Primacy of Reality

2019 ◽  
pp. 63-92
Author(s):  
Gamonal C. Sergio ◽  
César F. Rosado Marzán
Keyword(s):  
Common Law ◽  
Labor Law ◽  
The United States ◽  
Employment Relationship ◽  
Independent Contractors ◽  
International Labor ◽  
Legal Texts ◽  
The Common ◽  
Employment Tests ◽  
The U.S

Chapter 3 describes the principle of primacy of reality in Latin America, namely, in Argentina, Brazil, Chile, and Uruguay. The principle is also contained in the International Labor Organization’s Recommendation 198. The principle posits that facts must be given preference over what parties, particularly employers, state in legal texts, documents, and agreements. It is particularly important when determining threshold questions in labor law, such as employee and employer status. While employers might deny an employment relationship given a formal agreement to hire workers as independent contractors, the facts might show otherwise. However, the chapter also argues that primacy of reality depends on the principle of protection and in dubio pro operario to resolve questions when the facts are not dispositive given vague or missing rules. The chapter then searches primacy of reality in the United States and finds it in various employment tests, such as the common law control test. It is also finds it in employer tests of joint employer status. However, many of those tests remain vague, requiring supplementation with the U.S. versions of in dubio pro operario, i.e., liberal construction of the statutes that derogate the common law, and with legislative purpose. Primacy of reality makes it even more important for legal operators to be cognizant of labor law principles and, principally, the protective principle.

The Return of Labor Principles: Conflict or Harmony?

2019 ◽  
pp. 145-156
Author(s):  
Gamonal C. Sergio ◽  
César F. Rosado Marzán
Keyword(s):  
Property Rights ◽  
Free Speech ◽  
Labor Law ◽  
The United States ◽  
Constitutional Rights ◽  
International Labor Standards ◽  
International Labor ◽  
Liberal Societies ◽  
Free Speech Rights ◽  
The U.S

Chapter 6 acknowledges that labor law principles are not the end-all for all labor law cases and controversies. Labor law may conflict with other laws and their principles, complicating adjudication. The chapter discusses two major conflicts between labor law and other law, particularly in the United States, but likely also present elsewhere: constitutional rights concerning property and free speech. The U.S. Supreme Court has held in ways that essentially sustain that labor law conflicts with property rights and free speech and, in addition, must cede space to property rights and free speech. The U.S. doctrine of permanent strike replacements, which violates international labor standards, is based on protecting employer property rights. The recent Janus v. AFSCME decision outlawing compulsory union service fees in the public sector is based on protecting individual free speech. But such conflicts need not be. By understanding labor law principles and how labor norms operate, we should recognize that labor law protects workers’ property rights and their capacity to consume, which better guarantees the health of capitalism and societal property rights generally. Moreover, labor law provides a voice to workers, who would be otherwise subordinated. As long as labor norms stem from democratic processes, labor norms should respect constitutional free speech rights. Labor law can thus live side by side with important constitutional principles. Given the importance of property rights and free speech in contemporary, liberal societies, the U.S. case can help warn other jurisdictions from heading down the same erroneous jurisprudential path.

Is It Safe to Talk,Yet? The Evolution of Electronic Privacy Law

2008 ◽  
pp. 23-35 ◽  
Author(s):  
John Thomas
Keyword(s):  
National Security ◽  
Common Law ◽  
The United States ◽  
Patriot Act ◽  
The Public ◽  
The Right To Privacy ◽  
Privacy Law ◽  
The Common ◽  
The Right ◽  
The U.S

This chapter traces the development in the United States of legal protections of the right to privacy. It begins with the common law “right to be let alone” in the early 1900s and proceeds through the enactment of the U.S. Patriot Act in 2001 and the National Security Administration’s warrantless wire tapping program revealed to the public in 2005. It concludes with a discussion of emerging electronic threats to the security of privacy of the public and concomitant challenges to lawmakers and law enforcers.

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

Law and Lawyers in the United States: The Common Law under Stress

1967 ◽  
Vol 80 (4) ◽  
pp. 916
Author(s):  
Lord Denning ◽  
Erwin N. Griswold
Keyword(s):  
United States ◽  
Common Law ◽  
The United States ◽  
The Common

scholarly journals Redemptive Stories and Those Who Tell Them are Preferred in the U.S.

2020 ◽  
Author(s):  
Kate C. McLean ◽  
Brianna C Delker ◽  
William Lewis Dunlop ◽  
Rowan Salton ◽  
Moin Syed
Keyword(s):  
The United States ◽  
Just World ◽  
Theoretical Assumption ◽  
Cultural Expectations ◽  
Potential Risks ◽  
The Common ◽  
Growth Promoting ◽  
Past Experiences ◽  
The U.S ◽  
Reliable Preference

The present studies examined the common, but untested, theoretical assumption that those in the United States prefer negative past experiences, such as trauma, to be redeemed, to be resolved in some positive or growth-promoting fashion. Narratives of six types of traumatic events that were rated by U.S adults (n = 1872) across six samples and two studies. Confirming pre-registered hypotheses, there was a reliable preference for stories that were redeemed compared to stories that ended negatively, as well as for the narrators of redemptive stories, who were judged as likable and to have desirable personality traits. There was no support for the hypothesis that redemptive stories would be viewed as more common than non-redemptive stories, or that the relation between story type and preference would be mediated by Belief in a Just World. Implications include the compulsory nature of storying trauma and potential risks of these cultural expectations.

Rethinking Market Regulation

2021 ◽  
Author(s):  
John N. Drobak
Keyword(s):  
United States ◽  
Economic System ◽  
The United States ◽  
Regulatory Regime ◽  
Market Regulation ◽  
Popular Belief ◽  
The Past ◽  
United States Today ◽  
The Common ◽  
The U.S

Rethinking Market Regulation: Helping Labor by Overcoming Economic Myths tackles the plight of workers who lose their jobs from mergers and outsourcing by examining two economic “principles,” or narratives that have shaped the perception of the economic system in the United States today: (1) the notion that the U.S. economy is competitive, making government market regulation unnecessary, and (2) the claim that corporations exist for the benefit of their shareholders but not for other stakeholders. Contrary to popular belief, this book demonstrates that many markets are not competitive but rather are oligopolistic. This conclusion undercuts the common refrain that government market regulation is unnecessary because competition already provides sufficient constraints on business. Part of the lack of competition has resulted from the large mergers over the past few years, many of which have resulted in massive layoffs. The second narrative has justified the outsourcing of millions of jobs of U.S. workers this century, made possible by globalization. The book argues that this narrative is not an economic principle but rather a normative position. In effect, both narratives are myths, although they are accepted as truisms by many people. The book ties together a concern for the problems of using economic principles as a justification for the lack of government intervention with the harm that has been caused to workers. The book’s recommendations for a new regulatory regime are a prescription for helping labor by limiting job losses from mergers and outsourcing.

The Diffuse and Second Look Models of Judicial Review

2021 ◽  
pp. 23-34
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Latin America ◽  
Judicial Review ◽  
Common Law ◽  
The United States ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Second Look ◽  
The Common

This chapter examines the two models of judicial review that exist in the common law countries: the Diffuse Model and the Second Look Model. The Diffuse Model of judicial review originated in the United States and has spread to India, Canada, Australia, the United Kingdom, most of the countries of Latin America, the Scandinavian countries (except for the Netherlands), and Japan. It is premised on the idea that a country’s written constitution is its supreme law and that courts, when deciding cases or controversies that are properly before them, are thus duty-bound to follow the constitution, which is supreme law, and not a contrary statute whenever those two items conflict. Meanwhile, the essence of the Second Look Model of judicial review is that a Supreme or Constitutional Court ought to have the power of judicial review, subject to some kind of legislative power of override. This, it is said, best harmonizes the advantages of a written constitution and a bill of rights enforced by courts with the imperatives of democratic self-government. The underlying goal is to obtain the advantages of both constitutional government and also of democratic government.

The Contractualisation of Labour Law

2018 ◽  
pp. 33-47
Author(s):  
John Gardner
Keyword(s):  
Common Law ◽  
Employment Relationship ◽  
Labour Law ◽  
Work Relations ◽  
Contractual Relationship ◽  
The World ◽  
British Labour ◽  
The Common ◽  
The Law ◽  
Main Ideas

This chapter explores the idea that labour law rests on ‘a contractual foundation’, and the idea that work relations today are ever more ‘contractualised’. Section 1 lays out some essentials of British labour law and its connections with the common law of contract. Section 2 explains what contractualisation is, not yet focusing attention on the specific context of labour law. The main claims are that contract is not a specifically legal device, and that contractualisation is therefore not a specifically legal process, even when the law is complicit in it. Section 3 shifts attention to the world of work, especially the employment relationship. Here the main ideas are that the employment relationship is not (apart from the law) a contractual relationship, and that all the norms of the employment relationship cannot therefore be captured adequately in a contract, legally binding or otherwise. Section 4 illustrates the latter point by focusing on the rationale and the limits of the employer’s authority over the employee. A contractual rationale yields the wrong limits. It gives its blessing to authoritarian work regimes and lends credence to the miserable view that work is there to pay for the life of the worker without forming part of that life. Throughout the chapter there are intimations of the conclusion drawn in section 5: that contractualisation, in the labour market at least, is a process that lovers of freedom, as well as lovers of self-realisation, should resist—or rather, should have resisted while they still had the chance.

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