This book introduces a Latin American approach to U.S. labor law, focusing on the legal principles of protection, primacy of reality, non-waiver, and continuity. It offers an alternative to existing scholarly approaches based on a deep history of Latin American labor activism and research.
This book introduces a Latin American approach to U.S. labor law, focusing on the legal principles of protection, primacy of reality, non-waiver, and continuity. It offers an alternative to existing scholarly approaches based on a deep history of Latin American labor activism and research.Hinweis: Dieser Artikel kann nur an eine deutsche Lieferadresse ausgeliefert werden.
Sergio Gamonal C. is Professor of Law at Adolfo Ibáñez University in Chile. César F. Rosado Marzán is Associate Professor of Law and Co-Director of the Institute for Law and the Workplace at the Chicago-Kent College of Law at the Illinois Institute of Technology.
Inhaltsangabe
* 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? What Are They Good For? * Principles in Action: A Teaser * Supplementing the Labor Law Constitution * A Simpler and More Coherent Alternative to Davidov's "Purposivism" * Against Economism * Principled Labor Law and the "Capabilities" Perspective * A Necessary Counter-Cultural Narrative for the United States * The Rest of this Book * Chapter 1: 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 Archeaology * 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 * Chapter 2: 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 Under the FLSA and NLRA * Joint Employment and FLSA * Joint Employment Under the NLRA * Primacy of Reality and the Importance of Principles * Conclusion: For a Labor Protective Jurisprudential Toolkit * Chapter 3: 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 * The Promise of Nonwaiver Under the Thirteenth Amendment * 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: A Way out of the Procedural Trap Through Principles * Chapter 4: 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 Non-Precarious 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 * Chapter 5: 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 * 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
* 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? What Are They Good For? * Principles in Action: A Teaser * Supplementing the Labor Law Constitution * A Simpler and More Coherent Alternative to Davidov's "Purposivism" * Against Economism * Principled Labor Law and the "Capabilities" Perspective * A Necessary Counter-Cultural Narrative for the United States * The Rest of this Book * Chapter 1: 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 Archeaology * 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 * Chapter 2: 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 Under the FLSA and NLRA * Joint Employment and FLSA * Joint Employment Under the NLRA * Primacy of Reality and the Importance of Principles * Conclusion: For a Labor Protective Jurisprudential Toolkit * Chapter 3: 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 * The Promise of Nonwaiver Under the Thirteenth Amendment * 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: A Way out of the Procedural Trap Through Principles * Chapter 4: 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 Non-Precarious 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 * Chapter 5: 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 * 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
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