Vol. 5, No. 3: Aug 31, 2010

Associate Dean for Faculty and Research Professor of Law and Judge Frederick B. Lacey Scholar, Rutgers Law School - Newark

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Table of Contents

James Gray Pope, Rutgers Law School - Newark
Peter Kellman, Southern Maine Labor Council
Ed Bruno, National Nurses Organizing Committee

Alan Hyde, Rutgers University - School of Law

Stuart P. Green, Rutgers Law School-Newark

Carlos A. Ball, Rutgers University School of Law (Newark)

Brandon L. Paradise, Rutgers Law School - Newark

Eric B. Sposito, Rutgers School of Law-Newark


"Free Labor Today" 
Rutgers School of Law-Newark Research Paper No. 067

JAMES GRAY POPE, Rutgers Law School - Newark
Southern Maine Labor Council
National Nurses Organizing Committee

During the first half of the 20th Century, the period when all of the United States' major workers' rights statutes were enacted, the American labor movement claimed the rights to organize and strike under the Thirteenth Amendment to the U.S Constitution. Beginning in 1909, it was the official policy of the American Federation of Labor that a worker confronted with an unconstitutional injunction had an "imperative duty" to "refuse obedience and to take whatever consequences may ensue." At a time when union institutions were as weak as they are today, every attack on workers' rights was met with an impassioned defense of the constitutional rights to organize and strike. At the same time, the movement took a long-term approach to legislative reform, demanding the full freedom to associate in organizing unions and staging strikes. In recent decades, by contrast, the movement has often shied away from defending the right to strike at moments of conflict (the 2005 New York subway strike being a prominent example), and has shaped its legislative proposals to fit what it sees as the short-run possibilities (for example, the Employee Free Choice Act, which makes no attempt to protect the right to strike). This article suggests that elements of the old labor movement’s constitutional strategy might be useful in the struggle for workers' rights today.

"Intellectual Property Justifications for Restricting Employee Mobility: A Critical Appraisal in Light of the Economic Evidence" 
Rutgers School of Law-Newark Research Paper No. 070

ALAN HYDE, Rutgers University - School of Law

Legal impediments to labor market mobility, such as enforcement of restrictive covenants and trade secrets law, have only recently come under careful economic scrutiny. So far, there are no provable social gains in enforcing noncompete covenants. Studies have made empirical comparisons between enforcing and nonenforcing states, some horizontal comparisons, some comparing a jurisdiction before and after legal change. These invariably show the social advantages of not enforcing noncompetes. States that do not enforce noncompetes have more startups, venture capital, growth, investment in human capital, and patenting. The last finding is crucial since courts often accept the unsupported argument that enforcing noncompetes gives employers incentives to train employees and make other investments in human capital. Enforcing noncompetes also creates social waste of employee talents, as most affected employees are unable to work in their areas of expertise. Economic models of contracts to impede employee mobility are highly responsive to their assumptions, but the dominant approach shows that employers and employees can negotiate efficient allocation of intellectual property on the employee’s departure, even if the employer has no ex ante intellectual property rights. The old employer simply outbids rivals. The time has come for law to join those states refusing to enforce restrictive covenants, and to restrict employer claims that departing employees will disclose trade secrets.

"Thieving and Receiving: Overcriminalizing the Possession of Stolen Property" 
New Criminal Law Review, Forthcoming
Rutgers School of Law-Newark Research Paper No. 071

STUART P. GREEN, Rutgers Law School-Newark

Historically, Anglo-American law has treated the offense of receiving stolen property in a variety of ways: It has regarded it as no crime at all, subjected it to accessory-after-the-fact liability, and treated it as a free-standing offense, subject, depending on the jurisdiction, to less punishment than theft, the same punishment as theft, or greater punishment than theft. In order to develop an analytical framework for determining which of these various approaches makes the most sense, we need to ask exactly what receiving statutes are meant to censure and deter. From a backward-looking perspective, receivers can be said to perpetuate the wrongful deprivation of the victim owner’s property rights, effected in the first instance by the thief. From a forward-looking perspective, the act of receiving can, at least in some cases, be said to encourage the commission of future thefts by helping to create a ready market for stolen goods. The problem is that the offense in its current statutory formulation reflects only the backward-looking perspective, requiring nothing more than that the offender possess or receive stolen property (knowing that it is stolen), and saying nothing about the future effects of his act. And because perpetuating an owner’s loss of property is a lesser wrong than causing him to lose his property to begin with (or so it will be argued), the receiver deserves less blame and punishment than the thief. Yet many modern statutes subject receiving to at least as much punishment as thieving. In order to avoid such disproportionality, various reforms in the law of receiving are recommended.

"The Proper Role of Morality in State Policies on Sexual Orientation" 
New York University Review of Law & Social Change, Vol. 34, 2010
Rutgers School of Law-Newark Research Paper No. 072

CARLOS A. BALL, Rutgers University School of Law (Newark)

In this Essay, which was previously titled "Gay is Good: Morality and the LGBT Rights Movement," I explore the question of when may the State properly take into account notions of morality when setting policy in matters related to sexual orientation. My contention is that the State may do so when (1) it is expanding rather than restricting rights and benefits; (2) the moral considerations have empirical support; and (3) those considerations are consistent with our nation's constitutional values.

"Militant Covering" 
Washington University Journal of Law and Policy, Vol. 33, 2010
Rutgers School of Law-Newark Research Paper No. 074

BRANDON L. PARADISE, Rutgers Law School - Newark

In recent years legal scholars have debated whether the law should recognize rights to cultural differences associated with race. Scholars in favor of the law providing such rights have generally sought to ground "rights-to-difference" on the theory that because racial identity is performative protecting against race-based discrimination includes proscribing discrimination against performances of racial identity. Scholars opposed to the law acknowledging rights-to-difference have argued that race (an ascribed identity) is distinguished from cultural practices. As a result, cultural discrimination cannot constitute racial discrimination. Moreover, legislating rights-to-difference risks reifying stereotypes associated with membership in oppressed groups, so that, for example, providing a right to speak Ebonics perpetuates stereotypes that black people do not speak standard English.

Militant Covering argues that while scholars have come to different conclusions on whether rights-to-difference ought to be legislated, the major contributors to the debate have all emphasized the costs (variously, as psychological and dignitary harms or in terms of racial subordination) of difference. Rather than emphasizing the harm of difference, and whether the law ought to protect against such harm, Militant Covering seeks to show how the rights-to-difference debate has prioritized dignitary or psychological interests over the pursuit of power.

In showing how rights-to-difference overlooks the accumulation of power, Militant Covering traces contemporary understandings of the significance of black cultural distinctives to the black power movement of the late 1960s and early 1970s. It argues that while black power understood cultural distinctives as essential to a politics directed toward the economic and political independence of black people, contemporary rights-to-difference understands the right to black cultural distinctives as turning on whether such rights are necessary to protect against racial discrimination occurring within integrated environments. Moreover, whereas black power asserted black cultural distinctives as necessary to a politics of independence, rights-to-difference requests a right to black cultural distinctives in integrated environments.

Militant Covering broadens the debate between those who wish to protect against the harms incurred by discrimination against cultural practices and those who worry that protecting such practices might reify stereotypes foisted upon members of oppressed minority groups. Using President Barack Obama’s presidential campaign as a paradigmatic example of strategic emphasis and de-emphasis of blackness, Militant Covering shows how rights-to-difference discourse’s overemphasis on the harms of covering fails to acknowledge the empowering potential of strategic covering performances.

While Militant Covering does not argue that we have become a "post-racial society," its emphasis on a strategic approach to cultural distinctives is appropriate in an era in which race is clearly no longer a categorical bar to admission to the inner circles of the nation’s power centers. Although our society has not become post-racial, in arguing for such a strategy, Militant Covering asserts that the contemporary era is one in which blacks can benefit by strategically resisting the role of the ultimate "other."

This is a description of the paper, not the actual abstract.

"14 Penn Plaza v. Pyett: Into the Abyss between Judicial Process and Collectively Bargained Agreements to Arbitrate Individual Statutory Claims" 
Rutgers Law Record, Forthcoming
Rutgers School of Law-Newark Research Paper No. 073

ERIC B. SPOSITO, Rutgers School of Law-Newark

A law review type article analyzing the practical implications affecting enforceability of mandatory pre dispute agreements to arbitrate statutory claims contained in collective bargaining agreements.

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