Michael C. Harper

Professor of Law

Barreca Labor Relations Scholar

AB magna cum laude, Harvard University
JD magna cum laude, Harvard University

Areas of Interest
Administrative Law, Civil Procedure, Employment Law
Contact
Biography

Michael Harper is a leading authority in the areas of labor law, employment law, and employment discrimination law. Professor Harper has been engaged by the study of these fields since joining the faculty in 1978. He stresses that the law governing employment is critical to the organization of society and the setting of social priorities. He notes that students are both motivated by the human narratives in litigated employment cases and also challenged by the complex laws and regulations governing the field.

Professor Harper has co-authored several major casebooks, both in Employment Discrimination and Employment Law and in Labor Law. Professor Harper is the author of many law review articles and book chapters on a broad variety of labor and employment law topics, including age discrimination in employment, the scope of bargaining, consumer boycotts, and the allocation of decision making authority between federal and state courts and between the Labor Board and private arbitrators. He has published in a wide array of journals, including the Harvard Law Review, the Yale Law Journal, the Virginia Law Review, the Pennsylvania Law Review, and the Michigan Law Review. One of his major recent articles, “Judicial Control of the National Labor Relations Board’s Lawmaking” was published in the Boston University Law Review. His current developing research interests include aggregate employment discrimination litigation, employment regulation and collective bargaining in a world of franchising and subcontracting, and comparative employment and labor law.

Professor Harper served as a reporter for the American Law Institute’s recently completed Restatement of Employment Law Third. He was the primary author of chapters that clarify the boundaries of the employment relationship regulated by federal and state law, specify principles of employer liability for the actions or omissions of their agents, and articulate standards for a range of employment torts. Early in his career, Professor Harper clerked for Judge J. Skelly Wright of the US Court of Appeals for the District of Columbia Circuit and served as staff attorney and director of the Student Internship Program at the Center for Law and Social Policy in Washington, DC.

In addition to teaching classes in labor law, employment law and civil procedure, Professor Harper offers a popular seminar examining law and sports and is now teaching civil procedure. A life-long connoisseur of American and English literature, he also has an interest in law and literature.

Publications
  1. Michael Harper, "Distinguishing Disparate Treatment from Disparate Impact; Confusion on the Court," 96 Boston University Law Review (forthcoming).
    SSRN
  2. Michael Harper, "Classed-Based Adjudication of Title VII Claims in the Age of the Roberts Court," in Symposium The Civil Rights Act of 1964 at 50: Past, Present, and Future, 95 Boston University Law Review 1099 (2015).
    SSRN | Publisher
  3. Michael Harper, "Fashioning a General Common Law for Employment in an Age of Statutes," in Symposium Assessing the Restatement of Employment Law, 100 Cornell Law Review 1281 (2014-15).
    HeinOnline (BU) | HeinOnline | SSRN
  4. Michael Harper, Samuel Estreicher, Matthew T. Bodie & Stewart J. Schwab, "Foreword: The Restatement of Employment Law Project," in Symposium Assessing the Restatement of Employment Law, 100 Cornell Law Review 1245 (2014-15).
    HeinOnline (BU) | HeinOnline
  5. Michael Harper, Samuel Estreicher & Kati Griffith, Labor Law: Cases, Materials, and Problems and 2015-16 Statutory Supplement, 8th ed., Wolters Kluwer Publishing (2015).
    Publisher
  6. Michael Harper, Samuel Estreicher, Matthew T. Bodie & Stewart J. Schwab, Restatement of the Law, Employment Law, American Law Institute (2015).
    Publisher | HeinOnline (BU) | HeinOnline
  7. Michael Harper, Samuel Estreicher, Matthew T. Bodie & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Proposed Final Draft, American Law Institute (May 21, 2014).
    HeinOnline (BU) | HeinOnline | Publisher
  8. Michael Harper, Samuel Estreicher, Matthew T. Bodie & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No.6, American Law Institute (Mar 30, 2013).
    Publisher | HeinOnline (BU) | HeinOnline
  9. Michael Harper, "Retaliatory Capital Allocation or Defensive Dual Sourcing: the Boeing Dreamliner Case," in Proceedings of the New York University Annual Conference of Labor Chapter 6, Matthew Bender (2013).
  10. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination and Employment Law and 2012 Statutory Supplement, 4th ed., Thomson/West (2012).
    Publisher
  11. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination Law, 4th ed., Thomson/West (2012).
    Publisher
  12. Michael Harper, "First Amendment Protection for Union Appeals to Consumers," 27 Wisconsin Journal of Law, Gender & Society 176 (2012).
    SSRN | HeinOnline (BU) | HeinOnline
  13. Michael Harper, "Reforming the Age Discrimination in Employment Act: Proposals and Prospects," 16 Employee Rights and Employment Policy Journal 13 (2012).
    SSRN
  14. Michael Harper, Samuel Estreicher, Matthew T. Bodie & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No.5, American Law Institute (Mar 30, 2012).
    Publisher | HeinOnline (BU) | HeinOnline
  15. Michael Harper & Samuel Estreicher, 2011 Supplement to Cases and Materials on Employment Discrimination and Employment Law, 3d ed., Thomson/West (2011).
  16. Michael Harper, "Eliminating the Need for Caps on Title VII Damage Awards: The Shield of Kolstad v. American Dental Association," in Symposium on the Legislative Legacy of Senator Edward Kennedy, 14 NYU Journal of Legislation and Public Policy (2011).
    SSRN
  17. Michael Harper, "A Gap in the Agenda; Enhancing the Regulation of Age Discrimination in Employment," 62 Proceedings of New York University Annual Conference of Labor (2011). Reprinted in Age and Equality Law 339, Michael Selmi ed., Ashgate Publishing Ltd.(2013).
  18. Michael Harper & Samuel Estreicher, Labor Law: Cases, Materials, and Problems and 2011-12 Statutory Supplement, 7th ed., Wolters Kluwer Publishing (2011).
  19. Michael Harper, Samuel Estreicher, Matthew T. Bodie & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No.4 (revised), American Law Institute (Jul 11, 2011).
    Publisher | HeinOnline (BU) | HeinOnline
  20. Michael Harper & Samuel Estreicher, 2010-11 Supplement to Cases and Materials on Employment Discrimination and Employment Law, 3rd ed., Thomson/West (2010).
  21. Michael Harper, "The Causation Standard in Federal Employment Law: Gross v. FBL Financial Services, Inc., and the Unfulfilled Promise of the Civil Rights Act of 1991," 58 Buffalo Law Review 69 (2010).
    Westlaw | SSRN | Lexis Advance
  22. Michael Harper, "A New Board Policy on Deferral to Arbitration; Acknowledging and Delimiting Union Waiver of Employee Statutory Rights," in Symposium Whither the Board? The National Labor Relations Board at 75, 5 Florida International Law Review (2010).
    SSRN
  23. Michael Harper, Samuel Estreicher, Matthew T. Bodie & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No.3, American Law Institute (Apr 08, 2010).
    Publisher | HeinOnline (BU) | HeinOnline
  24. Michael Harper, "Judicial Control of the National Labor Relations Board's Lawmaking in the Age of Chevron and Brand X," 89 Boston University Law Review 189 (2009).
    Westlaw | SSRN | Lexis Advance | HeinOnline (BU) | HeinOnline
  25. Michael Harper, Samuel Estreicher, Matthew T. Bodie & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No.2 (revised), American Law Institute (Sep 30, 2009).
    Publisher | HeinOnline (BU) | HeinOnline
  26. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination and Employment Law, 3d ed., Thomson/West (2008).
  27. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination Law and 2008 Statutory Supplement, 3d ed., Thomson/West (2008).
  28. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Law, 3d ed., Thomson/West (2008).
  29. Michael Harper, Samuel Estreicher & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No.1, American Law Institute (Apr 7, 2008).
    HeinOnline (BU) | HeinOnline
  30. Michael Harper, Samuel Estreicher & Joan Flynn, Labor Law: Cases, Materials and Problems and 2007-08 Statutory Supplement, 6th ed., Aspen (2007).
  31. Michael Harper & Joan Flynn, "Federal Common Lawmaking for the Modern Age," in Employment Discrimination Stories 225, Joel William Friedman, ed., Foundation Press (2006).
  32. Michael Harper, William R. Corbett & E. Dannin, "Bush Labor Board Decisions: Pendulum Shift of Permanent Changes?" 56 Labor Law Journal 212 (2005).
  33. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination and Employment Law, West Publishing (2004).
  34. Michael Harper & Samuel Estreicher, Employment Law, West Publishing (2004).
  35. Michael Harper, Samuel Estreicher & Joan Flynn, Labor Law: Cases, Materials and Problems and 2003 Statutory Supplement, 5th ed., Aspen Publishers (2003).
  36. Michael Harper, Cases and Materials on the Law Governing the Employment Relationship, West Group (2001).
  37. Michael Harper, "A Framework for the Rejuvenation of the American Labor Movement," 76 Indiana Law Journal 103 (2001).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  38. Michael Harper, "Answering the Title VII Agency Question: A Policy Basis for Faragher and Ellerth," in Proceedings of the New York University 51st Annual Conference on Labor Chapter 10, New York University Press (2000).
  39. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination and Employment Law, West Publishing Company (2000).
  40. Michael Harper & Samuel Estreicher, Statutory Supplement to Cases and Materials on Employment Discrimination and Employment Law, West Publishing Company (2000).
  41. Michael Harper, "Employer Liability for Harassment Under Title VII: A Functional Rationale for Faragher and Ellerth," 36 San Diego Law Review 101 (1999).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  42. Michael Harper, "The Provision of Capital and Collective Bargaining Responsibilities," in Proceedings of New York University 50th Annual Conference on Labor Chapter 4, New York University Press (1999).
  43. Michael Harper, "The Continuing Relevance of Section 8 (a) (2) to the Contemporary Workplace," 96 Michigan Law Review 2322 (1998).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  44. Michael Harper, "Defining the Economic Relationship Appropriate for Collective Bargaining," 39 Boston College Law Review 329 (1998).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  45. Michael Harper, "ADEA Doctrinal Impediments to the Fulfillment of the Wirtz Report Agenda," in Symposium on the Aging American Workforce: Thirty Years Under the Age Discrimination in Employment Act, 31 University of Richmond Law Review 757 (1997).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  46. Michael Harper, "Multiemployer Bargaining, Antitrust Law, and Team Sports: The Contingent Choice of a Broad Exemption," 38 William and Mary Law Review 1663 (1997).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  47. Michael Harper, "Comment on the Tort/Crime Distinction: A Generation Later," 76 Boston University Law Review 23 (1996).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  48. Michael Harper & Samuel Estreicher, Labor Law: Cases, Materials, and Problems and 1996 Statutory Supplement and Teacher's Manual, 4th ed., Little, Brown and Company (1996).
  49. Michael Harper & Samuel Estreicher, Supplement to The Law Governing the Employment Relationship, 2d ed., West Publishing (1994).
  50. Michael Harper, "Age-Based Incentives, Coercion, and the Prospective Waiver of ADEA Rights: The Failure of the Older Workers' Benefit Protection Act," 79 Virginia Law Review 1271 (1993).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  51. Michael Harper & Samuel Estreicher, The Law Governing the Employment Relationship, 2d ed., West Publishing (1992).
  52. Michael Harper, "Limiting Section 301 Preemption: Three Cheers for the Trilogy, Only One for Lingle and Lueck," in Symposium on Labor Arbitration Thirty Years after the Steelworkers Trilogy, 66 Chicago-Kent Law Review 685 (1991).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  53. Michael Harper & Samuel Estreicher, Supplement to The Law Governing the Employment Relationship, West Publishing (1991).
  54. Michael Harper & Samuel Estreicher, The Law Governing the Employment Relationship, West Publishing (1990).
  55. Michael Harper & Samuel Estreicher, Statutory Supplement to The Law Governing the Employment Relationship, West Publishing (1990).
  56. Michael Harper, "Reconciling Collective Bargaining with Employee Supervision of Management," 137 University of Pennsylvania Law Review 1 (1988).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  57. Michael Harper, "The Scope of the Duty to Bargain Concerning Business Transformations," in Labor Law and Business Change: Theoretical and Transactional Perspectives 25, Daniel G. Collins & Samuel Estreicher, eds., Greenwood Press (1988).
  58. Michael Harper, "The Case for Limiting Judicial Review of Labor Board Certification Decisions," 55 George Washington Law Review 262 (1987).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  59. Michael Harper & Ira C. Lupu, "Fair Representation as Equal Protection," 98 Harvard Law Review 1211 (1985).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  60. Michael Harper, "The Consumer's Emerging Right to Boycott: NAACP v. Claiborne Hardware and its Implications for American Labor Law," 93 Yale Law Journal 409 (1984).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  61. Michael Harper, "Exercise of Executive Discretion: A Study of a Regional Office of the Department of Labor," 34 Administrative Law Review 559 (1982).
    HeinOnline (BU) | HeinOnline
  62. Michael Harper, "Leveling the Road from Borg-Warner to First National Maintenance: The Scope of Mandatory Bargaining," 68 Virginia Law Review 1447 (1982). Reprinted in Corporate Counsel's Annual 679 (1982).
    Westlaw | Lexis Advance | HeinOnline (BU) | HeinOnline
  63. Michael Harper, "Union Waiver of Employee Rights Under the National Labor Relations Act," 4 Industrial Relations Law Journal 335 (1981).
    HeinOnline (BU) | HeinOnline
  64. Michael Harper, "Union Waiver of NLRA Rights-- A Fresh Approach to Board Deferral to Arbitration," 4 Industrial Relations Law Journal 601 (1981).
    HeinOnline (BU) | HeinOnline
Courses

4 credits

The course focuses on race, sex, age, and disability employment discrimination prohibitions. Affirmative action, religious discrimination, constitutional protections of public sector workers, anti retaliation and whistleblower laws, and common law protection against arbitrary dismissals are also covered. Important procedural issues, including arbitration, are highlighted.

SPRG 2016: LAW JD 834 A1 , Jan 11th to Apr 20th 2016
Days Start End Credits Instructors Bldg
Mon,Wed 2:10 pm 4:10 pm 4 Michael C. Harper LAW
SPRG 2017: LAW JD 834 A1 , Jan 17th to Apr 25th 2017
Days Start End Credits Instructors Bldg
Tue,Thu 10:40 am 12:40 pm 4 Maria O’Brien Hylton

3 credits

Survey of modern labor management and union relations law in the private sector. Organization of workers and the representation process; collective bargaining; unfair practices, employer and union; negotiation and enforcement of collective agreement, including arbitration; regulation of strikes and lockouts. Administrative law and federalism principles will be treated. Employment discrimination and other individual employee protection laws are not treated in this course.

SPRG 2016: LAW JD 851 A1 , Jan 12th to Apr 19th 2016
Days Start End Credits Instructors Bldg
Tue,Thu 2:15 pm 3:40 pm 3 Michael C. Harper LAW

3 credits

This seminar will survey a range of legal issues presented by sports in America. There are no pre-requisites. However, students should be prepared to learn and apply basic principles of antitrust law and labor law. Intellectual property law, constitutional law, administrative law, anti-discrimination law, contract law and tort law also will be applied. Topics will include the regulation of the professional sports labor market. The course also will treat the regulation of agent representation of athletes, the regulation of sports franchises and sports leagues, and the regulation of intercollegiate sports, with special attention to the NCAA. Grades will be based on client-directed writing and on oral class participation, including an advocacy presentation. Some students may satisfy the Upperclass Writing Requirement. There is no examination. GRADING NOTICE: This course does not offer the CR/NC/H option. OFFERING PATTERN: This class not offered every year. Students are advised to take this into account when planning their long-term schedule. ** A student who fails to attend the initial meeting of a seminar, or to obtain permission to be absent from either the instructor or the Registrar, will be administratively dropped from the seminar. Students who wait list for a seminar are required to attend the first seminar meeting to be considered for enrollment.

FALL 2016: LAW JD 886 A1 , Sep 7th to Dec 7th 2016
Days Start End Credits Instructors Bldg
Wed 2:10 pm 4:10 pm 3 Michael C. Harper
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