Category Archives: Employment and Labour Law
C Haward Soper, ‘What is a Relational Contract? Does Coherence Lurk Amongst Shapeshifting Incidents and Grandiloquent Language?’
ABSTRACT In recent years the term ‘relational’ to describe a class of contract has gained currency in English Courts. Whereas contract class is usually identifiable by type such as landlord and tenant or employment, ‘relational’ contracts are variable agminates of indeterminate incidents, employing confusing, and inappropriate, epi-fiduciary language. I explore the incidents in an unsuccessful […]
Gelinas and Goldford, ‘Re-Thinking Unconscionability: Arbitration Agreements in International Consumer, Employment and “Gig” Economy Contracts’
ABSTRACT In recent years, there has been a proliferation of international consumer, employment and ‘gig’ economy contracts, many of which come with arbitration agreements. Although arbitration agreements are generally given legal effect, courts often refuse to enforce them on the basis of unconscionability if they are particularly disadvantageous to the consumer or worker. After surveying […]
Blair Bullock, ‘Frivolous Floodgate Fears’
ABSTRACT When rejecting plaintiff-friendly liability standards, courts often cite a fear of opening the floodgates of litigation. Namely, courts point to either a desire to protect the docket of federal courts or a burden on the executive branch. But there is little empirical evidence exploring whether the adoption of a stricter standard can, in fact, […]
Daniel Harris, ‘The US Supreme Court Illuminates the Basis of Vicarious Liability’
ABSTRACT In February 2023, the US Supreme Court unanimously held that a bankrupt debtor could not discharge a debt she incurred as a result of a fraud perpetrated by her husband and business partner, even though the debtor was personally innocent of the fraud and her liability was purely vicarious. The decision sheds light on […]
Richard Wright, ‘Dialogues on Causation with Stapleton’
ABSTRACT This paper, forthcoming in an Oxford University Press festschrift in honour of Jane Stapleton, retraces my discussions and debates with her over several decades on the concept of causation and its employment in determinations of legal responsibility. Until recently, she agreed with me on the need (i) to distinguish causation in its core sense […]
Kaiponanea Matsumura, ‘Unifying Status and Contract’
ABSTRACT For over a century, courts and scholars have been operating under the assumption that status and contract are oppositional concepts. Under the traditional view, status is an identity-based, bundled, mandatory, and socially embedded package of regulation significantly affecting one’s rights and obligations. Contract, in contrast, involves voluntary, discrete transactions, the parameters of which are […]
Dagan and Fisk, ‘Independent Contractors and The ABCs of Contract Law’
ABSTRACT Many states, notably California, have adopted the ABC test to determine whether work relationships are employment subject to minimum labor standards. Businesses that classify their workforce as independent contractors argue that the adoption of the ABC test violates the freedom to contract on any terms the parties choose. We argue that conceiving of the […]
Xiyin Tang, ‘Intellectual Property as Labor Policy’
ABSTRACT Intellectual property has long been the law of creation, not creators. Both the dominant utilitarian framework, as well as alternate ones like Lockean and personhood justifications, consider the creator almost exclusively by reference to their creative output. But these innovation-first, output-maximization frameworks have increased concentration among IP firms and deepened inequality in the way […]
‘In the heat of the moment : the statutory concept of dismissal and impulsive resignations’
Can a moment have heat? As time lacks mass, not literally. Yet we understand the metaphor of the distraction of intense heat. Under pressure, angry, anxious, or upset people say things that they do not really mean. Or, more precisely, they do mean them at that moment of intense heat, but we understand that their […]
‘The Enforcement Opportunity: From Mass Arbitration to Mass Organizing’
Over the past thirty years, mandatory arbitration clauses have proliferated in employment contracts, preventing more than sixty million American workers from vindicating their civil rights in a courtroom and forcing them to pursue legal claims in private, confidential forums. Nearly twenty-five million workers are also subject to waivers of class or collective actions, rendering many […]