Papers by Samuel Estreicher
Fordham Law Review, Dec 1, 2017
The President can be viewed both as an agent and, particularly in the foreign relations area, as ... more The President can be viewed both as an agent and, particularly in the foreign relations area, as a co-principal with Congress. The Steel Seizure principle highlights the limits of the co-principal conception of the President's role in foreign affairs. Once Congress has developed a legislative framework for a subject matter, that framework occupies the field; the President's role becomes one of a responsible agent. In the Iran sanctions laws, Congress provided bounded waiver authority, acting responsibly to allow limited executive discretion rather than requiring the President to seek new legislation each time flexibility was needed. It did not, however, invite the President to override the sanctions framework altogether. An emergent literature in administrative law and U.S. foreign relations law has praised Congress's willingness to delegate waiver authority to the President for providing needed flexibility and other policy benefits. Yet that literature recognizes that the President's exercise of waiver authority must be carefully circumscribed to avoid enabling the President effectively to revise a statutory regime out of disagreement with Congress's policy choices. Such limiting principles are no less necessary in the foreign affairs context, where President Obama used purported waiver authority in the Iran sanctions statutes to pursue his own policy in defiance of Congress.
Thomson/West eBooks, 2004
This law school casebook is designed as a teaching vehicle for a one-semester treatment of the ba... more This law school casebook is designed as a teaching vehicle for a one-semester treatment of the basic law of the employment relationship. It offers a comprehensive approach to the regulation of employment decisions, tackling the subject from both practical and theoretical perspectives. IT also includes notes and questions throughout, highlighting insights from secondary literature and offering alternative analytical approaches and solutions to the principal readings. Its authors are presently engaged as reporters for the American Law Institute's Restatement of Employment Law.
No startling innovations. No radical changes in philosophy, coverage, or organization. Just thoro... more No startling innovations. No radical changes in philosophy, coverage, or organization. Just thorough updating, judicious pruning, and scholarly refinement here and there. That fairly well sums up my appraisal of the second edition of Professor Meltzer's labor law casebook. It undoubtedly will continue to hold a prominent position among the established casebooks in the field'-whose number just happens to match the number of major law text publishers. When the first edition was published in 1970, it received extensive reviewer comparison with the other three leading casebooks then available. 2 Since most of the similarities and differences noted then are still present in the second edition, further detailed analysis along those lines would be supererogatory. It suffices to say that the primary distinguishing feature of Meltzer's book-in keeping with "the Chicago approach"-continues to be his effort to integrate the practical and policy problems of labor law with the social sciences, particularly economics and psychology. This tone is set in the introductory chapters, which first review the historical and institutional framework of the labor movement and then describe the factual and economic contexts of contemporary regulation. Of necessity, the text and data on the factual background have been extensively revised to reflect recent trends in the composition of the labor force, unemployment, earnings, union membership, and work stoppages. The section on workers, unions, and the economy poses fundamental economic and social questions; it retains the classic but still controversial essay by Simons, "Some Reflections on Syndicalism," paired with the more balanced view t Professor of Law, University of Kansas.
Beyond Elite Law
Understanding the Question of When Does Representation Matter? While a great deal of literature a... more Understanding the Question of When Does Representation Matter? While a great deal of literature attempts to address the question of the importance of representation by lawyers in civil matters, the question framed that way masks the key Access to Justice concerns. Judges routinely report that they believe litigants are better off with lawyers, obtaining worse outcomes when they appear without counsel 2 ; many judges have further identified the burdens on the legal system that flow from the pro se litigants. 3 As a result, guidance for judges often counsels judges to warn litigants of the perils of self-representation. 4 Legal services lawyers staunchly believe that their clients are better off with representation. 5 Opposing lawyers not only report that the absence of representation can have an adverse impact on the represented parties, 6 but are generally prohibited by the ethical rules from giving advice to unrepresented parties, other than the advice to obtain counsel. 7
Page 1. Nash Estreicher 58 W orkplace p rivacy Proceedings of the New York University 58th Annual... more Page 1. Nash Estreicher 58 W orkplace p rivacy Proceedings of the New York University 58th Annual Conference on Labor Edited by Jonathan Remy Nash Series Editor Samuel Estreicher ISBN 9789041131638 Page 2. WORKPLACE ...
Estreicher & Noll's "Legislation and the Regulatory State" provides an accessib... more Estreicher & Noll's "Legislation and the Regulatory State" provides an accessible, up-to-date introduction to the institutions and procedures of the modern regulatory state. Designed to emphasize regulatory policy and the practical aspects of lawyering in the administrative state, the casebook explores Congress's reasons for regulating and the choices it makes when enacting legislation; the legislative process and tools of statutory interpretation; administrative agencies' position within the Constitution's system of separated powers; the Administrative Procedure Act; and judicial review of agency action. Updated and streamlined throughout, the second edition covers recent developments including the controversy over the Obama administration's immigration initiatives and the Trump administration's early executive actions. This paper contains the casebook's front matter, table of contents, and first chapter, "Why Regulate - And How?"
Michigan Law Review, May 1, 1989
Cambridge University Press eBooks, May 5, 2016
Kluwer Law International eBooks, 1999
Editor's Preface. Center for Labor and Employment Law at NYU School of Law. Part One: The Sub... more Editor's Preface. Center for Labor and Employment Law at NYU School of Law. Part One: The Substantive Law of Sexual Harassment in the Workplace -- at the `Cutting Edge'. A. `Mapping' Sexual Harassment. I. Relationship to Other Forms of Gender Discrimination. II. `Same Sex' Harassment and Sexual Favoritism. III. Sexual Harassment: The Labor Law Dimension. B. Employer Liability for Supervisor Conduct. C. Sexual Harassment Liability and the First Amendment. Part Two: The Litigation of Sexual Harassment Claims. A. Investigating a Sexual Harassment Claim: Legal and Ethical Issues. B. Rights of Accused Employees. C. Discovery, Evidence and Damage Issues. D. Use of Experts. Part Three: Employer Policies for Addressing Sexual Harassment and ADR Techniques. A. What Companies Are Doing on their Own. B. Uses of ADR.
On June 29, 2006, the Supreme Court by a 5-3 vote in Hamdan v. RumsfeM set aside President Bush's... more On June 29, 2006, the Supreme Court by a 5-3 vote in Hamdan v. RumsfeM set aside President Bush's November 13, 2001 order 2 providing for trial by military commission of non-citizens believed to be associated with the al Qaeda terrorist organization and apprehended during the conflict in Afghanistan and being held in Guantanamo Bay, Cuba. In an opinion authored by Justice Stevens, the Court held that President Bush lacked congressional authorization to provide for the trial of these Guantanamo detainees by military commission and that some of the procedures contemplated for these trials contravened the Uniform Code of Military Justice ("UCMJ"). 3 Heralded by many academic observers as a signal victory for the "Rule of Law" and human rights even in wartime, Hamdan requires the President to try the Guantanamo detainees by court-martial proceedings or to seek from Congress express authorization of the use of military commissions falling short of court-martial procedures. Now, less than one year after the Court's decision, Congress has provided such authorization in the Military Commissions Act of 2006 ("MCA"). 4 Before discussing the MCA, we begin with an examination of the limits of the Court's holding in Hamdan .
Social Science Research Network, May 27, 2020
The Restatement and Beyond, 2020
This chapter evaluates how implementing legislation has been a critical aspect of the U.S. treaty... more This chapter evaluates how implementing legislation has been a critical aspect of the U.S. treaty-making process since the very beginning of the Republic. Yet modern academic studies of U.S. foreign relations law too often neglect treaty-implementing statutes. While the treaty spells out the international obligations, the implementing law is the domestic face of the treaty, except in the increasingly rare instances where the treaty is considered self-executing. Ultimately, treaty-implementing legislation constitutes the operative law of the United States with respect to the treaty in question. The chapter then seeks to rekindle interest in this part of the process in the making of U.S. foreign relations law. A renewed appreciation by the courts and politically accountable breaches of, and focus on, the central role of the implementing statute in the case of non-self-executing treaties is likely to yield several significant benefits for the development of U.S. foreign relations law. ...
NYU Law & Economics Research Paper Series, 2018
The Supreme Court’s 5-4 ruling in Epic Systems v. Lewis (2018) that class action waivers in emplo... more The Supreme Court’s 5-4 ruling in Epic Systems v. Lewis (2018) that class action waivers in employment arbitration agreements do not violate the National Labor Relations Act’s protection of “concerted activity” by employees may prompt further adoption of class action waivers in arbitration agreements. We consider in this article the prospect of greater use of offensive non-mutual issue preclusion (sometimes termed collateral estoppel) in employment arbitration as an alternative means of minimizing duplicative or inconsistent treatment of employment claims in arbitration. Focusing on confidentiality provisions and preclusion waivers as two obstacles to greater use of estoppel principles in arbitration, we propose several modifications to the rules of the American Arbitration Association (“AAA”) that, if adopted, would promote a fairer process for both employers and their employees.<br><br>The doctrine of offensive non-mutual issue preclusion permits plaintiffs in appropri...
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Papers by Samuel Estreicher