Michael Harper

Michael C. Harper

Professor of Law

Barreca Labor Relations Scholar

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


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

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  • Michael C. Harper, Samuel Estreicher & Zachary Fasman, Cases and Materials on Employment Discrimination and Employment Law, the Field as Practiced, 6th ed. (2022)
    Scholarly Commons
  • Michael C. Harper, Escaping the Allure of Joint Employment: Using Fault-Based Principles to Impose Liability for the Denial of Employee Statutory Rights 36 ABA Journal of Labor and Employment Law (2022)
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  • Michael C. Harper, Samuel Estreicher & Kati Griffith, Labor Law: Cases and Materials, 9th ed. (2021)
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  • Michael C. 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,2021)
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  • Michael C. Harper, Samuel Estreicher & Kati Griffith, Labor Law: Selected Statutes, Forms, and Agreements, 2021 (2021)
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  • Michael C. Harper, Clarifying the Default for Anti-Discrimination Statutes The Regulatory Review (2020)
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  • Michael C. Harper, Using the Anglo-American Respondeat Superior Principle to Assign Responsibility for Worker Statutory Benefits and Protections 18 Washington University Global Studies Law Review (2019)
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  • Paul C. Weiler, Gary R. Roberts, Roger I. Adams, Michael C. Harper, Jodi S. Balsam & William W. Berry III, Sports and the Law, 6th ed. (2019)
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  • Michael C. 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,2017)
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  • Michael C. Harper, Samuel Estreicher & Elizabeth Tippett, Cases and Materials on Employment Discrimination: The Field as Practiced, 5th ed. (2016)
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  • Michael C. Harper, Samuel Estreicher & Elizabeth Tippett, Cases and Materials on Employment Discrimination and Employment Law: The Field as Practiced, 5th ed. (2016)
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  • Michael C. Harper, A more fundamental distinction for the contemporary economy between employee and independent contractor status 107 Amicus Curiae (2016)
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  • Samuel Estreicher, Michael C. Harper & Elizabeth Tippett, Cases and Materials on Employment Law, the Field as Practiced, 5th ed. (2016)
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  • Michael C. Harper, Distinguishing Disparate Treatment from Disparate Impact; Confusion on the Court No. 15-52 Boston University School of Law, Public Law Research Paper (2015)
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  • Michael C. Harper, Samuel Estreicher, Matthew T. Bodie & Stewart J. Schwab, Foreword: The Restatement of Employment Law Project 100 Cornell Law Review (2015)
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  • Michael C. Harper, Class-Based Adjudication of Title VII Claims in the Age of the Roberts Court No. 15-09 Boston University School of Law, Public Law Research Paper (2015)
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  • Samuel Estreicher, Matthew T. Bodie, Michael C. Harper & Stewart J. Schwab, Restatement of the Law Third, Employment Law (2015)
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  • Michael C. Harper, Samuel Estreicher & Kati Griffith, Labor Law: Cases, Materials, and Problems, 8th ed. (2015)
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  • Michael C. Harper, Fashioning a General Common Law for Employment in an Age of Statutes No. 14-64 Boston University School of Law, Public Law Research Paper (2014)
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  • Michael C. Harper, Samuel Estreicher, Matthew T. Bodie & Stewart J. Schwab, Restatement of the Law, Employment Law (Proposed Final Draft) (2014)
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  • Samuel Estreicher, Matthew T. Bodie, Michael C. Harper & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No. 6 (2013)
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  • Michael C. Harper, Retaliatory Capital Allocation or Defensive Dual Sourcing: the Boeing Dreamliner Case, in Proceedings of the New York University Annual Conference of Labor (2013)
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  • Michael C. Harper, First Amendment Protection for Union Appeals to Consumers 27 Wisconsin Journal of Law, Gender & Society (2012)
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  • Samuel Estreicher, Matthew T. Bodie, Michael C. Harper & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No. 5 (2012)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Discrimination Law, 4th ed. (2012)
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  • Michael C. Harper, Reforming the Age Discrimination in Employment Act: Proposals and Prospects 16 Employee Rights and Employment Policy Journal (2012)
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  • Michael C. Harper & Samuel Estreicher, Cases and Materials on Employment Discrimination and Employment Law, 4th ed. (2012)
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  • Samuel Estreicher, Matthew T. Bodie, Michael C. Harper & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No. 4 (2011)
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  • Michael C. Harper & Samuel Estreicher, Labor Law: Cases, Materials, and Problems, 7th ed. (2011)
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  • Samuel Estreicher & Michael C. Harper, 2010-11 Supplement to Cases and Materials on Employment Discrimination and Employment Law, 3rd ed. (2011)
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  • Michael C. Harper, A Gap in the Agenda: Enhancing the Regulation of Age Discrimination in Employment, in Proceedings of New York University Annual Conference of Labor (2011)
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  • Samuel Estreicher & Michael C. Harper, 2011 Supplement to Cases and Materials on Employment Discrimination and Employment Law (2011)
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  • Michael C. Harper, Eliminating the Need for Caps on Title VII Damage Awards: The Shield of Kolstad v. American Dental Association 14 New York University Journal of Legislation and Public Policy (2011)
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  • Samuel Estreicher, Matthew T. Bodie, Michael C. Harper & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No. 3 (2010)
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  • Michael C. Harper, A New Board Policy on Deferral to Arbitration: Acknowledging and Delimiting Union Waiver of Employee Statutory Rights 5 FIU Law Review (2010)
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  • Michael C. 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 (2010)
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  • Samuel Estreicher, Matthew T. Bodie, Michael C. Harper, Andrew P. Morriss & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No. 2 (2009)
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  • Michael C. Harper, Judicial Control of the National Labor Relations Board's Lawmaking in the Age of Chevron and Brand X 89 Boston University Law Review (2009)
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  • Samuel Estreicher, Michael C. Harper & Stewart J. Schwab, Restatement of the Law Third, Employment Law, Tentative Draft No. 1 (2008)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Discrimination Law, 3rd ed. (2008)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Law, 3rd ed. (2008)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Discrimination and Employment Law (2008)
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  • Michael C. Harper, Samuel Estreicher & Joan Flynn, Labor Law: Cases, Materials, and Problems, 6th ed. (2007)
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  • Michael C. Harper & Joan Flynn, Federal Common Lawmaking for the Modern Age, in Employment Discrimination Stories (Joel William Friedman,2006)
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  • Michael C. Harper, William R. Corbett & E. Dannin, Bush Labor Board Decisions: Pendulum Shift of Permanent Changes? 56 Labor Law Journal (2005)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Law (2004)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Discrimination Law (2004)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Discrimination and Employment Law, 2nd ed. (2004)
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  • Michael C. Harper, Samuel Estreicher & Joan Flynn, Labor Law: Cases, Materials, and Problems, 5th ed. (2003)
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  • Michael C. Harper, A Framework for the Rejuvenation of the American Labor Movement 76 Indiana Law Journal (2001)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on Employment Discrimination and Employment Law (2000)
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  • Samuel Estreicher & Michael C. Harper, Statutory Supplement to Cases and Materials on Employment Discrimination and Employment Law (2000)
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  • Michael C. 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 (2000)
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  • Michael C. Harper, Employer Liability for Harassment Under Title VII: A Functional Rationale for Faragher and Ellerth 36 San Diego Law Review (1999)
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  • Michael C. Harper, The Provision of Capital and Collective Bargaining Responsibilities, in Proceedings of New York University 50th Annual Conference on Labor (1999)
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  • Michael C. Harper, The Continuing Relevance of Section 8 (a) (2) to the Contemporary Workplace 96 Michigan Law Review (1998)
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  • Michael C. Harper, Defining the Economic Relationship Appropriate for Collective Bargaining 39 Boston College Law Review (1998)
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  • Michael C. Harper, Multiemployer Bargaining, Antitrust Law, and Team Sports: The Contingent Choice of a Broad Exemption 38 William & Mary Law Review (1997)
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  • Michael C. Harper, ADEA Doctrinal Impediments to the Fulfillment of the Wirtz Report Agenda 31 University of Richmond Law Review (1997)
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  • Michael C. Harper, Comment on the Tort/Crime Distinction: A Generation Later 76 Boston University Law Review (1996)
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  • Michael C. Harper & Samuel Estreicher, Labor Law: Cases, Materials, and Problems, 4th ed. (1996)
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  • Samuel Estreicher & Michael C. Harper, 1994 Supplement to Cases and Materials on the Law Governing the Employment Relationship, 2nd ed. (1994)
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  • Michael C. 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 (1993)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on the Law Governing the Employment Relationship, 2nd ed. (1992)
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  • Samuel Estreicher & Michael C. Harper, 1991 Supplement to Cases and Materials on the Law Governing the Employment Relationship (1991)
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  • Michael C. Harper, Limiting Section 301 Preemption: Three Cheers for the Trilogy, Only One for Lingle and Lueck 66 Chicago-Kent Law Review (1990)
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  • Samuel Estreicher & Michael C. Harper, Cases and Materials on the Law Governing the Employment Relationship (1990)
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  • Samuel Estreicher & Michael C. Harper, Statutory Supplement to Cases and Materials on the Law Governing the Employment Relationship (1990)
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  • Michael C. Harper, Reconciling Collective Bargaining with Employee Supervision of Management 137 University of Pennsylvania Law Review (1988)
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  • Michael C. Harper, The Scope of the Duty to Bargain Concerning Business Transformations, in Labor Law and Business Change: Theoretical and Transactional Perspectives (Daniel G. Collins & Samuel Estreicher,1988)
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  • Michael C. Harper, The Case for Limiting Judicial Review of Labor Board Certification Decisions 55 George Washington Law Review (1987)
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  • Michael C. Harper & Ira C. Lupu, Fair Representation as Equal Protection 98 Harvard Law Review (1985)
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  • Michael C. Harper, The Consumer's Emerging Right to Boycott: NAACP v. Claiborne Hardware and its Implications for American Labor Law 93 Yale Law Journal (1984)
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  • Michael C. Harper, Leveling the Road from Borg-Warner to First National Maintenance: The Scope of Mandatory Bargaining 68 Virginia Law Review (1982)
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  • Michael C. Harper, Exercise of Executive Discretion: A Study of a Regional Office of the Department of Labor 34 Administrative Law Review (1982)
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  • Michael C. Harper, Union Waiver of Employee Rights Under the National Labor Relations Act 4 Industrial Relations Law Journal (1981)
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  • Michael C. Harper, Union Waiver of NLRA Rights: Part 2-- A Fresh Approach to Board Deferral to Arbitration 4 Industrial Relations Law Journal (1981)
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In the Media

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  • BU News Service September 28, 2022

    Low Stipends, Labor Rights and a New Hope: Into the Formation of the BU Graduate Workers Union

    Michael C. Harper is quoted.
    read more

  • Yahoo! Finance February 14, 2022

    Why Tesla Could End Up Paying a ‘Huge Settlement’ in Racial Bias Case

    Michael Harper is quoted.
    read more

  • NBC 4 News September 11, 2021

    Biden’s Vaccine Rules to Set Off Barrage of Legal Challenges

    Michael Harper is quoted.
    read more

  • Poynter August 6, 2021

    Getting Fired Over a Vaccine Mandate May Cost You Unemployment Aid

    Michael Harper is quoted.
    read more

  • Law360 June 25, 2021

    5 Ways House Age Bias Bill May Change Discrimination Cases

    Michael Harper is quoted.
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  • Bloomberg Law June 14, 2021

    Vaccine Incentives Guidance From EEOC Leaves Employers Guessing

    Michael Harper is quoted.
    read more

  • Law 360 April 21, 2021

    McDonald’s Anti-Harassment Push Brings Joint Employer Risk

    Michael Harper is quoted.
    read more

  • Washington Post August 27, 2020

    How College Football Players Discovered Their Power and Why It’s Just the Beginning

    Michael Harper quoted.
    read more

  • April 16, 2020

    A Legal Guide for Employers After Virus-Driven Union Layoffs

    Michael Harper quoted in <em>Bloomberg Law</em>.
    read more

  • October 9, 2019

    LGBTQ Workplace Discrimination Case Comes to the Supreme Court

    Michael C. Harper quoted in <em>WBUR<em/>.
    read more

  • October 8, 2019

    The LGBTQ-Rights Movement Is Changing, and so Is the Supreme Court

    Michael C. Harper quoted in <em>The Atlantic<em/>.
    read more

  • August 8, 2019

    Trump-Appointed Labor Board’s Impatient Agenda to Reformulate Labor Law

    Michael C. Harper authored a piece for <em>Harvard Law Review Blog</em>.
    read more

  • May 6, 2019

    A Weakening of Overtime Regulation Reform

    Michael C. Harper authored a piece for <em>Harvard Law Review Blog</em>.
    read more

  • March 18, 2019

    ‘This could ruin us’: A class-action suit imperils California freelancers

    Michael Harper quoted in <em>Columbia Journalism Review</em>.
    read more

  • October 4, 2018

    Joint Employment’s Test’s Bark May be Worse Than Its Bite

    Michael Harper quoted in Bloomberg BNA
    read more

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Stories from The Record

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Courses

Employment Discrimination: LAW JD 853

3 credits

Comprehensive coverage of federal and state statutory anti-discrimination and accommodation laws governing employment. Federal statutes treated include Title VII of the 1964 Civil Rights Act, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family Medical Leave Act, the Equal Pay Act, and section 1981. Constitutional equal protection law also will be treated where applicable. Topics include disparate treatment, disparate impact, systemic disparate treatment, harassment, retaliation, remedies, including affirmative action, and procedural choices.

SPRG 2023: LAW JD 853 A1 , Jan 17th to Apr 25th 2023
Days Start End Credits Instructors Bldg Room
Tue,Thu 8:30 am 9:55 am 3 Maria O’Brien LAW 209

Law and Sports (S): LAW JD 886

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 legal, contractual, and economic relationship between professional sports franchises and the sports and entertainment venues in which they play, and the ownership of athlete identity and its utilization by athletes, teams, sponsors, and equipment manufacturers. The course also will treat the regulation of agent representation of athletes, the regulation of sports franchises and sports leagues. Grades will be based on client-directed writing and on oral class participation, including an advocacy presentation. There is no examination. 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.

SPRG 2023: LAW JD 886 A1 , Jan 17th to Apr 25th 2023
Days Start End Credits Instructors Bldg Room
Tue 2:10 pm 4:10 pm 3 Wall LAW 418

Supervised Research & Writing: LAW JD 841

Var credits

Upper-class students may pursue a special research interest under the guidance of a full time faculty member, and earn one or two semester credits for a Supervised Research and Writing project (also known as an Independent Study). The study must involve a substantial investment of time and effort, and result in significant written work that reflects a high standard of legal scholarship. The student's final grade will be based solely upon written work submitted, and will be included in the student's average. NOTE: Students must register for Supervised Research and Writing directly with the Registrar's Office. You may not register via the Student Link.

FALL 2022: LAW JD 841 A1 , Sep 6th to Dec 8th 2022
Days Start End Credits Instructors Bldg Room
ARR TBD TBD Var Jack M. Beermann
SPRG 2023: LAW JD 841 A1 , Jan 17th to Apr 26th 2023
Days Start End Credits Instructors Bldg Room
ARR TBD TBD Var James E. Fleming