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injury such dilution is incompatible with any role the fourteenth amendment might have played in policing encroachment on and protecting established tort rights p 17 if as duff claims states cannot constitutionally eliminate tort law then it follows that states cannot also eliminate or substantially hamper tort s replacement duff is bullish about both this argument s legal and moral weight and urges workers to adopt it in developing a legal theory of rights violation and advocating for workers compensation reforms pp 9 18 even readers who do not sign onto duff s constitutional argument can find something to like in this article he offers a host of statistics on the present state of the workers compensation system across states he provides a case study of the problem of occupational diseases especially those with long latency periods and tricky questions of causation resulting in the sheer horror of over 100 000 untracked occupational disease deaths per year p 36 he walks through a catalog of examples of worker protective approaches to this problem including a legislatively established presumption of causation for firefighters diagnosed with certain types of cancer and similar temporary presumptions covering workers who contracted covid during the pandemic he also carefully analyzes the interaction of federal labor law with state level workers compensation laws and throughout he prompts us to question the language that is commonly used to describe accidental harm to workers thereby also questioning our complacency about such harm a ssuming that all work injury is accidental puts the cart factually before the horse work harming workers is no accident all industry foreseeably harms workers the only unknown fact is which particular employer or industry will harm which particular employee p 4 in sum duff goes beyond the well documented weaknesses of modern workers compensation instead he asks a deeper question what becomes of the original grand bargain when the substitute for tort law no longer provides adequate redress his big swing in answering this question is to find constitutional protection for injured and ill workers in the ninth and fourteenth amendments i like that this article forces readers to confront the hollowing out of workers compensation to consider the real losses to workers and to be ambitious in the search for legal tools that might restore workers dignity and security cite as charlotte s alexander a constitutional reckoning for workers compensation jotwell november 5 2025 reviewing michael c duff reverberations of magna carta work injuries inkblots and restitution __ ne l rev __ 2025 available at ssrn sept 17 2024 https worklaw jotwell com a constitutional reckoning for workers compensation deciding whether a reasonable jury would find harassment severe or pervasive enough oct 3 2025 sachin s pandya 1 comment elizabeth c tippett jamillah b williams misjudging a reasonable jury evidence that courts dismiss meritorious harassment claims available at ssrn may 7 2025 sachin s pandya how often and why do judges erroneously conclude in title vii harassment cases that there isn t enough for a reasonable jury to find that the plaintiff suffered severe or pervasive enough harassment for title vii liability these questions are not easy to answer no one can directly observe the counterfactual i e how a jury would have ruled had the case gone to trial and if deciding what a reasonable jury might do requires inferring what most juries or a jury under ideal conditions would do then judges could still be good forecasters even if any particular jury would have gone the other way enter tippett and williams with a study that provides serious leverage for answering these questions they first sampled title vii harassment case opinions in westlaw between 1995 2019 n 81 mostly summary judgment motions in which the court decided whether or not there was an issue of fact on whether the conduct qualified as severe or pervasive enough for a title vii violation in 53 of the 81 cases 65 the court found that no reasonable jury could find that the conduct was severe or pervasive enough p 19 next tippett and williams deployed an online qualtrics survey during 2019 2020 and 2022 recruiting respondents from amazon s mechanical turk platform n 699 their survey randomly assigned to each mturk respondent an excerpt from the fact section from one court opinion in their sample of court cases this excerpt 500 words or less described only the allegations and evidence relevant to the alleged harassment not how the court weighed them all respondents also got a jury instruction on a title vii harassment claim adjusted for whether their case concerned harassment due to race sex or both that instruction included that the conduct had to be sufficiently severe or pervasive that a reasonable person in the plaintiff s position would find the plaintiff s work environment to be hostile or abusive then the survey asked each respondent to rate to indicate how severe or pervasive the conduct was from 0 not at all to 100 extremely whether that conduct was severe or pervasive enough to satisfy the jury instruction yes or no and to p lease explain why via an open text box pp 21 22 33 in this way tippett and williams got multiple mturk respondent reactions to the same case fact pattern with their survey results tippett and williams compared what courts had done with how their individual survey respondents reacted to the same fact pattern figure 1 figure 2 and figure 3 depict the distribution of mturk survey respondent numerical ratings stratified by whether or not the rated fact pattern came from a title vii harassment case for which a court concluded that a reasonable jury could or could not find the harassing conduct to be severe or pervasive enough for title vii liability the authors provided me with the underlying data figure 1 also indicates by point color the survey respondent s decision as to whether their randomly assigned fact pattern was severe or pervasive enough for title vii liability figure 1 boxplot of survey respondent ratings figure 2 histogram of survey respondent ratings figure 3 density plot of survey respondent ratings however you visualize it the key takeaway is the same whereas most survey respondents assigned high severe or pervasive ratings to fact descriptions from the reasonable jury could cases many survey respondents also assigned high ratings even in cases where the court had concluded that a reasonable jury could not find severe or pervasive enough conduct and in those cases when asked simply whether their randomly assigned fact pattern was severe or pervasive enough over sixty percent of the survey respondents said yes if courts were good predictors of what a reasonable jury would do in those cases we should expect to see far less spread in ratings perhaps something more like a reverse mirror image of the spread of ratings on the reasonable jury could cases the green left side plots in figure 2 and figure 3 in fact however the ratings in the reasonable jury could not cases the red right side plots in figure 2 and figure 3 exhibit a lot of spread assuming the survey respondents ratings and judgments are in the aggregate a valid proxy for what a reasonable jury would do tippett and williams infer that judges are far too aggressive in dismissing cases on the basis of the severe or pervasive element of the title vii harassment claim p 26 if so why to advance the ball here tippett and williams compared the court opinions in their case sample with what the survey respondents wrote in the survey s open text box median number of words 25 to explain why they believed the conduct they rated was or was not severe or pervasive enough to satisfy the title vii jury instruction in general they found judges assigned far less weight to certain kinds of evidence on the severe or pervasive issue as compared to the survey respondents such evidence included whether other employees suffered the same harassment the harasser s continued harassment even after a company warning and company complicity in not stopping the harassment p 58 this result they conclude is consistent with what zimmer 2000 once called slicing and dicing 9 the theory that in title vii cases judges tend to take the probative value of each item of evidence usually offered to prove discriminatory motive in isolation whereas laypeople tend to weigh such evidence as a whole as the law requires on this account judges slice and dice even though on summary judgment motions they are supposed to construe all available inferences from the evidence in favor of the non moving party as usual answers beget more questions if slicing and dicing accurately describes how judges reason not just how they write opinions strategically what about title vii harassment cases causes judges to think this way how are those causes related to other factors including judge juror demographics political attitudes or whatever might lead judges to effectively conflate what a reasonable jury could find with what they think a real jury should find and would this study s inferences hold if we did it with actual mock juries i e laypeople who could discuss the facts with each other before deciding no one study is an island and this study s design like any study carries some limits on what we can validly infer from it still if you care about title vii harassment cases or employment discrimination litigation generally tippett and williams paper deserves your time and attention editors note reviewers choose what to review without input from section editors jotwell worklaw section editor elizabeth c tippett had no role in the editing of this article michael j zimmer slicing dicing of individual disparate treatment law 61 la l rev 577 2000 https lawecommons luc edu facpubs 290 cite as sachin s pandya deciding whether a reasonable jury would find harassment severe or pervasive enough jotwell october 3 2025 reviewing elizabeth c tippett jamillah b williams misjudging a reasonable jury evidence that courts dismiss meritorious harassment claims available at ssrn may 7 2025 https worklaw jotwell com deciding whether a reasonable jury would find harassment severe or pervasive enough beyond collapse why labor law probably can t end sep 5 2025 michael c duff 1 comment alvin velazquez the death of labor law and the rebirth of the labor movement b c l rev forthcoming available at ssrn feb 13 2025 michael c duff in the death of labor law professor alvin velazquez asks what if the national labor relations act nlra dies because as some employers want the us supreme court declares at this very late hour that act unconstitutional p 18 assuming that happens velazquez offers a silver lining by showing how by doing so the court could serve as a catalyst for a series of most likely unfortunate events as well as fervent organizing opportunities p 7 thus from death comes life the article falls within a tradition of labor law scholarship that insists like oliver wendall holmes dissent in vegelahn v guntner that labor conflict is inevitable and labor law is always a provisional accommodation between labor and capital in particular velazquez considers how the nlra might collapse pp 13 25 reminds readers that labor law and labor conflict preexisted the nlra pp 49 50 takes solace in the norris laguardia act s bar on federal courts issuing labor injunctions in peaceful private sector labor disputes p 38 and reminds readers that a defunct nlra may mean a dissolution of unduly complex federal preemption doctrines in turn freeing states to innovate in the area of labor relations in ways they cannot do now pp 31 38 the article covers a great deal of ground it will stimulate and provoke labor law readers and perhaps also general legal readers focused on major administrative law developments current courts may attempt to disable the nlra from regulating labor management conflict in a variety of ways one possible way is by using the recently invented major questions doctrine mqd a clear statement rule of statutory interpretation that ostensibly applies when a federal administrative agency asserts authority of economic and political significance p 14 once upon a time the american legal order accepted instinctively that labor conflict itself was of vast economic and political significance placing the burden on employers covered by the nlra to justify increasing the risk of industrial strife courts today however acknowledge neither the risk of industrial strife nor that the nlra reduces it what if the the court applied the mqd to the nlra pp 14 15 disagreeing somewhat with other scholars velazquez concludes that i t would be easy for the court to find a lack of delegation by congress to the board especially if the nlrb interprets the parts of the nlra defining coverage to new economic industries p 16 this insight connects dubious legal protection of the rights stripping gig economy to mqd invocation velazquez concludes that the court may have ideological reasons to supplement doctrinal reasons for expanding the black hole that is the mqd to undermine the nlra pp 16 17 velazquez also considers that the court may cripple the nlra by ruling that the nlra s removal protection for members of the board and the aljs violates the constitution under the unitary executive theory under which the president may remove all administrative officials at will and not just for cause pp 18 23 this is the humphrey s executor issue currently working its way through the circuit courts velazquez wonders if the unitary executive theory will capsize the nlrb he suggests that the court could use such a challenge to extend its decisions in free enterprise fund v public company accounting oversight board seila law and collins v yellen to hold that the nlrb s termination protections for both its members and aljs are unconstitutional pp 20 21 this development seems plausible if the nlra falls in whole or in part on various constitutional grounds structural questions arise for example could the nlra function without its constitutionally infirm head that is without the nlrb as velazquez observes p 25 the nlra s separability provision states i f any provision of this subchapter shall be held invalid the remainder of this subchapter or the application of such provision to persons or circumstances other than those as to which it is held invalid shall not be affected thereby 29 u s c 144 velazquez seems to prefers an actually dead nlra to a severed hampered nlrb the merely hampered nlrb that exists but has no powers to actually enforce labor law despite being intimately intertwined with the act actually suppresses the ability for states to engage in creative law making p 46 perhaps the nlrb could be reconstructed in some way but velazquez seems to doubt this possibility pp 46 47 velazquez concludes his article by anticipating objections if the nlra completely crashes as opposed to morphing i...