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
Civil Procedure, Employment Discrimination Law, Employment Law, Labor Law, Sports 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 the definition of the employment relationship, age discrimination in employment, the scope of bargaining and bargaining responsibilities, consumer boycotts, antitrust and labor law, 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, the Cornell 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. His most recent major article compared aspects of British and American employment law.

Professor Harper served as a reporter for the American Law Institute’s 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. He is co-author of the leading teaching text for Sports Law courses. A life-long connoisseur of American and English literature, he also has an interest in law and literature.

Publications
  1. Michael Harper, "The Respondeat Superior Principle and Interest Alignment: Assigning Responsibility for Worker Statutory Benefits and Protections," in Sharing the Gains of the U.S. Global Economy: Proceedings of the New York University 70th Annual Conference on Labor , Charlotte Garden & Samuel Estreicher, eds., Carolina Academic Press (2021).
  2. Michael Harper, "Clarifying the Default for Anti-Discrimination Statutes," The Regulatory Review (July 27, 2020).
    Publisher
  3. Sports and the Law, Sixth Edition, Michael Harper, Paul Weiler, Gary Roberts, Roger Abrams, Stephen Ross, Jodi Balsam & William Berry, eds., Thomson/West (2019).
  4. Michael Harper, "Using the Anglo-American Respondeat Superior Principle to Assign Responsibility for Worker Statutory Benefits and Protections," 18 Washington University Global Studies Law Review 161 (2019).
    Publisher | Scholarly Commons | SSRN
  5. Michael Harper, "The Restatement of Employment Law’s “Independent Business Person-Entrepreneurial Control” Test for Employee Status," in Who is an Employee and Who is the Employer?: Proceedings of the New York University 68th Annual Conference on Labor , Samuel Estreicher & Kati Griffith, eds., LexisNexis (2017).
  6. Michael Harper, Samuel Estreicher & Elizabeth C. Tippett, Cases and Materials on Employment Discrimination and Employment Law: The Field as Practiced, 5th edition, West Academic Publishing (2016).
    Publisher
  7. Michael Harper, Samuel Estreicher & Elizabeth C. Tippett, Cases and Materials on Employment Discrimination, the Field as Practiced, 5th edition, West Academic Publishing (2016).
    Publisher
  8. Michael Harper, Samuel Estreicher & Elizabeth C. Tippett, Cases and Materials on Employment Law, the Field as Practiced, 5th edition, West Academic Publishing (2016).
    Publisher
  9. Michael Harper, "Confusion on the Court: Distinguishing Disparate Treatment from Disparate Impact in Young v. UPS and EEOC v. Abercrombie & Fitch, Inc.," 96 Boston University Law Review 543 (2016).
    SSRN | HeinOnline (BU) | HeinOnline | Publisher | Scholarly Commons
  10. Michael Harper, "A more fundamental distinction for the contemporary economy between employee and independent contractor status," 107 Amicus Curiae 1 (2016).
  11. Michael Harper, "Class-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 | Scholarly Commons
  12. 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 | Scholarly Commons
  13. 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
  14. Michael Harper, Samuel Estreicher & Kati Griffith, Labor Law: Cases, Materials, and Problems and 2015-16 Statutory Supplement, 8th ed., Wolters Kluwer Publishing (2015).
  15. Michael Harper, Samuel Estreicher, Matthew T. Bodie & Stewart J. Schwab, Restatement of the Law, Employment Law, American Law Institute (2015).
    Publisher | HeinOnline (BU) | HeinOnline
  16. 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 | Scholarly Commons
  17. 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
  18. 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).
  19. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination and Employment Law and 2012 Statutory Supplement, 4th ed., Thomson/West (2012).
  20. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination Law, 4th ed., Thomson/West (2012).
  21. Michael Harper, "First Amendment Protection for Union Appeals to Consumers," 27 Wisconsin Journal of Law, Gender & Society 176 (2012).
    SSRN | HeinOnline (BU) | HeinOnline | Scholarly Commons
  22. Michael Harper, "Reforming the Age Discrimination in Employment Act: Proposals and Prospects," 16 Employee Rights and Employment Policy Journal 13 (2012).
    SSRN | Scholarly Commons
  23. 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
  24. Michael Harper & Samuel Estreicher, 2011 Supplement to Cases and Materials on Employment Discrimination and Employment Law, 3d ed., Thomson/West (2011).
  25. 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 | Scholarly Commons
  26. 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).
  27. Michael Harper & Samuel Estreicher, Labor Law: Cases, Materials, and Problems and 2011-12 Statutory Supplement, 7th ed., Wolters Kluwer Publishing (2011).
  28. 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
  29. Michael Harper & Samuel Estreicher, 2010-11 Supplement to Cases and Materials on Employment Discrimination and Employment Law, 3rd ed., Thomson/West (2010).
  30. 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 | Scholarly Commons
  31. 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 | Scholarly Commons
  32. 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
  33. 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 | HeinOnline (BU) | HeinOnline | Scholarly Commons
  34. 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
  35. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination and Employment Law, 3d ed., Thomson/West (2008).
  36. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination Law and 2008 Statutory Supplement, 3d ed., Thomson/West (2008).
  37. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Law, 3d ed., Thomson/West (2008).
  38. 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
  39. Michael Harper, Samuel Estreicher & Joan Flynn, Labor Law: Cases, Materials and Problems and 2007-08 Statutory Supplement, 6th ed., Aspen (2007).
  40. Michael Harper & Joan Flynn, "Federal Common Lawmaking for the Modern Age," in Employment Discrimination Stories 225, Joel William Friedman, ed., Foundation Press (2006).
  41. Michael Harper, William R. Corbett & E. Dannin, "Bush Labor Board Decisions: Pendulum Shift of Permanent Changes?" 56 Labor Law Journal 212 (2005).
  42. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination and Employment Law, West Publishing (2004).
  43. Michael Harper & Samuel Estreicher, Employment Law, West Publishing (2004).
  44. Michael Harper, Samuel Estreicher & Joan Flynn, Labor Law: Cases, Materials and Problems and 2003 Statutory Supplement, 5th ed., Aspen Publishers (2003).
  45. Michael Harper, Cases and Materials on the Law Governing the Employment Relationship, West Group (2001).
  46. Michael Harper, "A Framework for the Rejuvenation of the American Labor Movement," 76 Indiana Law Journal 103 (2001).
    Westlaw | HeinOnline (BU) | HeinOnline
  47. 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).
  48. Michael Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination and Employment Law, West Publishing Company (2000).
  49. Michael Harper & Samuel Estreicher, Statutory Supplement to Cases and Materials on Employment Discrimination and Employment Law, West Publishing Company (2000).
  50. Michael Harper, "Employer Liability for Harassment Under Title VII: A Functional Rationale for Faragher and Ellerth," 36 San Diego Law Review 101 (1999).
    Westlaw | HeinOnline (BU) | HeinOnline
  51. 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).
  52. Michael Harper, "The Continuing Relevance of Section 8 (a) (2) to the Contemporary Workplace," 96 Michigan Law Review 2322 (1998).
    Westlaw | HeinOnline (BU) | HeinOnline
  53. Michael Harper, "Defining the Economic Relationship Appropriate for Collective Bargaining," 39 Boston College Law Review 329 (1998).
    Westlaw | HeinOnline (BU) | HeinOnline
  54. 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 | HeinOnline (BU) | HeinOnline
  55. 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 | HeinOnline (BU) | HeinOnline
  56. Michael Harper, "Comment on the Tort/Crime Distinction: A Generation Later," 76 Boston University Law Review 23 (1996).
    Westlaw | HeinOnline (BU) | HeinOnline
  57. 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).
  58. Michael Harper & Samuel Estreicher, Supplement to The Law Governing the Employment Relationship, 2d ed., West Publishing (1994).
  59. 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 | HeinOnline (BU) | HeinOnline
  60. Michael Harper & Samuel Estreicher, The Law Governing the Employment Relationship, 2d ed., West Publishing (1992).
  61. 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 | HeinOnline (BU) | HeinOnline
  62. Michael Harper & Samuel Estreicher, Supplement to The Law Governing the Employment Relationship, West Publishing (1991).
  63. Michael Harper & Samuel Estreicher, The Law Governing the Employment Relationship, West Publishing (1990).
  64. Michael Harper & Samuel Estreicher, Statutory Supplement to The Law Governing the Employment Relationship, West Publishing (1990).
  65. Michael Harper, "Reconciling Collective Bargaining with Employee Supervision of Management," 137 University of Pennsylvania Law Review 1 (1988).
    Westlaw | HeinOnline (BU) | HeinOnline
  66. 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).
  67. Michael Harper, "The Case for Limiting Judicial Review of Labor Board Certification Decisions," 55 George Washington Law Review 262 (1987).
    Westlaw | HeinOnline (BU) | HeinOnline
  68. Michael Harper & Ira C. Lupu, "Fair Representation as Equal Protection," 98 Harvard Law Review 1211 (1985).
    Westlaw | HeinOnline (BU) | HeinOnline
  69. 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 | HeinOnline (BU) | HeinOnline
  70. 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
  71. 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 | HeinOnline (BU) | HeinOnline
  72. Michael Harper, "Union Waiver of Employee Rights Under the National Labor Relations Act," 4 Industrial Relations Law Journal 335 (1981).
    HeinOnline (BU) | HeinOnline
  73. 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
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