The Supreme Court’s Open-Ended Protection Against Third-Party Retaliation

Jessica K. Fink

Volume 63

In Thompson v. North American Stainless, LP, the Supreme Court contradicted the federal appellate courts and unanimously held that Title VII prohibits employers from engaging in third-party retaliation. This Essay contends that because the Court failed to establish any meaningful boundaries for the scope of third-party retaliation doctrine, the doctrine’s benefits may not outweigh its potential costs.

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Excluding Unemployed Workers from Job Opportunities: Why Disparate Impact Protections Still Matter

Helen Norton

Volume 63

Despite our tough economic climate, many employers exclude currently unemployed workers from consideration for a wide variety of jobs. Not only does this practice seem cruel and unwise, but, as this Essay explains, under certain circumstances the practice may violate federal antidiscrimination law.

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Right-Sizing Bar Association Governance

Daniel R. Suhr

Volume 63

This Essay evaluates bar association governance nationally in light of best practices for corporate and nonprofit governance. Governance experts agree that boards should be small. These scholarly recommendations are confirmed by the experiences of many large nonprofit organizations and for-profit corporations. They are shared by several publications from different sections and committees of the ABA and American Law Institute. Yet these recommendations remain unimplemented in the vast majority of bar associations. This Essay contends that California should pursue a smaller governing board, and other bar associations, particularly those with significant staff and budgets, should undertake similar self-studies.

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Sustainable Capitalism: Revelations from the Japanese Model

Joel Slawotsky

Volume 63

This Essay utilizes the Japanese governance model as it provides a useful comparative illustration. Unlike the United States, the Japanese model engages in a stakeholder value system wherein the interest of shareholder profits lies at the bottom. As will be seen below, while the United States has its share of corporate scandal, such corporate abuse is not solely relegated to the United States but exists in Japan as well. Moreover, notwithstanding claims that a shareholder model results in income inequality, according to the Organisation for Economic Co-operation and Development, while the United States has the fifth highest household disposable income gap, Japan is close behind in sixth place. In addition, despite the global economic slowdown and market volatility, the U.S. stock indexes are just slightly below record highs, while in contrast, Japan’s major index is down about 80% since peaking in 1989. Finally, a review of macroeconomic statistics reveals that in contrast to an ever growing—albeit at a slow pace—U.S. economy, Japan’s economy has been shrinking, and its overall economic standing has slipped.

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