Tag Archives: administrative law
Is Actual Control Required for an Employer-Employee Relationship? The Case Law Suggests Otherwise

NYU law professor Samuel Estreicher and 3L Sara Spaur argue that the premise of a recent National Labor Relations Board proposed rulemaking—that an employer must exercise direct and immediate control over employees to be a joint employer under the National Labor Relations Act—is not supported by the common law, as is required. Estreicher and Spaur explain that the Restatements of Agency and four key cases support the opposite conclusion, that the test for employer status is not actual control, but simply the right to control employees.

The Fifth Circuit Pushes Pre-Enforcement Review Too Far in Barring the EEOC from Publishing Guidance on Title VII’s Regulation of Ex-Convict Employment Bars

NYU law professor Samuel Estreicher comments on a recent decision by the U.S. Court of Appeals for the Fifth Circuit, in which that court enjoined the Equal Employment Opportunity Commission (EEOC) from publishing its guidance on the applicability of Title VII’s disparate impact analysis to employers’ use of criminal records in hiring decisions. Estreicher explains why the federal appeals court was incorrect in holding that the EEOC violated the notice-and-comment procedures for rulemaking under the Administrative Procedure Act.

The Department of Education’s Title IX Power Grab

Cornell law professor Michael C. Dorf discusses the Department of Education’s recent Notice of Proposed Rulemaking rules requiring due process protections for those accused of sexual assault or harassment in Title IX cases. Dorf provides a history of Title IX, explaining how the Obama administration issued guidance and instituted reforms to how institutions should approach addressing allegations of such conduct. He acknowledges the Department of Education's shift in policy under the Trump administration that led to its proposed rulemaking issuance, and argues that the Department only has the authority to permit these additional due process protections in most instances, rather than outright require institutions to adhere to them.

Meet our Columnists
Vikram David Amar
Vikram David Amar

Vikram David Amar is the Dean and Iwan Foundation Professor of Law at the University of Illinois... more

Neil H. Buchanan
Neil H. Buchanan

Neil H. Buchanan, an economist and legal scholar, holds the James J. Freeland Eminent Scholar... more

Sherry F. Colb
Sherry F. Colb

Sherry F. Colb is the C.S. Wong Professor of Law at Cornell University. Colb teaches courses in... more

John Dean
John Dean

John Dean served as Counsel to the President of the United States from July 1970 to April 1973.... more

Michael C. Dorf
Michael C. Dorf

Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University Law School. He... more

Joanna L. Grossman
Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School... more

Marci A. Hamilton
Marci A. Hamilton

MARCI A. HAMILTON is the Robert A. Fox Leadership Program Professor of Practice, and Fox Family... more

Joseph Margulies
Joseph Margulies

Mr. Margulies is a Professor of Law and Government at Cornell University. He was Counsel of... more

Lesley Wexler
Lesley Wexler

Lesley Wexler is a Professor of Law at the University of Illinois College of Law. Immediately... more