Description
The gig economy, precarious work, and nonstandard employment have forced labor law scholars to rethink their discipline. Classical remedies for unequal power, capabilities approaches, "third way" market regulation, and laissez-faire all now vie for attention - at least in English.Despite a deep history of labor activism, Latin American scholarship has had scant presence in these debates. This book introduces to an English-language audience another approach: principled labor law, based on Latin American perspectives, using a jurisprudential method focused on worker protection. The authors apply this methodology to the least likely case of labor-protective jurisprudence in the industrialized world: the United States. In doing so, Gamonal and Rosado focus on the Thirteenth Amendment as a labor-protective constitutional provision, the National Labor Relations Act, and the Fair Labor Standards Act. This book shows how principled labor law can provide a clear and simple method for consistent, labor-protective jurisprudence in the United States and beyond.
Table of Contents
Introduction: A Principled Method, Even for the United StatesThe Unlikeliest CaseA Ripe Time for Principled Labor LawCan Latin America Teach Us Anything?Legal Principles: What are they? What Are They Good For?Principles in Action: A TeaserSupplementing the Labor Law ConstitutionA Simpler and More Coherent Alternative to Davidov's "Purposivism"Against EconomismPrincipled Labor Law and the "Capabilities" PerspectiveA Necessary Counter-Cultural Narrative for the United StatesThe Rest of this BookChapter 1: ProtectionIntroductionThe Protective Principle in Latin AmericaThe International Aspects of Worker ProtectionThe Protective Principle in Argentina, Brazil, Chile, and UruguayWhen in Doubt, Rule in Favor of the Weaker Party: The Rule of In Dubio Pro OperarioProtection in the United States: An Exercise in Legal ArcheaologyThe Protective Principle in the Thirteenth Amendment of the U.S. ConstitutionFree Labor in U.S. Reconstruction and Contemporary Latin AmericaThe Protective Principle in the NLRAThe Protective Principle in the FLSAWhat About Employment At Will?ConclusionChapter 2: Primacy of RealityIntroduction: Fact, Fiction, and PrinciplePrimacy of Reality in Latin AmericaArgentinaBrazilChileUruguayPrimacy of Reality in the United StatesDetermining Employee and Employer StatusThe Common Law Control TestThe Primary Purpose TestThe Joint Employer Under the FLSA and NLRAJoint Employment and FLSAJoint Employment Under the NLRAPrimacy of Reality and the Importance of PrinciplesConclusion: For a Labor Protective Jurisprudential ToolkitChapter 3: NonwaiverIntroduction: A Floor of Mandatory RightsNonwaiver in Latin AmericaPositive LawJurisprudenceRegulating Settlements Through NonwaiverWaiver of Contractually Acquired RightsNonwaiver in the United StatesThe Promise of Nonwaiver Under the Thirteenth AmendmentWaiver under the FLSAWaiver Under Collective Labor LawThe Perilous American Journey to ArbitrationThe Empirical Evidence Against ArbitrationButtressing Nonwaiver in the United States: The Thirteenth Amendment, Statutory Reform, and Regulating ArbitrationConclusion: A Way out of the Procedural Trap Through PrinciplesChapter 4: ContinuityIntroduction: Presuming Stability and ContinuityContinuity in Latin AmericaContract TerminationContractual Dynamics: Continuing Obligations Despite Changing Terms and Parties in the Employment ContractReforming Contracts in Favor of Non-Precarious WorkContinuity in the United StatesThe Peculiar Doctrine of Employment at WillWrongful Dismissal Law Under the Shadow of Employment at willA Stubborn PresumptionContinuity in the Public Sector and Unionized ContextsModifying Contracts and SuccessorshipEmployment at will is not Labor LawConclusion: States of (Dis)ContinuityChapter 5: The Return of Labor Principles: Conflict or Harmony?IntroductionLabor Law and Property RightsLabor Law and Free SpeechLabor Rights are Human RightsConclusionConclusion: A Universal IdeaDeveloped Countries Need Labor LawLatin America Can HelpProtecting the WeakA Note on Freedom of AssociationLabor Law: A Victim of its Own Success
