Principled Labor Law: U.S. Labor Law through a Latin American Method

Cover
Principled Labor Law
Copyright
Dedication
Contents
Acknowledgments
1. Introduction: A Principled Method, Even for the United States
	The Unlikeliest Case
	A Ripe Time for Principled Labor Law
	Can Latin America Teach Us Anything?
	Legal Principles: What Are They, and What Are They Good For?
	Principles in Action: A Teaser
	Supplementing the Labor Constitution
	A Simpler and More Coherent Alternative to Davidov’s “Purposivism”
	Against Economism
	Principled Labor Law and the “Capabilities” Perspective
	A Necessary Countercultural Narrative for the United States
	The Rest of This Book
2. Protection
	Introduction
	The Protective Principle in Latin America
		The International Aspects of Worker Protection
		The Protective Principle in Argentina, Brazil, Chile, and Uruguay
		When in Doubt, Rule in Favor of the Weaker Party: The Rule of In Dubio Pro Operario
	Protection in the United States: An Exercise in Legal Archaeology
		The Protective Principle in the Thirteenth Amendment of the U.S. Constitution
		Free Labor in U.S. Reconstruction and Contemporary Latin America
		The Protective Principle in the NLRA
		The Protective Principle in the FLSA
	What about Employment at Will?
	Conclusion
3. Primacy of Reality
	Introduction: Fact, Fiction, and Principle
	Primacy of Reality in Latin America
		Argentina
		Brazil
		Chile
		Uruguay
	Primacy of Reality in the United States
		Determining Employee and Employer Status
		The Common Law Control Test
		The Primary Purpose Test
		The Joint Employer
		Joint Employment and the FLSA
		Joint Employment and the NLRA
	Primacy of Reality and the Importance of Principles
	Conclusion: For a Labor-​Protective Jurisprudential Toolkit
4. Nonwaiver
	Introduction: A Floor of Mandatory Rights
	Nonwaiver in Latin America
		Positive Law
		Jurisprudence
		Regulating Settlements through Nonwaiver
		Waiver of Contractually Acquired Rights
	Nonwaiver in the United States
		Waiver under the FLSA
		Waiver under Collective Labor Law
		The Perilous American Journey to Arbitration
		The Empirical Evidence against Arbitration
		Buttressing Nonwaiver in the United States: The Thirteenth Amendment, Statutory Reform, and Regulating Arbitration
	Conclusion: Getting Out of the “Procedural” Trap through Principles
5. Continuity
	Introduction: Presuming Stability and Continuity
	Continuity in Latin America
		Contract Termination
		Contractual Dynamics: Continuing Obligations Despite Changing Terms and Parties in the Employment Contract
		Reforming Contracts in Favor of Nonprecarious Work
	Continuity in the United States
		The Peculiar Doctrine of Employment at Will
		Wrongful Dismissal Law under the Shadow of Employment at Will
		A Stubborn Presumption
		Continuity in the Public Sector and Unionized Contexts
		Modifying Contracts and Successorship
	Employment at Will Is Not Labor Law
	Conclusion: States of (Dis)continuity
6. The Return of Labor Principles: Conflict or Harmony?
	Introduction
	Labor Law and Property Rights
	Labor Law and Free Speech
	Labor Rights Are Human Rights
	Conclusion
7. Conclusion: A Universal Idea
	Developed Countries Need Labor Law
	Latin America Can Help
	Protecting the Weak
	A Note on Freedom of Association
	Labor Law: A Victim of Its Own Success
Bibliography
Index