International Governance and Domestic Convergence in Labor Law as Seen from the American Midwest

Indiana Law Journal

Volumn 76, Issue 1-2, 2001, Pages 134-172

  Finkin, Matthew W ^a  

^a NONE

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EID: 0347572334     PISSN: 00196665     EISSN: None     Source Type: Journal    
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References (216)

1. KEVIN H. O'ROURKE & JEFFREY G. WILLIAMSON, GLOBALIZATION AND HISTORY: THE EVOLUTION OF A NINETEENTH-CENTURY ATLANTIC ECONOMY 2 (1999).
2. Katherine Van Wezel Stone, The Prospects for Transnational Labor Regulation: Reconciling Globalization and Labor Rights in the EU and NAFTA, in ADVANCING THEORY IN LABOUR LAW AND INDUSTRIAL RELATIONS IN A GLOBAL CONTEXT 83, 86 (Ton Wilthagen ed., 1998).
3. See generally LEON E. TRAKMAN, THE LAW MERCHANT: THE EVOLUTION OF COMMERCIAL LAW ch. 1 (1983).
4. See generally REINHARD ZIMMERMANN, THE LAW OF OBLIGATIONS: ROMAN FOUNDATIONS OF THE CIVILIAN TRADITION 406-12 (Claredon Press 1996) (1992).
5. 1 MARTIN J. NORRIS, THE LAW OF SEAMEN § 1:3 (4th ed. 1985).
6. Panama R.R. Co. v. Johnson, 264 U.S. 375, 386 (1924).
7. GEORGE T. CURTIS, A TREATISE ON THE RIGHTS AND DUTIES OF MERCHANT SEAMEN ix (1841).
8. INTERNATIONAL LABOUR OFFICE, THE INTERNATIONAL SEAMEN'S CODE (1942); see also George Politakis, Updating the International Seafarers' Code: Recent Developments, 12 INT'L J. MARINE & COASTAL L. 341 (1997).
9. INTERNATIONAL LABOUR OFFICE, THE INTERNATIONAL SEAMEN'S CODE (1942); see also George Politakis, Updating the International Seafarers' Code: Recent Developments, 12 INT'L J. MARINE & COASTAL L. 341 (1997).
10. O'ROURKE & WILLIAMSON, supra note 1, at 209 tbl. 11.1.
11. Id. at 211.
12. Id. at 119.
13. Id. at 273.
14. Harry Arthurs, The Role of Global Law Firms in Constructing or Obstructing a Transnational Regime of Labour Law 4 (June 17-19, 1999) (unpublished paper presented at a Conference on the Legal Culture of Global Business Transactions, International Institute for the Sociology of Law, Oñati, Spain). The author is grateful to Professor Arthurs for supplying and permitting quotation from this paper.
15. Harry Arthurs, The Role of Global Law Firms in Constructing or Obstructing a Transnational Regime of Labour Law 4 (June 17-19, 1999) (unpublished paper presented at a Conference on the Legal Culture of Global Business Transactions, International Institute for the Sociology of Law, Oñati, Spain). The author is grateful to Professor Arthurs for supplying and permitting quotation from this paper.
16. Id. at 8 (citations omitted).
17. Van Wezel Stone, supra note 2, at 86-96.
18. North American Free Trade Agreement, Dec. 17, 1992, 32 I.L.M. 289.
19. Manfred Weiss, The Future Role of the European Union in Social Policy, in LABOR LAW AND INDUSTRIAL RELATIONS AT THE TURN OF THE CENTURY 489 (Chris Engels & Manfred Weiss eds., 1998). For a more optimistic view, see Silvana Sciarra, How 'Global' is Labour Law? The Perspective of Social Rights in the European Union, in ADVANCING THEORY IN LABOUR LAW AND INDUSTRIAL RELATIONS IN A GLOBAL CONTEXT, supra note 2, at 99, 113.
20. Manfred Weiss, The Future Role of the European Union in Social Policy, in LABOR LAW AND INDUSTRIAL RELATIONS AT THE TURN OF THE CENTURY 489 (Chris Engels & Manfred Weiss eds., 1998). For a more optimistic view, see Silvana Sciarra, How 'Global' is Labour Law? The Perspective of Social Rights in the European Union, in ADVANCING THEORY IN LABOUR LAW AND INDUSTRIAL RELATIONS IN A GLOBAL CONTEXT, supra note 2, at 99, 113.
21. Press Release, Cologne European Council, Presidency Conclusions (June 3-4, 1999), http://ue.eu.int/newsroom/main.cfm?LANG=1 (last visited Oct. 31, 2000). The report of the Expert Group on Fundamental Rights, leading up to the Cologne action, identified the following as "the most obvious examples" for inclusion in a charter: nondiscrimination in employment; "the right to determine the use of personal data"; the right to bargain collectively and to resort to collective action; and, "the right to information, consultation and participation, in respect of decisions affecting the interests of workers." EXPERT GROUP ON FUNDAMENTAL RIGHTS, EUROPEAN COMMISSION, AFFIRMING FUNDAMENTAL RIGHTS IN THE EUROPEAN UNION: TIME TO ACT 24 (1999).
22. Press Release, Cologne European Council, Presidency Conclusions (June 3-4, 1999), http://ue.eu.int/newsroom/main.cfm?LANG=1 (last visited Oct. 31, 2000). The report of the Expert Group on Fundamental Rights, leading up to the Cologne action, identified the following as "the most obvious examples" for inclusion in a charter: nondiscrimination in employment; "the right to determine the use of personal data"; the right to bargain collectively and to resort to collective action; and, "the right to information, consultation and participation, in respect of decisions affecting the interests of workers." EXPERT GROUP ON FUNDAMENTAL RIGHTS, EUROPEAN COMMISSION, AFFIRMING FUNDAMENTAL RIGHTS IN THE EUROPEAN UNION: TIME TO ACT 24 (1999).
23. Catherine Barnard, The Transnational Regulation of Employment Law: Evolution in the EU 9 (July 5, 2000) (unpublished manuscript, on file with the Indiana Law Journal). See generally ALAN KRUEGER, FROM BISMARK TO MAASTRICHT: THE MARCH TO EUROPEAN UNION AND THE LABOR COMPACT (Nat'l Bureau of Econ. Research, Working Paper No. 7456, 2000).
24. Catherine Barnard, The Transnational Regulation of Employment Law: Evolution in the EU 9 (July 5, 2000) (unpublished manuscript, on file with the Indiana Law Journal). See generally ALAN KRUEGER, FROM BISMARK TO MAASTRICHT: THE MARCH TO EUROPEAN UNION AND THE LABOR COMPACT (Nat'l Bureau of Econ. Research, Working Paper No. 7456, 2000).
25. Catherine Barnard, The Transnational Regulation of Employment Law: Evolution in the EU 9 (July 5, 2000) (unpublished manuscript, on file with the Indiana Law Journal). See generally ALAN KRUEGER, FROM BISMARK TO MAASTRICHT: THE MARCH TO EUROPEAN UNION AND THE LABOR COMPACT (Nat'l Bureau of Econ. Research, Working Paper No. 7456, 2000).
26. Astute European observers have recognized the enormous variation in American law and have doubted whether America serves as a model for European legal unification. See, e.g., Mathias Reimann, Amerikanisches Privatrecht und europäische Rechtseinheit - Können die USA als Vorbild dienen?, in AMERIKANISCHE RECHTSKULTUR UND EUROPÄISCHES PRIVATRECHT 132 (Reinhard Zimmermann ed., 1995). Reimann discusses the role of the American Law Institute, id. at 142- 43, and another astute observer has argued for the creation of such a body in Europe, see Werner F. Ebke, Unternehmensrechtsangleichung in der Europäischen Union: Brauchen wir ein European Law Institute?, in FESTSCHRIFT FÜR BERNHARD GROßFELD 189 (Ulrich Hübner & Werner Ebkeeds eds., 1999).
27. Astute European observers have recognized the enormous variation in American law and have doubted whether America serves as a model for European legal unification. See, e.g., Mathias Reimann, Amerikanisches Privatrecht und europäische Rechtseinheit - Können die USA als Vorbild dienen?, in AMERIKANISCHE RECHTSKULTUR UND EUROPÄISCHES PRIVATRECHT 132 (Reinhard Zimmermann ed., 1995). Reimann discusses the role of the American Law Institute, id. at 142- 43, and another astute observer has argued for the creation of such a body in Europe, see Werner F. Ebke, Unternehmensrechtsangleichung in der Europäischen Union: Brauchen wir ein European Law Institute?, in FESTSCHRIFT FÜR BERNHARD GROßFELD 189 (Ulrich Hübner & Werner Ebkeeds eds., 1999).
28. See generally Breen Creighton,The Internationalisation of Labour Law, in REDEFINING LABOUR LAW 90 (Richard Mitchell ed., 1995).
29. See INTERNATIONAL LABOUR OFFICE, Supra note 8.
30. INTERNATIONAL LABOUR OFFICE, MARITIME LABOUR CONVENTIONS AND RECOMMENDATIONS 262 (4th rev. ed. 1998). By contrast, Norway has twenty-six conventions in effect, Germany thirty-five, and land-locked Hungary ten. Id. at 259-60.
31. E.g., Van Wezel Stone, supra note 2, at 90-91; Cynthia J. Robertson, Note, Has the Age Discrimination in Employment Act Remained Effective in the United States as Well as Abroad in an Increasingly Globalized Economy?, 6 ELDER L. J. 323, 325 (1998).
32. E.g., Van Wezel Stone, supra note 2, at 90-91; Cynthia J. Robertson, Note, Has the Age Discrimination in Employment Act Remained Effective in the United States as Well as Abroad in an Increasingly Globalized Economy?, 6 ELDER L. J. 323, 325 (1998).
33. See generally PETER P. SWIRE & ROBERT E. LITAN, NONE OF YOUR BUSINESS: WORLD DATA FLOWS, ELECTRONIC COMMERCE, AND THE EUROPEAN PRIVACY DIRECTIVE (1998); Spiros Simitis, From the General Rules on Data Protection to a Specific Regulation of the Use of Employee Data: Policies and Constraints of the European Union, 19 COMP. LAB. L. & POL'Y J. 351 (1998). For the status of negotiations between the European Union and the United States as of the time of writing, see Carol M. Morrissey, The EU Privacy Protection Directive and the U.S. Safe Harbor, at http://www.llrx.com/congress/061500.htm (May 15, 2000).
34. See generally PETER P. SWIRE & ROBERT E. LITAN, NONE OF YOUR BUSINESS: WORLD DATA FLOWS, ELECTRONIC COMMERCE, AND THE EUROPEAN PRIVACY DIRECTIVE (1998); Spiros Simitis, From the General Rules on Data Protection to a Specific Regulation of the Use of Employee Data: Policies and Constraints of the European Union, 19 COMP. LAB. L. & POL'Y J. 351 (1998). For the status of negotiations between the European Union and the United States as of the time of writing, see Carol M. Morrissey, The EU Privacy Protection Directive and the U.S. Safe Harbor, at http://www.llrx.com/congress/061500.htm (May 15, 2000).
35. See generally PETER P. SWIRE & ROBERT E. LITAN, NONE OF YOUR BUSINESS: WORLD DATA FLOWS, ELECTRONIC COMMERCE, AND THE EUROPEAN PRIVACY DIRECTIVE (1998); Spiros Simitis, From the General Rules on Data Protection to a Specific Regulation of the Use of Employee Data: Policies and Constraints of the European Union, 19 COMP. LAB. L. & POL'Y J. 351 (1998). For the status of negotiations between the European Union and the United States as of the time of writing, see Carol M. Morrissey, The EU Privacy Protection Directive and the U.S. Safe Harbor, at http://www.llrx.com/congress/061500.htm (May 15, 2000).
36. See, e.g., Amanda Coulthand, Minimum Labor Standards in Asia-Pacific Region: A Social Clause in APEC, in FACING THE CHALLENGE IN THE ASIA PACIFIC REGION 48 (Richard Mitchell & Jesse Min Aun Wu eds., 1997).
37. See Christopher L. Erickson & Daniel J.B. Mitchell, Labor Standards and Trade Agreements: U.S. Experience, 19 COMP. LAB. L. & POL'Y J. 145, 153 (1998);
38. Charles Tiefer, "Alongside" the Fast Track: Environmental and Labor Issues in FTAA, 7 MINN. J. GLOBAL TRADE 329, 360 (1998).
39. Supra text accompanying note 13.
40. See supra notes 25-26.
41. See STEVEN DAVIS ET AL., JOB CREATION AND DESTRUCTION 49 (1996) ("[C]areful studies suggest that international trade accounts for only part - possibly a small part - of employment losses in low-skill manufacturing industries.").
42. North American Agreement on Labor Cooperation, Sept. 14, 1993, 32 I.L.M. 1502.
43. See Clyde Summers, NAFTA's Labor Side Agreement and International Labor Standards, 3 J. SMALL & EMERGING Bus. L. 173, 179, 186 (1999).
44. Save insofar as these are made obligatory under the state's domestic law. Id. 34. See, for example, Cruise Industry Adopts Work Rules, N. Y. TIMES, Dec. 24, 1999, at A16, which followed the publication of a front-page exposé, Douglas Frantz, For Cruise Ships' Workers, Much Toil, Little Protection, N.Y. TIMES, Dec. 24, 1999, at Al.
45. Save insofar as these are made obligatory under the state's domestic law. Id. 34. See, for example, Cruise Industry Adopts Work Rules, N. Y. TIMES, Dec. 24, 1999, at A16, which followed the publication of a front-page exposé, Douglas Frantz, For Cruise Ships' Workers, Much Toil, Little Protection, N.Y. TIMES, Dec. 24, 1999, at Al.
46. Bob Hepple, A Race to the Top? International Investment Guidelines and Corporate Codes of Conduct, 20 COMP. LAB. L. & POL'Y J. 347, 357-60 (1999).
47. Id.; see also Bob Hepple, New Approaches to International Labour Regulation, 26 INDUS: L.J. 353, 355-56 (1997); Jerome Levinson, Certifying International Worker Rights: A Practical Alternative, 20 COMP. LAB. L. & POL'Y J. 401, 406-07 (1999).
48. Id.; see also Bob Hepple, New Approaches to International Labour Regulation, 26 INDUS: L.J. 353, 355-56 (1997); Jerome Levinson, Certifying International Worker Rights: A Practical Alternative, 20 COMP. LAB. L. & POL'Y J. 401, 406-07 (1999).
49. See generally Mark Barenberg, Globalization and Labor Law: Legal and Extra-Legal Norms Across Multiple Regimes (July 27, 1998) (unpublished manuscript, presented at Japan/U.S./E.U. Joint Research in Labor Law: Response to New Challenges in the 21st Century).
50. See generally Mark Barenberg, Globalization and Labor Law: Legal and Extra-Legal Norms Across Multiple Regimes (July 27, 1998) (unpublished manuscript, presented at Japan/U.S./E.U. Joint Research in Labor Law: Response to New Challenges in the 21st Century).
51. According to a recent study of employment systems in the automotive and telecommunications industries, this diffusion has produced as much divergence within countries as convergence among them. HARRY C. KATZ & OWEN DARBISHIRE, CONVERGING DIVERGENCES: WORLDWIDE CHANGES IN EMPLOYMENT SYSTEMS 263 (2000).
52. The federal maritime law of 1872, for example, expressly borrowed from the British Merchant Shipping Act of 1854 dealing with seamen's certificates of discharge. Compare Act of June 7, 1872, § 24, 17 Stat. 262, 267, with The Merchant Shipping Act, 1854, 17 & 18 Vict. ch. 104, § 176 (Eng.).
53. Alfred L. Brophy, "Ingenium est Fateri per quos profeceris:" Francis Daniel Pastorius' Young Country Clerk's Collection and Anglo-American Legal Literature, 1682-1716, 3 U. CHI. L. SCH. ROUNDTABLE 637 (1996) (reviewing the literature on the reception of English law and the debates surrounding it).
54. See. e.g., C.B. LABATT, COMMENTARIES ON THE LAW OF MASTER AND SERVANT (1913) (in eight volumes).
55. See generally DANIEL T. RODGERS, ATLANTIC CROSSINGS: SOCIAL POLITICS IN A PROGRESSIVE AGE (1998).
56. Id. at 98.
57. Id. at 110.
58. Illustration, 9 AM. LAB. LEGIS. REV. 64 (1919).
59. Id. at 427-28.
60. Id. at 508.
61. Id. at 473.
62. This according to the now computerized Grolier Encyclopedia, The Metric System, available at http://www.uffda.com/~bink/metric.html (last visited Nov. 9, 2000).
63. Colin J. Bennett, How States Utilize Foreign Evidence, 11 J. PUB. POL'Y. 31, 50 (1991).
64. Id. at 37. On the potential of European convergence with U.S. labor law, see, for example, REINHOLD FAHLBECK, FLEXIBILISATION OF WORKING LIFE: POTENTIALS AND CHANGES FOR LABOUR LAW (1998).
65. See Brian J. Kreiswirth, The Role of the Basic Public Pension in a Retirement Income Security System, 19 COMP. LAB. L. & POL'Y J. 393, 434 (1998).
66. See James R. Storey & Jennifer A. Neisner, Unemployment Compensation in the Group of Seven Nations, in UNEMPLOYMENT INSURANCE IN THE UNITED STATES: AN ALYSIS OF POLICY ISSUES ch. 14 (Christopher J. O'Leary & Stephen A. Wander eds., 1997).
67. See Leo J.M. Aarts et al., Convergence: A Comparison of European and United States Disability Policy, in NEW APPROACHES TO DISABILITY IN THE WORKPLACE 299 (Terry Thomason et al. eds., 1998).
68. See MARC LINDER & INGRID NYGAARD, VOID WHERE PROHIBITED: REST BREAKS AND THE RIGHT TO URINATE ON COMPANY TIME ch. 8 (1998).
69. LAURENCE MISHEL ET AL., THE STATE OF WORKING AMERICA 1998-99 ch. 8 (1999).
70. See, e.g., Camilla E. Watson, Machiavelli and the Politics of Welfare, National Health, and Old Age: A Comparative Perspective of the Policies of the United States and Canada, 1993 UTAH L. REV. 1337.
71. Rolf Birk, The Teaching of Labour Law in a European Law School, in THE COMMON LAW OF EUROPE AND THE FUTURE OF LEGAL EDUCATION 443, 449 (Bruno de Witte & Catherine Forder eds., 1992) (emphasis added).
72. See generally Bernhard Großfeld, KERNFRAGEN DER RECHTSVERGLEICHUNG (1996); Alan Watson, Legal Transplants and Law Reform, 92 LAW Q. REV. 79, 81 (1976); Christopher J. Whelan, Labor Law and Comparative Law, 63 TEX. L. REV. 1425, 1433, 1437 (1985).
73. See generally Bernhard Großfeld, KERNFRAGEN DER RECHTSVERGLEICHUNG (1996); Alan Watson, Legal Transplants and Law Reform, 92 LAW Q. REV. 79, 81 (1976); Christopher J. Whelan, Labor Law and Comparative Law, 63 TEX. L. REV. 1425, 1433, 1437 (1985).
74. See generally Bernhard Großfeld, KERNFRAGEN DER RECHTSVERGLEICHUNG (1996); Alan Watson, Legal Transplants and Law Reform, 92 LAW Q. REV. 79, 81 (1976); Christopher J. Whelan, Labor Law and Comparative Law, 63 TEX. L. REV. 1425, 1433, 1437 (1985).
75. Cf. Birk, supra note 58, at 445.
76. Id.
77. MODERN LANGUAGE ASSOCIATION, FOREIGN LANGUAGE ENROLLMENTS IN UNITED STATES INSTITUTIONS OF HIGHER EDUCATION (1998).
78. Id.
79. Paul Desruisseaux, 15% Rise in American Students A broad Shows Popularity of Non- European Distinctions, CHRON. HIGHER EDUC., Dec. 10, 1999, at A60.
80. Id. at A61.
81. Id.
82. Id.
83. Muller v. Oregon, 208 U.S. 412, 419 n.1 (1908). What flummoxed the Court was not that many of the materials were foreign, but that they were not legal. See generally PHILIPPA STRUM, LOUIS D. BRANDEIS: JUSTICE FOR THE PEOPLE ch. 8 (1984).
84. Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 214-18 (1890).
85. OLIVER WENDELL HOLMES, THE COMMON LAW Lecture VI (Mark De Wolfe Howe ed., 1963) (1881). For reference to Puchta, see id. at 164.
86. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS (1921).
87. The inaugural volume of the Yale Law Journal two years later was more parochial; but even there a discussion of Methods of Legal Education was published prominently to feature an essay by Professor Christopher Tiedeman arguing for a borrowing from "German methods." Christopher Tiedeman, Methods of Legal Education (pt. 3), 1 YALE L. J. 150, 158 (1892). Tiedeman, "a prominent treatise writer and legal academic," WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT 89 (1998), spoke of the system he "had learned to admire while setting under the skillful instruction of the celebrated von Ihering of the University of Goettingen." Tiedeman, supra, at 150.
88. The inaugural volume of the Yale Law Journal two years later was more parochial; but even there a discussion of Methods of Legal Education was published prominently to feature an essay by Professor Christopher Tiedeman arguing for a borrowing from "German methods." Christopher Tiedeman, Methods of Legal Education (pt. 3), 1 YALE L. J. 150, 158 (1892). Tiedeman, "a prominent treatise writer and legal academic," WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT 89 (1998), spoke of the system he "had learned to admire while setting under the skillful instruction of the celebrated von Ihering of the University of Goettingen." Tiedeman, supra, at 150.
89. The inaugural volume of the Yale Law Journal two years later was more parochial; but even there a discussion of Methods of Legal Education was published prominently to feature an essay by Professor Christopher Tiedeman arguing for a borrowing from "German methods." Christopher Tiedeman, Methods of Legal Education (pt. 3), 1 YALE L. J. 150, 158 (1892). Tiedeman, "a prominent treatise writer and legal academic," WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT 89 (1998), spoke of the system he "had learned to admire while setting under the skillful instruction of the celebrated von Ihering of the University of Goettingen." Tiedeman, supra, at 150.
90. The inaugural volume of the Yale Law Journal two years later was more parochial; but even there a discussion of Methods of Legal Education was published prominently to feature an essay by Professor Christopher Tiedeman arguing for a borrowing from "German methods." Christopher Tiedeman, Methods of Legal Education (pt. 3), 1 YALE L. J. 150, 158 (1892). Tiedeman, "a prominent treatise writer and legal academic," WILLIAM M. WIECEK, THE LOST WORLD OF CLASSICAL LEGAL THOUGHT 89 (1998), spoke of the system he "had learned to admire while setting under the skillful instruction of the celebrated von Ihering of the University of Goettingen." Tiedeman, supra, at 150.
91. James B. Thayer, The Burden of Proof, 4 HARV. L. REV. 45, 52 n.1, 58 n.1 (1890).
92. Note, 4 HARV. L. REV. 87, 88-89 (1890).
93. James B. Thayer, "Law and Fact " in Jury Trials, 4 HARV. L. REV. 147, 149 n.2, 155 nn. 1-2 (1890).
94. Note, 4 HARV. L. REV. 236 (1890).
95. J.B. Ames, The Doctrine of Price v. Neal, 4 HARV. L. REV. 297, 306-07 (1890).
96. Grafton D. Cushing, On Certain Cases Analogous to Trade-Marks, 4 HARV. L. REV. 321, 328-30 (1890).
97. Oliver Wendell Holmes, Agency, 4 HARV. L. REV. 345 passim (1890).
98. Note, 4 HARV. L. REV. 38, 38 (1890) (quoting Note, 6 LAW Q.R. 122, 122 (1890) (quoting In re Missouri Steamship Co. 42 Ch. D. 321, 330 (Ch. 1889) (Fry, L. J.))).
99. Note, 4 HARV. L. REV. 38, 38 (1890) (quoting Note, 6 LAW Q.R. 122, 122 (1890) (quoting In re Missouri Steamship Co. 42 Ch. D. 321, 330 (Ch. 1889) (Fry, L. J.))).
100. This may well have been so even in the provincial Midwest of the time. In the fifteen year period, 1897 to 1912, twenty-four persons served on the faculty of the University of Illinois College of Law, half for three or fewer years. LAW IN THE GRAND MANNER: A POPULAR HISTORY OF THE COLLEGE OF LAW AT THE UNIVERSITY OF ILLINOIS 1897-1967 (1967). But of that transient faculty, one, the Dean from 1899 to 1903, had studied at Heidelberg and received a doctorate in Civil and Canon Law, one had received a B.C.L. at Oxford, and one had prepared at a Gymnasium in Bonn. THE SEMI-CENTENNIAL ALUMNI RECORD OF THE UNIVERSITY OF ILLINOIS (Franklin Scott ed., 1918).
101. This may well have been so even in the provincial Midwest of the time. In the fifteen year period, 1897 to 1912, twenty-four persons served on the faculty of the University of Illinois College of Law, half for three or fewer years. LAW IN THE GRAND MANNER: A POPULAR HISTORY OF THE COLLEGE OF LAW AT THE UNIVERSITY OF ILLINOIS 1897-1967 (1967). But of that transient faculty, one, the Dean from 1899 to 1903, had studied at Heidelberg and received a doctorate in Civil and Canon Law, one had received a B.C.L. at Oxford, and one had prepared at a Gymnasium in Bonn. THE SEMI-CENTENNIAL ALUMNI RECORD OF THE UNIVERSITY OF ILLINOIS (Franklin Scott ed., 1918).
102. RODGERS, supra note 41, at 488.
103. Id. at 480.
104. Laurence M. Friedman et al., State Supreme Courts: A Century of Style and Citation, 33 STAN. L. REV. 773, 799 (1981) ("In 1870-1900, there were thirty-five cases in our sample that cited eight or more foreign cases; in 1940-1970 there were none.").
105. Commenting on the collapse of the U.S. effort to connect labor standards to the World Trade Organization's regime, William Safire applauded the administration's effort: I believe the United States should be a light unto nations by virtue of our example of enlightened free enterprise. That means not lowering our health and labor standards to let investors everywhere make a buck, but applying those standards to others who want to make a buck with us. William Safire, The Clinton Round, N.Y. TIMES, Dec. 6, 1999, at A31. Do we not hear here Rubinow's echo? Or would Mr. Safire acknowledge that the United States could be similarly "enlightened" by German, French, or Italian law?
106. DEREKBOK, THE STATE OF THE NATION: GOVERNMENT AND THE QUEST FOR A BETTER SOCIETY (1996).
107. Id. at 359-89.
108. Id. at 272. As this paper was in preparation, the following appeared: Elizabeth Olson, Americans Lead the World in Hours Worked: The Workweek Grows Longer in the United States but Shrinks in Other Countries, N. Y. TIMES, Sept. 7, 1999, at C9. American workers averaged 1966 hours in 1997, as compared to 1560 for German workers and 1656 for French workers, even as productivity gains in the United States lagged behind those in Germany and France. Id. But, since the end of World War II, work hours - one of the most contentious labor issues of the nineteenth and early twentieth century - ceased to appear on the political map. BENJAMIN K. HUNNICUTT, WORK WITHOUT END: ABANDONING SHORTER HOURS FOR THE RIGHT TO WORK 1-3 (1988).
109. Id. at 272. As this paper was in preparation, the following appeared: Elizabeth Olson, Americans Lead the World in Hours Worked: The Workweek Grows Longer in the United States but Shrinks in Other Countries, N. Y. TIMES, Sept. 7, 1999, at C9. American workers averaged 1966 hours in 1997, as compared to 1560 for German workers and 1656 for French workers, even as productivity gains in the United States lagged behind those in Germany and France. Id. But, since the end of World War II, work hours - one of the most contentious labor issues of the nineteenth and early twentieth century - ceased to appear on the political map. BENJAMIN K. HUNNICUTT, WORK WITHOUT END: ABANDONING SHORTER HOURS FOR THE RIGHT TO WORK 1-3 (1988).
110. Id. at 272. As this paper was in preparation, the following appeared: Elizabeth Olson, Americans Lead the World in Hours Worked: The Workweek Grows Longer in the United States but Shrinks in Other Countries, N. Y. TIMES, Sept. 7, 1999, at C9. American workers averaged 1966 hours in 1997, as compared to 1560 for German workers and 1656 for French workers, even as productivity gains in the United States lagged behind those in Germany and France. Id. But, since the end of World War II, work hours - one of the most contentious labor issues of the nineteenth and early twentieth century - ceased to appear on the political map. BENJAMIN K. HUNNICUTT, WORK WITHOUT END: ABANDONING SHORTER HOURS FOR THE RIGHT TO WORK 1-3 (1988).
111. I chose Minnesota to compare to Indiana because the contiguous Midwestern states - Illinois, Michigan, and Ohio - are much larger and demographically diverse than Indiana, and noncontiguous Iowa is much smaller and less diverse. Wisconsin would be as close a demographic match as Minnesota and the legal differences laid out in Table II would be just as stark; but, Madison doesn't rhyme with Indianapolis.
112. Almanac Issue 2000-2001, CHRON. HIGHER EDUC., Sept. 1, 2000, at 75, 87 [hereinafter Almanac].
113. Id.
114. Id.
115. Id. at 75-76, 87.
116. Id. at 76, 87.
117. Bureau of Labor Statistics, U.S. Dep't of Labor, MONTHLY LAB. REV., May 1999, at 72tbl.11.
118. BARRY T. HIRSCH & DAVID A. MACPHERSON, UNION MEMBERSHIP & EARNINGS DATA BOOK 29-30 tbl.5a (1998).
119. IND. CODE § 22-2-2-4(b), (f), (g) (1998) (subject to numerous exceptions).
120. MINN. STAT. ANN. § 177.24(b) (West Supp. 2000) (subject to several exemptions).
121. Walter Nicolson, Initial Eligibility for Unemployment Compensation, in UNEMPLOYMENT INSURANCE IN THE UNITED STATES 91, 96 tbl.3.1 (Christopher O'Leary & Stephen Wandner eds., 1997).
122. Id.
123. Id.
124. U.S. CHAMBER OF COMMERCE, 1999 ANALYSIS OF WORKERS' COMPENSATION LAWS chart VI (1999).
125. Raised to $254,000 effective July 1, 2000. IND. CODE § 22-3-3-22(e) (Supp. 1999).
126. IND. CODE §§ 23-1-37-13 to -14 (Supp. 1999).
127. MINN. STAT. ANN. § 181.970 (West Supp. 2000).
128. MINN. STAT. ANN. § 268.97 (West Supp. 2000).
129. MINN. STAT. ANN. § 177.253 subd. 1 (West 1993).
130. MINN. STAT. ANN. § 181.939 (West Supp. 2000).
131. MINN. STAT. ANN. § 177.254 subd. 1 (West 1993).
132. IND. CODE § 22-8-1.1-17.1 (1998).
133. MINN. STAT. ANN. § 182.655 subds. 10-10a (West 1993 & Supp. 2000).
134. IND. CODE § 22-8-1.1-38.1.
135. MINN. STAT. ANN. § 182.654 subd. 9 (West 1993).
136. Id. § 182.653 subds. 4b, 4c, 4f.
137. IND. CODE § 22-8-1.1-39.1. The Commission is authorized to secure a court order rectifying such conditions; employees may seek mandamus against the Commission for an arbitrary refusal to initiate a proceeding to order correction of conditions that can reasonably be expected to cause death or serious physical harm.
138. MINN. STAT. ANN. § 182.654 subd. 11 (West 1993).
139. MINN. STAT. ANN. § 182.676 (West Supp. 2000) (of workplaces with twenty-five or more employees).
140. MINN. STAT. ANN. §§ 256L.01-18 (West Supp. 2000). In common with all states except Hawaii, Minnesota does not require employers to provide health insurance; but, it is one of a very few states to subsidize health insurance for the working poor. See HEALTH POLICY REFORM IN AMERICA: INNOVATIONS FROM THE STATES 218 (Howard M. Leichter ed., 2d ed. 1997).
141. IND. CODE § 22-9-1-3.
142. MINN. STAT. ANN. § 363.021 (West Supp. 2000).
143. MINN. STAT. ANN. §§ 181.940 to .944 (West 1993 & Supp. 2000).
144. MINN. STAT. ANN. § 181.9412 subd. 2 (West Supp. 2000).
145. MINN. STAT. ANN. § 204C.04 subd. 1 (West Supp. 2000).
146. MINN. STAT. ANN. § 202A.135 (West 1993).
147. IND. CODE § 22-5-3-3 (1998). The Indiana courts have extended common-law protection to forbid discharge for a reason violative of public policy; but, this exception to the at-will employment rule has been narrowly construed. See, e.g., Bricker v. Federal-Mogul Corp., 29 F. Supp. 2d 508, 511 (S.D. Ind. 1998) (discharging an employee for refusal to back-date inspection reports is allowed); Wior v. Anchor Indus., 669 N.E.2d 172, 177-78 (Ind. 1996) (discharging manager for refusing to discharge an employee with a workers' compensation claim is allowed).
148. MINN. STAT. ANN. § 181.932 subd. 1(a) (West 1993).
149. IND. CODE § 22-5-4-1.
150. MINN. STAT. ANN. § 181.938 subd. 2 (subject to specific job related restrictions).
151. IND. CODE § 22-9-5-24(c).
152. MINN. STAT. ANN. §§ 181.950 to .957 (West 1993 & Supp. 2000).
153. MINN. STAT. ANN. § 181.75(1) (West 1993).
154. MINN. STAT. ANN. §§ 181.960 to.966 (West 1993 & Supp. 2000).
155. IND. CODE § 22-6-3-1.
156. MINN. STAT. ANN. § 181.933 (West 1993).
157. IND. CODE § 22-5-3-1(b), (c).
158. MINN. STAT. ANN. § 181.962 (West 1993).
159. See IND. CODE § 35-33.5-1-5 (1998) (prohibiting only recording of telephonic communications by a non-"sender").
160. MINN. STAT. ANN. § 626A.02 (West Supp. 2000).
161. The University of Nebraska Press is publishing a series on politics and government in the fifty American states. A work on Minnesota has been published, DANIEL J. ELAZAR ET AL., MINNESOTA POLITICS AND GOVERNMENT (1999), but, alas, not yet Indiana. For a comparative snapshot under a variety of heads, see POLITICS IN THE AMERICAN STATES: A COMPARATIVE ANALYSIS (Virginia Gray et al. eds., 7th ed. 1999).
162. The University of Nebraska Press is publishing a series on politics and government in the fifty American states. A work on Minnesota has been published, DANIEL J. ELAZAR ET AL., MINNESOTA POLITICS AND GOVERNMENT (1999), but, alas, not yet Indiana. For a comparative snapshot under a variety of heads, see POLITICS IN THE AMERICAN STATES: A COMPARATIVE ANALYSIS (Virginia Gray et al. eds., 7th ed. 1999).
163. What Brandeis wrote was that the incorporation laws of the several states made it possible for them to compete for the business of incorporation based on the least costly and restrictive features of their laws: "The race was one not of diligence but of laxity." Liggett Co. v. Lee, 288 U.S. 517, 559 (1933) (Brandeis, J., dissenting). But the phrase that has come down to us is of a "race for the bottom." William L. Cary, Federalism and Corporate Law: Reflections Upon Delaware, 83 YALE L.J. 663, 705 (1974).
164. New State Ice Co. v. Liebman, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
165. In terms of organized interests registered to lobby the legislature, the national average is 61.6 business interests registered per state and 4.2 labor interests. ELAZAR ET AL., supra note 139, at 54 tbl.4. These figures for Minnesota are 59.8 and 5.7, respectively. Id. "Labor interests" are the unions of private and public employees. Id. at 58.
166. The statutes are compiled in MATTHEW W. FINKIN, PRIVACY IN EMPLOYMENT LAW 322-40 (1995).
167. For example, Philip Morris published a newsletter entitled Smoker 's Advocate and R. J. Reynolds Tobacco Company published a similar newsletter on smokers' rights, Choice, couching its appeal for grassroots support in terms of the individual's right to privacy.
168. The statutes are compiled in FINKIN, supra note 143, at 357-82 (Supp. 2000).
169. With a nod to the shade of EZRA POUND, Cantico Del Sole, in PERSONÆ: THE SHORTER POEMS OF EZRA POUND 182 (Lea Baechler & A. Walton Lite eds., New Directions 1990) (1926) ("The thought of what America would be like / If the Classics had a wide circulation / [T]roubles my sleep.").
170. Schrader v.Eli Lilly & Co., 639 N.E.2d 258, 260-61 (Ind. 1994); Wirig v. Kinney Shoe Corp., 461 N.W.2d 374, 377, 379-81 (Minn. 1990).
171. Matthew W. Finkin, Discharge and Disgrace: A Comment on the "Urge to Treat People as Objects", 1 EMPLOYEE RTS. & EMP. POL'Y J. 1 (1997).
172. Wing, 461 N.W.2d at 377.
173. Wing v. Kinney Shoe Corp., 448 N.W.2d 526, 532 (Minn. Ct. App. 1989), aff'd in part and rev'd in part, 461 N.W.2d 374 (Minn. 1990).
174. Id. at 533.
175. Schrader, 639 N.E.2d at 260.
176. Schrader v. Eli Lilly & Co., 621 N.E.2d 635, 642 (Ind. Ct. App. 1993), vacated by 639 N.E.2d 258 (Ind. 1994).
177. Wirig, 461 N.W.2d at 379-80.
178. Schrader, 639 N.E.2d at 263.
179. This is so in Indiana, see, e.g., Romack v. Pub. Serv. Co. of Ind., 499 N.E.2d 768, 777 (Ind. Ct. App. 1986) (Conover, P.J., dissenting); Vehslage v. Rose Acre Farms, Inc., 474 N.E.2d 1029, 1031 (Ind. Ct. App. 1985), as well as Minnesota, see, e.g., Badger Equip. Co. v. Brennan, 431 N.W.2d 900, 902-03 (Minn. Ct. App. 1988); Klemetsen v. Sternberg Constr. Co., 415 N.W.2d 887, 888 (Minn. Ct. App. 1987), aff'd en banc, 424 N.W.2d 70 (Minn. 1988).
180. Friedman et al., supra note 83, at 797-98.
181. Id. at 798.
182. E.g., Drennan v. Westinghouse Elec. Corp., 328 So. 2d 52 (Fla. Distl Ct. App. 1976); Welch v. Chicago Tribune Co., 340 N.E.2d 539 (111. App. Ct. 1975); Sias v. General Motors Corp., 127 N. W.2d 357 (Mich. 1964). At the time, however, the Supreme Court of Wisconsin had adopted the position taken by the Indiana and Minnesota Supreme Courts. See Zinda v. La. Pacific Corp., 440 N.W.2d 548 (Wis. 1989).
183. Inquiry was made of Professor Max Rood, the University of Leiden, Professor Reinhold Fahlbeck, the University of Lund, and Frank Hendrickx of the Institute for Labor Law, Catholic University of Leuven. I wish to express my appreciation for their responses, which I summarize in text; errors in summarization are entirely my own.
184. Matthew W. Finkin, Employee Privacy, American Values, and the Law, 72 CHI.-KENT L. REV. 221, 261-62, 266-68 (1996). See generally Hans Stoll, The General Right to Personality in German Law: An Outline of its Development and Present Significance, in PROTECTING PRIVACY 29 (Basil Markesinis ed., 1999).
185. Matthew W. Finkin, Employee Privacy, American Values, and the Law, 72 CHI.-KENT L. REV. 221, 261-62, 266-68 (1996). See generally Hans Stoll, The General Right to Personality in German Law: An Outline of its Development and Present Significance, in PROTECTING PRIVACY 29 (Basil Markesinis ed., 1999).
186. Finkin, supra note 161, at 261-62, 266-68.
187. Judgment of Feb. 18, 1999, Bundesarbeitsgericht [Supreme Labor Court], 8 AZR 735/97 (F.R.G.) (The newsletter began, "The laziest worker in Germany: Worked only 3 days in 3 months. She could be the Queen of Idlers.") (trans. by author). The court rejected the argument that the article was protected under the freedom of the press. Id. It should be noted that the case was not concerned with whether or not Ms. M could have been discharged for malingering. Id. 164. Judgment of July 7, 1989, Arbeitsgericht Regensburg [Labor Court of Regensburg], 3 BVGa 1/892, reprinted in ARBEITSRECHT IM BETRIEB, Nov. 1989, at 354.1 am indebted to Professor Winfried Boecken of the University of Konstanz for bringing these decisions to my attention.
188. 208 U.S. 412 (1908).
189. The English writer, quoted approvingly in the 1890 Harvard Law Review for taking Lord Justice Fry to task, opined of reference to American opinions by English courts: '"[I]f [American decisions] are relevant, they may be of the highest value ... for the intrinsic excellence of the judgments ...."' 4 HARV. L. REV. 38, 39 (1890) (quoting Note, 6 LAW Q. REV. 122, 122 (1890)). This, to be sure, is in terms of the common law.
190. PAUL DOREMUS ET AL., THE MYTH OF THE GLOBAL CORPORATION 148 (1998) ("If certain domestic structures in advanced industrial states are evolving in ways that make it more difficult to constrain corporate power, they should be adjusted internally.").
191. Id. at 138.
192. Note Alan Krueger's treatment of the United States in his discussion of the European Union, KRUEGER, supra note 19.
193. PAUL OSTERMAN, SECURING PROSPERITY 183 (1999) ("The power of the market does not delegitimate policy; rather, it makes policy all the more important to a healthy economy and society.").
194. Id. at 188-89.
195. Martin Saiz and Susan Clarke argue that globalization significantly alters the traditional interstate competitive landscape: "The traditional interjurisdictional competition for investment takes on anew dimension when the costs of production are lower outside the United States and all states are potential losers." Martin Saiz & Susan E. Clarke, Economic Development and Infrastructure Policy, in POLITICS IN THE AMERICAN STATES : A COMPARATIVE ANALYSIS, supra note 139, at 477. California, they point out, may now compete for investment with "Latin America rather than other states in the United States." Id. at 499. If Bakersfield loses out to Lima for foreign investment, the direct impact on Bakersfield seems indistinguishable from losing out to Baltimore. No doubt there is an indirect negative effect insofar as the U.S. economy as a whole has lost out; but, the specific effect on California would be difficult to discern, which makes local labor conditions amenable to local political forces. Indeed, Saiz and Clarke, after surveying various state responses to global competitiveness, remark that "the state context is more politicized and the organization of state politics is more amenable to political negotiation in regard to economic development issues than previously assumed." Id. at 500.
196. Two examples Saiz and Clarke give of interstate competition for investment are the state concessions given for the location of Daimler-Benz's sports-utility plant and for the location of General Motor's Saturn plant. Thirty-five states bid for the former, thirty for the latter. Id. at 476-77. To the losing states it would seem irrelevant that one was a foreign and the other a domestic investment. The possibility that either might choose to be situated instead in Mexico may moderate employee wage and benefit demands here, but it is not likely that American states will lower their labor protections to Mexican standards. Sanford M. Jacoby, Social Dimensions of Global Economic Integration, in THE WORKERS OF NATIONS 3, 17-18 (Sanford M. Jacoby ed., 1995) ("To maintain living standards, the advanced workers are forced to compete on factors other than cost: product quality, time to market, stylishness, and speed of innovation.").
197. In Kurtzman v. Applied Analytical Industries, 493 S.E.2d 420 (N.C. 1997), the Supreme Court of North Carolina refused to imply a requirement of just cause to terminate a business executive by reason of oral assurances of permanence coupled with the employee's relocation from Rhode Island to North Carolina. Id. at 422. "North Carolina is an employment-at-will state," the court opined. Id. "[T]he [at-will] rule remains an incentive to economic development, and any significant erosion of it could serve as a disincentive." Id. at 423 (emphasis added). So, too, did the Supreme Court of Wyoming reject the availability of prima facie tort to contest the discharge of an at-will employee: Our jurisprudence in the employment context has developed from the premise that the stability of the business community is our primary consideration and that stability is best served by applying contract principles [in contrast to tort principles] in the employment context.... The at-will employment rule offers no remedy to an employee who has been arbitrarily or improperly discharged and has suffered adverse effects on his or her economic and social status regardless of how devastating those effects actually were. Stability in the business community is preserved because, at least at the state level, employers' and employees' decisions remain subject only to the express or implied contracts into which they have voluntarily entered or subject to statute. Townsend v. Living Centers Rocky Mountain, Inc., 947 P.2d 1297, 1299 (Wyo. 1997) (emphasis added).
198. Almanac, supra note 90, at 75, 87.
199. LAURENCE MISHEL ET AL., THE STATE OF WORKING AMERICA 1998-1999, at 315, 330 tbl.7.7 (1999).
200. Id. at 332 tbl.7.8.
201. Id. at 338 tbl.7.10.
202. Id.
203. Bureau of Labor Statistics, supra note 95, at 72 tbl.10.
204. In 1994, Indiana's Gross State Product ("GSP") was $138.2 billion and Minnesota's was $124.6 billion ranking them fifteenth and twentieth in the nation respectively; but thirty-one percent of Indiana's GSP derived from manufacturing while only twenty percent of Minnesota's derived from manufacturing. Virginia Gray, The Socioeconomic and Political Context of States, in POLITICS IN THE AMERICAN STATES: A COMPARATIVE ANALYSIS, supra note 139, at 18tbl. 1-3.
205. See supra text accompanying note 25.
206. See supra text accompanying note 32.
207. Sciarra, supra note 17, at 101.
208. See Arthurs, supra note 13.
209. There are, for example, no published teaching materials in the United States dealing with comparative employment law.
210. Harry Arthurs, Landscape and Memory: Labour Law, Legal Pluralism and Globalism, in ADVANCING THEORY IN LABOUR LAW AND INDUSTRIAL RELATIONS IN A GLOBAL CONTEXT, supra note 2, at 21, 25 n.5; Lance Compa, 20 COMP. LAB. L. &POL'Y J. 125, 126 (1998) (boor review).
211. Harry Arthurs, Landscape and Memory: Labour Law, Legal Pluralism and Globalism, in ADVANCING THEORY IN LABOUR LAW AND INDUSTRIAL RELATIONS IN A GLOBAL CONTEXT, supra note 2, at 21, 25 n.5; Lance Compa, 20 COMP. LAB. L. &POL'Y J. 125, 126 (1998) (boor review).
212. Arthurs, supra note 187, at 25 n.5; Compa, supra note 187, at 126. See generally, e.g., OSTERMAN, supra note 170, at 20-68; STEPHEN A. HERZENBERG ETAL., NEW RULES FOR A NEW ECONOMY: EMPLOYMENT AND OPPORTUNITY IN POSTINDUSTRIAL AMERICA (1998).
213. Arthurs, supra note 187, at 25 n.5; Compa, supra note 187, at 126. See generally, e.g., OSTERMAN, supra note 170, at 20-68; STEPHEN A. HERZENBERG ETAL., NEW RULES FOR A NEW ECONOMY: EMPLOYMENT AND OPPORTUNITY IN POSTINDUSTRIAL AMERICA (1998).
214. Arthurs, supra note 187, at 25 n.5; Compa, supra note 187, at 126. See generally, e.g., OSTERMAN, supra note 170, at 20-68; STEPHEN A. HERZENBERG ETAL., NEW RULES FOR A NEW ECONOMY: EMPLOYMENT AND OPPORTUNITY IN POSTINDUSTRIAL AMERICA (1998).
215. Arthurs, supra note 187, at 25 n.5; Compa, supra note 187, at 126. See generally, e.g., OSTERMAN, supra note 170, at 20-68; STEPHEN A. HERZENBERG ETAL., NEW RULES FOR A NEW ECONOMY: EMPLOYMENT AND OPPORTUNITY IN POSTINDUSTRIAL AMERICA (1998).
216. RODGERS, supra note 42, at 473.