection law, with its longtime emphasis of asymmetries of information and power, is relatively well positioned to address this under-examined aspect of the sharing economy. But the regulatory response to date seems outdated and superficial. To be effective, legal interventions must (1) reflect a deeper understanding of the acts and practices of digital platforms and (2) interrupt the incentives of sharing economy firms to abuse their position.
Op-ed: Jim Hightower, Inequality is Feeding America, CommonDreams, Jan. 3, 2018.
New Article: James Gray Pope, The Right to Strike, Boston Review, 2017. Abstract below:
This essay led off a Boston Review Forum featuring responses from Cynthia Estlund, Isabelle Ferreras, Janice Fine, Bill Fletcher Jr., Alicia Garza, Alex Gourevitch, Thomas A. Kochan, Sophia Z. Lee, Stephen Lerner, Staughton Lynd, Bob Master, and Andrea Dehlendorf with Dan Schlademan. Posted here is the original essay, with footnotes added, followed by the authors’ reply to the responses.
The essay submits that (1) American labor law blocks workers from exercising the rights to strike, to organize, and to act in solidarity; (2) largely as a result, Taft-Hartley “labor organizations” have declined steadily for more than half a century, through Republican and Democratic administrations alike; (3) before it is too late, unions and other workers’ organizations should prioritize the fundamental rights to strike, organize, and act in solidarity in all phases of movement activity; (4) instead of attempting to tweak the Taft-Hartley model, proponents of workers’ rights should seek long-term, fundamental change including the replacement of exclusive representation with a system that fosters worker freedom and permits broad solidarity. The reply discusses a number of important points raised by the respondents.
New Article: Jeffery Selbin, Justin McCrary & Joshua Epstein, Unmarked? Criminal Record Clearing and Employment Outcomes, 108 J. Criminal L. & Criminology (2017). Abstract below:
An estimated one in three American adults has a criminal record. While some records are for serious offenses, most are for arrests or relatively low-level misdemeanors. In an era of heightened security concerns, easily available data and increased criminal background checks, these records act as a substantial barrier to gainful employment and other opportunities. Harvard sociologist Devah Pager describes people with criminal records as “marked” with a negative job credential.
In response to this problem, lawyers have launched unmarking programs to help people take advantage of legal record clearing remedies. We study a random sample of participants in one such program to analyze the impact of the record clearing intervention on employment outcomes. Using methods to control for selection bias and the effects of changes in the economy in our data, we find evidence that: (1) the record clearing intervention boosts participants’ employment rates and average real earnings, and (2) people seek record clearing remedies after a period of suppressed earnings.
More research needs to be done to understand the durability of the positive impact and its effects in different local settings and labor markets, but these findings suggest that the record clearing intervention makes a meaningful difference in employment outcomes for people with criminal records. The findings also suggest the importance of early intervention to increase opportunities for people with criminal records. Such interventions might include more legal services, but they might also include record clearing by operation of law or another mechanism that does not put the onus of unmarking on the person with a criminal record.
New Article: Matthew Dimick, Better than Basic Income? Liberty, Equality, and the Regulation of Working Time, 50 Indiana L. Rev. 473 (2017). Abstract below:
Basic income has attracted the attention of academics, policy makers, and politicians around the globe. Basic income—a no-strings-attached cash transfer made to all citizens of a country, rich or poor—has been lauded as a plan to eliminate poverty, reduce income inequality, redress imbalances in the labor market, remedy the impending problem of mass technology-induced unemployment—the “robot apocalypse”—and make possible meaningful lives for those otherwise dependent on menial work in the labor market. It has also been proposed as an efficient, nonpaternalistic, and stigma-free alternative to existing welfare state policies. This Article compares basic income to an alternative policy proposal: the regulation of maximum working hours in the labor market. This Article contends that on nearly all of these virtues, working-time regulation does better than, or at least as well as, basic income. In particular, working-time regulation makes “free time” available to a broader array of individuals, also addresses technological unemployment, and is much more conducive to pro-environmental policies. Most importantly, it is more deeply egalitarian than basic income, not only addressing income inequality but social inequality, as well. Although basic income and working-time regulation are not necessarily incompatible—indeed some have advocated the adoption of both policies—there may be other factors that effectively render them policy substitutes. Specifically, not only is working-time regulation more complementary to existing welfare-state policy than is basic income, but—already in existence in the U.S. and most other developed countries—it also does not face the challenges of political and economic feasibility that confront basic income. Thus the choice and comparison is a compelling one, of which legal, policy, and tax scholars should take note.
New Article: Stephen Lee, The Food We Eat and the People Who Feed Us, Wash. U. L. Rev. forthcoming 2017. Abstract below:
Food justice scholars and advocates have made a simple but important point: for all the attention we pay to the food we eat, we pay far too little attention to the people who feed us. But can law play a role in directing consumer attention to labor-related issues? Traditional food law paradigms provide at best incidental benefits to food workers because these types of laws typically rely on transparency and disclosure schemes that serve narrow consumer-centric interests. An increasing number of laws attempt to disseminate information about the working conditions of the people who pick, process, and produce our food so that consumers can also consider the ethical and moral consequences of their food choices. In assessing this attempt to rebrand labor enforcement in consumer protection terms, this Article does two things. First, this Article identifies the conditions under which such schemes are most likely to succeed. Regulators should target food markets characterized by relative consumer wealth, norm consensus regarding which outcomes are desirable, and an established intermediation infrastructure to give disclosure laws the best chances for improving labor conditions along the food chain. Even where these conditions exist, a second point this Article makes is that disclosure laws should supplement, not supplant, traditional labor enforcement strategies that rely on worker-initiated complaints. This is because certain values, like autonomy, equity, and community standing are best vindicated by the workers themselves instead of by others (like consumers) on their behalf. Crowding out workers from the enforcement process creates the risk of exacerbating the structural forms of inequality that define work across the food system.