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.

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 Dual Role of Property Rights in Protecting Broadcast Speech

1998 ◽  
Vol 15 (2) ◽  
pp. 176-208
Author(s):  
Thomas W. Hazlett
Keyword(s):  
Property Rights ◽  
Free Speech ◽  
Private Property ◽  
Shopping Center ◽  
Constitutional Protection ◽  
Constitutional Right ◽  
Free Speech Rights ◽  
The U.S ◽  
Do So

The connection between property rights and free-speech rights has most often surfaced in conflicts between the two. In his classic formulation of the problem, journalist A. J. Liebling mocked the First Amendment's free-press clause by noting that ownership of a printing press was required in order to actually enjoy the constitutional protection. In an important case decided in 1980, Pruneyard Shopping Center v. Robins, the U.S. Supreme Court ruled that a group wishing to circulate political petitions at a shopping center had a constitutional right to do so. There the Court found that such governmentally enforced access to private property did “not amount to an unconstitutional infringement of [the shopping center owners'] property rights under the Taking Clause of the Fifth Amendment….”

Introduction

2019 ◽  
pp. 1-30
Author(s):  
Gamonal C. Sergio ◽  
César F. Rosado Marzán
Keyword(s):  
United States ◽  
Latin American ◽  
Labor Law ◽  
The United States ◽  
Labor Standards ◽  
Labor Protection ◽  
Freedom Of Association ◽  
International Labor Standards ◽  
International Labor ◽  
American Method

This chapter introduces the book’s main goal: to provide a “principled labor law” method to decide hard cases. It describes principled labor law as a Latin American method embedded in the principles of protection, primacy of reality, nonwaiver, and continuity. It argues that principled labor law can be useful even in the least likely case of labor protection, the United States, and explains how, if useful for the United States, it is likely helpful for other jurisdictions. It describes how principled labor law complements perspectives favoring freedom of association—the so-called labor constitution—but opposes views attempting to eviscerate the idea of protecting weaker parties from contemporary law, or those that envision labor law as merely a regulatory endeavor. It also describes how principled labor law shares similarities with the purposive perspective of Guy Davidov, but also contrasts with that perspective, to the extent principled labor law is mostly concerned, and is, in fact, “rulified” in favor of labor protection. It explains that principled labor law seems particularly needed to evade problems of legal endogeneity. The chapter concludes by arguing that the book provides a countercultural narrative for labor law in the United States that is also consonant with international labor standards and, as such, better brings U.S. labor law into the mainstream. Principled labor law may be less countercultural in other countries, but may also help there to renew jurisdictional commitments in favor of labor protection.

Lewd, Vulgar, Plainly-Offensive, and Obscene Speech

2015 ◽  
pp. 84-96
Keyword(s):  
United States ◽  
School District ◽  
First Amendment ◽  
Free Speech ◽  
The United States ◽  
United States Supreme ◽  
Student Speech ◽  
Free Speech Rights ◽  
Speech Clause

This chapter focuses on the Bethel School District No. 403 v. Fraser (1986) case – the United States Supreme Court's second review of students' speech rights under the Free Speech Clause of the First Amendment. It discusses the test created in the case for determining when schools can regulate students' speech. This test, referred to as the Bethel test or the Fraser test authorizes schools to censor students' speech if the speech is vulgar, lewd, plainly offensive or obscene. The chapter also discusses the Supreme Court's decision on the scope of students' free speech rights. The ultimate goal of the chapter is to analyze the Bethel School District No. 403 v. Fraser case in order to determine if it empowers schools to censor off-campus student speech.

“The Dilemma to a Free People”: Justice Robert Jackson, Walter Bagehot, and the Creation of a Conservative Jurisprudence

2002 ◽  
Vol 20 (3) ◽  
pp. 517-539 ◽  
Author(s):  
Patrick Schmidt
Keyword(s):  
Twentieth Century ◽  
Cold War ◽  
Free Speech ◽  
Constitutional Law ◽  
Historical Context ◽  
High Court ◽  
The Cold War ◽  
Free Speech Rights ◽  
Free People ◽  
The U.S

Even today, the U.S. Supreme Court's decision in Terminiello v. City of Chicago (1949) strikes students of constitutional law as a vexing factual situation. The problems the case posed for the High Court are all the more daunting considering its historical context, directly following the nation's confrontation with Nazism and standing on the cusp of the Cold War against Communism. In the broader view, most observers would locate the decision within the ascendance of liberal protection for free speech rights occurring over the second half of the twentieth century. But progressive accounts should not be allowed to mask the contemporary momentousness for the justices hearing the case. Indeed, in this constitutional conflict over the speech of a rabble-rousing priest was lodged a sober question about the polity's health at that time and the preferred response to the nation's need.

A Search for Standards to Monitor Labor Conditions Worldwide - Monitoring International Labor Standards: Techniques and Sources of InformationNational Research Council Washington: National Academies Press, Paperback, 291 pages; ISBN: 0309091349, $43

2006 ◽  
Vol 16 (2) ◽  
pp. 271-287
Author(s):  
S. Prakash Sethi
Keyword(s):  
Western Europe ◽  
The United States ◽  
Social Infrastructure ◽  
International Labor Standards ◽  
Strong Argument ◽  
Labor Conditions ◽  
Goods And Services ◽  
The Past ◽  
International Labor ◽  
The Social

A strong argument can be made that globalization and the unrestricted flow of capital, goods, and services leads to the creation of wealth and prosperity among participating nations. Comparative advantage allows both the industrially advanced nations and developing countries to maximize their gains from trade and investments. The current wave of globalization is not the first, nor is it likely to be the last. There have been waves of globalization in the past: in the United States (1870–1890 and circa 1970), Western Europe (1890–1913 and 1950–1992), and Japan (1913–1938). They all eventually petered out because of their adverse impact on the social infrastructure of the countries involved.

THE POLITICS OF FREE SPEECH

2004 ◽  
Vol 21 (2) ◽  
pp. 23-47
Author(s):  
Scott D. Gerber
Keyword(s):  
Deliberative Democracy ◽  
Free Speech ◽  
Constitutional Law ◽  
Hate Speech ◽  
Freedom Of Speech ◽  
The United States ◽  
Commercial Speech ◽  
Free Theory ◽  
Legal Theorist ◽  
The U.S

Freedom of speech long has been regarded as one of the “preferred freedoms” in the United States: one of the freedoms the U.S. Supreme Court deems “implicit in the concept of ordered liberty.” However, what freedom of speech does—and should—mean is a highly charged question in American constitutional law. I will explore this question by examining how several prominent constitutional theorists have proposed particular approaches to free speech law in order to further their political objectives. I will examine the free speech theories of the nation's leading feminist legal theorist (regarding pornography), critical race theorists (regarding hate speech), libertarian (regarding commercial speech), and legal republican (regarding deliberative democracy). I also will discuss the principal criticisms of each of these theories, whether the courts have been influenced by any of them, and, in conclusion, whether it is possible to advance a nonpolitical (i.e., a purely law-based or value-free) theory of free speech.

scholarly journals Social Guarantees in the Case of Employees’ Dismissal in Russia Comparative Legal Aspects of Russian and Foreign Labor Law

2017 ◽  
Vol 7 ◽  
pp. 159-173
Author(s):  
Alexander Zavgorodniy
Keyword(s):  
Labor Law ◽  
Legal Aspects ◽  
Employment Relationship ◽  
Labor Standards ◽  
Employment Relations ◽  
International Labor Standards ◽  
International Labor ◽  
Foreign Labor ◽  
Legal Perspective ◽  
First Time

The main purpose of the article is to identify the contradictions and problems arising when both international labor standards and Russian labor law are applied and separate guarantees to workers are provided in the case of their dismissal. The object of the research is the employment relationship which arises between the employer and the employee when social guarantees are given to the workers when the employment relations are terminated. This article considers the regulations of Russian and foreign labor law which provide workers with certain guarantees if the employment contract is terminated at the initiative of the employer. For the first time, these guarantees are considered from a comparative legal perspective. Specific recommendations about improvement of the Russian labor law and its enforcement.

scholarly journals Free Speech on Campus by Erwin Chemerinsky and Howard Gillman

2018 ◽  
Vol 2 (3-4) ◽  
pp. 32
Author(s):  
Rosanne Cordell
Keyword(s):  
Free Speech ◽  
The United States ◽  
College Campuses ◽  
Constitutional Rights ◽  
University Campuses ◽  
College And University ◽  
Societal Needs ◽  
The Supreme Court ◽  
The University ◽  
College And University Campuses

Free speech on college and university campuses in the United States is a complex topic with competing and conflicting rights, governing body responsibilities, goals, legal precedents, popular views, and purposes. To untangle all of this requires both attention to fine legal points and a broad view of societal needs. Chemerinsky and Gillman have the expertise and experience to bring both these characteristics to bear on discussions of this topic, but they do much more: they outline specific policies that can and should be followed by universities and colleges in seeking to provide the best of higher education. Chemerinsky (The Conservative Assault on the Constitution, The Case Against the Supreme Court, Closing the Courthouse Door: How Your Constitutional Rights Became Unenforceable) and Gillman (American Constitutionalism: Structures of Government, The Votes that Counted: How the Court Decided the 2000 Presidential Election) have distinguished positions at the University of California, Irvine, School of Law and taught an undergraduate seminar on Free Speech on College Campuses in 2016. Their combined voices bring a clarity and, surprisingly, brevity to this topic that are rare.

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