Pascal McDougall

Volume 29.1 (download PDF)

Abstract

The impact of large firms on workers’ interests has drawn scholarly interest at least since the Industrial Revolution. In recent decades, that interest has intensified, and the view that large firms are incompatible with egalitarian labor market outcomes has been voiced by scholars across the ideological spectrum. Centrist scholars bemoan a rise in market concentration and would use antitrust to restore “competition” and empower workers by raising wages. Scholars in the neo-Brandeisian wing of the left agree with the centrist diagnosis and add that large firms often impose exploitative and authoritarian working conditions. Scholars on the right draw different normative conclusions but also assume that large firms can only offer low wages, hierarchical work, and high manager/ investor incomes—because of the need to secure risk diversification, efficient management, and investments in long-lived assets.

This Article addresses notes of caution to all three camps of the “bigness- necessarily-harms-workers” intellectual coalition. Against centrist advocates of competition as a tool to empower workers, it contends that large firms are often potentially more congenial than smaller firms to the exercise of collective worker power and to large-scale income redistribution towards low-wage workers. Against right-wing defenders of large, shareholder-controlled firms, this Article shows that, under favorable institutional and political conditions, sufficiently strong labor unions can make “efficient” large firms perfectly compatible with significant transfers of income and power from managers/investors to workers. Finally, against left-wing assertions that bigness breeds hierarchy, the Article contends that large firms, because they can enable easier income redistribution, are also potentially more amenable to non-hierarchical working conditions.

This Article builds on old themes from socialist and labor-union-adjacent literatures outlining the mobilizational, technological, and organizational advantages of large firms for redistribution. It sheds new light on these themes by combining simple microeconomic distributive analytics and an institutionalist emphasis on the legally constructed nature of markets. Sectoral and cross-sectoral bargaining coverage, work-sharing within the firm, and bargaining at once on wages and employment are a few of the distributive benefits this Article shows can be more easily attained by unionizing large firms than by unionizing small ones.

In keeping with institutionalist agnosticism about the distributive valence of broadly defined legal forms like “capitalist firms” or “private property,” this Article does not claim that large firms are always better for labor. Instead, it calls for contextual analysis and openness to the idea that—if only for reasons related to the mobilizational constraints facing social movements—larger economic structures may often offer advantages for large-scale redistribution. Moreover, even if in a given context bigness poses disadvantages for redistribution that outweigh the advantages outlined here, the dynamics of political-economic struggle uncovered in this Article will remain important to keep in mind for anyone interested in bringing about large-scale egalitarian redistribution.

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Lily Manshel

Volume 29.1 (download PDF)

Abstract

As one-click applications and a competitive job market result in hundreds of applicants per listing, hiring tools that use Artificial Intelligence (“AI”) promise recruiters a convenient way to sort through the crowd and find the “perfect” candidate, all while eliminating human bias. These tools—which include resume screeners, gamified assessments and personality tests, and video interviewing software—are proliferating so rapidly that their ubiquity is positioned as inevitable by both the software companies that produce them and the employers who use them. However, the use of these automated decision-making tools creates a paradox under existing antidiscrimination law: the systems clearly perpetuate and accelerate existing human biases, but the mechanisms of that bias are nearly impossible to prove due to the complexities of machine learning and the proprietary nature of the underlying algorithms. This “black box” problem shields both discriminatory intent and disparate impact from both public scrutiny and legal inquiry, despite ongoing negative effects on minority groups, especially applicants with disabilities.

By examining theoretical approaches to AI regulation and evaluating the effectiveness of recent regulatory efforts at the state and local level, this Note argues that the “disclosure and consent” models of regulation currently in use are largely unenforceable and do not address the power imbalance between employers and applicants. Instead, any regulatory approach to automated hiring tools must include a federally enforced affirmative duty for developers to empirically prove that their tools are unbiased before they are ever deployed in the marketplace.

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Payal Doctor

Volume 29.1 (download PDF)

Abstract

For decades, transgender people have been fighting for the right to participate in sports leagues consistent with their gender identity. Much of this fight has played out on the federal stage, but recently both the federal government and federal courts have become hostile to transgender rights broadly, and transgender rights in sports in particular. This Comment examines an alternate but increasingly promising avenue for the vindication of transgender rights in sports: state law. Using a New York lawsuit brought by a women’s roller derby team, Long Island Roller Rebels v. County of Nassau, as a case study, this Comment argues that state preemption and broad anti-discrimination statutes can protect transgender rights, shielding against federal overreach. Specifically, it demonstrates how advocates can leverage New York’s Municipal Home Rule Law, Human Rights Law, and Civil Rights Law to create a template for future transgender rights litigation.

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Beena I. Ahmad & Julia Elhai

Volume 29.1 (download PDF)

Abstract

The use of videoconferencing as a substitute for in-person appearances began in immigration proceedings in the mid-1990s. During the height of the COVID-19 pandemic, its use expanded significantly in the criminal and civil contexts, when both state and federal courts invested heavily in the technology needed to conduct proceedings remotely. As we have exited the pandemic, courts have eagerly embraced virtual proceedings to reduce their overburdened dockets. Drawing from our experiences in federal and state court, we argue that judges should not be granted discretion to proceed by videoconferencing.

We posit that there is too great a danger that the subjects of criminal and civil proceedings where liberty is at stake will be deprived of due process, especially where the proceedings hinge on determinations of credibility and mental state. Legal guardrails such as requirements that a litigant consent to the virtual appearance or that judges limit the use of videoconferencing to certain types of extraordinary cases have not prevented courts from expanding its use to inappropriate contexts. Though it has been decades since videoconferencing technology was initially introduced, it remains a poor substitute for in-person appearances and our clients have been unable to meaningfully access counsel or participate in the proceedings. Videoconferencing also raises procedural justice concerns. Our clients have expressed difficulty in accepting the court’s findings about their remorse or capacity when they do not believe that the judge could actually see them. It also further erodes any confidence that our society might have in courts as a site of justice. Any efficiency comes at the cost of humanity, where the decision-maker is removed from the subject of their decision and does not have to face the weight of their decision on a fellow human.

Thus, we conclude that where serious liberty interests are at stake, courts should not be afforded the discretion to proceed virtually.

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Nina Farnia

Volume 29.1 (download PDF)

Abstract

In Part I of this series, I argued that the United States has always already been proto-fascist, but that today it is undergoing a transition into formal, de jure fascism. This transition is the result of a change in the class nature of the state itself.

In Part II, I focus on the legal architecture of fascism. I expose rule-of-law liberalism as having paved U.S. fascism’s path. I note the pernicious role of the law in class wars, race wars, gender wars, and global wars, with particular attention on the making of a total state. I then challenge the notion of an imperial boomerang that returns home from exogenous colonies, since the United States is itself a continental empire. Functioning like a feedback loop, U.S. fascism borrows and learns from its imperial exploits and uses those tactics on the homefront, but its etiology is acutely local. I conclude with the perennial question: What Is to Be Done?

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Kara Sheli Wallis

Volume 28.2 (download PDF)

Abstract

Since its inception, federal “child welfare” policy has focused on the regulation, surveillance, and policing of Black, Indigenous, and immigrant families. Rooted in the legacies of slavery, U.S. settler colonialism, and the nineteenth century child labor “Orphan Train” movement, modern foster care functions to “save” children by removing them from indigent families to be “placed out” with strangers that the government deems more deserving of support. Although this is done under the guise of “child safety,” the real threats to children’s well-being stem from systemic failures—such as unaffordable housing, lack of access to healthcare, and entrenched poverty. Rather than invest in addressing these root causes, federal policy coerces states to implement a family regulation system that commodifies children and creates a market sustained by private agencies and adoption subsidies. Sacrificing public health for government surveillance, mandated reporting laws then make hospitals and doctors’ offices sites to initiate children into this harmful system.

Research shows that mandated reporting for healthcare providers reinforces the scapegoating of parents of color for social ills and poverty, while shielding institutional and individual racism. By turning healthcare providers into a tool of the police state, mandated reporting also deters families from seeking help and undermines the relationships needed to deliver adequate medical care. While some jurisdictions have recognized and attempted to curb these harms of mandated reporting, their efforts are constrained by strict requirements of the federal law’s funding
scheme.

Abolition of the federal mandated reporting apparatus is needed. This Article discusses how the adoption of sound, evidence-based policy would instead lead to funding communities and protecting public health, in replacement of our continued investment in a broken family regulation system—a system that consistently harms the very children it claims to protect.

Benjamin E. Douglas

Volume 28.2 (download PDF)

Abstract

The United States has long been exceptional among liberal states in both its lack of workers’ rights and the undemocratic character of its electoral politics. In this Article, I argue that these two phenomena are related: the power that business managers and owners have over their employees has a depoliticizing, anti-democratic effect. It discourages people with a boss—that is, most working-age people—from speaking their mind, while also preventing them from banding together for mutual benefit and the realization of shared values.

I begin by discussing the United States’ democracy deficit, as illustrated in low voter turnout and the weakness of civil society. I then discuss the ways in which employers have extreme power over their employees. Although many laws aim to limit employer discretion, from anti-discrimination laws to employee speech protections in some states, the backdrop of employer discretion and power renders these laws ineffective.

I then link the issues of depoliticization and employer power, discussing how the intimidation workers feel in the workplace undermines labor organizing, free speech, and political engagement in general. I place particular focus on laws that aim at making workers better citizens, such as whistleblower protections. I argue that giving workers due process, in particular requiring employers to show just cause before terminating employment, would breathe life into the aspirations behind these pro-democracy policies.

I conclude that there are no guaranteed results, but that the sketch of worker due process I am proposing offers real promise to help democratize our society.

Quinn DeCicco & Sarah Michelle Smith

Volume 28.2 (download PDF)

Abstract

New York’s Article 81 guardianship system, intended as a last-resort protection for individuals unable to manage their personal or financial affairs, has become a default intervention that too often strips people of autonomy and dignity. Overburdened guardians, minimal training requirements, and inadequate judicial oversight leave incapacitated persons vulnerable to neglect, exploitation, and “civil death.” This Comment uses Cody’s Story to humanize the systemic failures and evaluates Resolution 561, recently adopted by the New York City Council, which calls for a statewide public guardianship system. While Resolution 561 represents a critical step toward reform, it lacks the structural safeguards necessary for meaningful change. Drawing on comparative models from other states and social work principles of harm reduction and personcentered practice, this Comment argues that New York must pair any new system with enforceable caseload caps, mandatory and ongoing training, robust oversight, equitable funding, and a statutory presumption favoring less restrictive alternatives. Without these reforms, the state will continue to fail the very individuals that guardianship is meant to protect.

Talia Gallo

Volume 28.2 (download PDF)

Abstract

Survivors of intimate partner violence should not face further abuse at the hands of the state, let alone by a tool that is meant to protect them. This Note examines how orders of protections issued by family courts during child abuse and neglect proceedings fail survivors of violence and criminalize individuals in civil courtrooms. This research examines how orders of protection do not always afford individuals due process, despite depriving many of their individual autonomy and the right to parent. Orders of protection are just one example of how family courts punitively surveil marginalized communities, creating irreparable harm under the guise of being an essential civil service necessary to keep communities and families safe. Instead, violations of orders are used against survivors in their family court cases, damaging family bonds and discrediting survivors’ insights into their own experiences. This Note begs its reader to think more deeply about the concept of safety and protection in a system that is meant to guard the interests of some at the expense of others. It implores the reader to shift their focus to the stories of survivors, especially those whose voices and experiences have been too long left out of the conversation and who cry for abolition and reparation as a response to violence.