Saturday, March 12, 2011

Democracy and Workers Rights: West Virginia Weekend

As the legislative battle in Wisconsin continued on Friday with the enactment of a bill which limited collective bargaining rights of most state employees, similar disputes are simmering across the country.  Along with Wisconsin, Ohio, Iowa, and Idaho, among others, seem poised to join the growing group of state governments that are prohibiting at least some public employee collective bargaining.  Also on Friday, the West Virginia House of Delegates passed a resolution supporting the public employee unions in Wisconsin.  Despite this show of support, and unlike Wisconsin, which still allows collective bargaining in limited circumstances, West Virginia law does not extend collective bargaining rights to any public employees.

WV Weekend Logo These controversies raise issues of democracy and dignity. WVU College of Law Professor Anne Marie Lofaso recently commented on a new federal proposal that would count a non-vote as a no-vote in elections regarding unionization by saying that such a process would run "counter to the spirit of democracy." Likewise, Lofaso uses notions of democracy and dignity as the basis of her theorizing about workers and unions.  In Toward a Foundational Theory of Workers’ Rights: The Autonomous Dignified Worker, 76 UMKC L. Rev. 1, available on ssrn, Lofaso critiques the conventional free-market view of workers and then advocates “a novel theory of grounding workers’ rights in two values: autonomy as promoting an individuals’ freedom to become part author of his or her working life and dignity as promoting each individual as having equal moral worth.” Id. at 3.  Indeed, “[t]he conflict between the property rights of capital and those of labor in market economics signals an incompatibility between the current capitalist conception of property rights and the human right to work.” Id. at 38.

Professor Lofaso writes:

[W]orker autonomy means employees who (1) know what issues affect their working lives and know how to resolve those issues according to their own interests; (2) have access to information relevant to making informed decisions; and (3) are free to effectively decide how to resolve those issues. Autonomous workers must, therefore, possess the power to effectuate these decisions. But workers who do not gather together may simply not have the power to control decisions affecting their working lives. Thus, worker autonomy often implies some level of industrial or worker autonomy—the need for meaningful employee participation at a variety of levels, a right to any information management would deem necessary to effect wise business decisions on behalf of property owners; state intervention to protect these worker rights to be free from coercive forces, all set in a pluralist industrial or other workplace framework.

Id. at 41-42.  The author concludes with specific recommendations for the Congress, Executive, Supreme Court, and NLRB, to protect the rights of the autonomous and dignified worker. Id. at 57-64.

Coal Miner In her most recent piece, “What We Owe Our Coal Miners,” 5 Harv. L. & Pol’y Rev. ___ (forthcoming 2011), [UPDATE: NOW available on ssrn], Lofaso focuses on the work of coal mining, work that is closely identified with West Virginia.  Indeed, the statute of a coal miner (pictured right) is on the grounds of the State Capitol Complex.  Despite the valorization of coal miners, the workers themselves are often under-protected, as illustrated by last year's loss of life at the Upper Big Branch mine, owned by Massey Coal Company, of Caperton v. Massey Coal Company fame. 

Lofaso advocates mandating the union model on the mining industry by demonstrating that “collective bargaining above the regulatory floor is likely to result in safer, healthier mines, and that the safety records of such mines will be better justified when based on informed, unforced, general agreement.” Id. at 702.  Throughout the article, Professor Lofaso observes the power disparity between coal operators and their miners; examines the incentives for operators to circumvent mining regulations; identifies several market failures, such as inequality of bargaining power, irrationality in assessing risk, asymmetrical information, and monopsony; and, finally, advocates for “extending the union model to nonunion mines” in order to resolve many safety issues. Id. at 702-03.

In sum, Professor Lofaso writes:

Coal mine operators possess greater bargaining power than coal miners. The conditions resulting in this disparity of bargaining power are precisely those conditions that Congress intended to ameliorate when it passed the NLRA. A comparison between pre- and post-regulator fatality rates in coal mines strongly supports the conclusion that current regulations make coal mines safer. Those regulations raise the floor of rights on top of which unions bargain, thereby further addressing the disparity of bargaining power . . . making it more likely that unions will bargain for even better safety conditions than current regulations permit. . . . Accordingly, it makes sense for policy makers to consider bringing the union model into the nonunion coal mine.

Id. at 726. From the more “radical solution” of compelling union representation for all coal mines, id., Lofaso also advocates more modest proposals, “such as posting miners’ rights,” or “mandate[ing] bargaining over health and safety . . . regardless of whether the miners are union represented.” Id. at 724.   Ultimately, Lofaso observes that “[d]angerous jobs in industries that the public perceives to be vital to its comfort and security may be here to stay, but that does not mean that the public shouldn’t demand that policy makers focus on questions of human life and dignity in the context of these crucial multi-billion dollar industries.” Id. at 727.

The Constitutional power of the federal government to mandate unionization or even worker safety has become contenstious, as has the legitimacy of state governments relationship towards unionization.  Lofaso's work reminds readers - - - in West Virginia and elsewhere - - - that such arguments have real life consequences.


with J. Zak Ritchie

(image: The West Virginia Coal Miner,  bronze statue by sculptor Burl Jones, photograph by Ken Thomas, via)

March 12, 2011 in Current Affairs, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Pugliese on CIA Torture at Association for the Study of Law, Culture and the Humanities

The keynote lecture Friday evening at this year's conference of the Association for the Study of Law, Culture and the Humanities was Anatomies of Torture: CIA Black Sites and Redacted Bodies, delivered by Joseph Pugliese (pictured) of Macquarie University in Australia. Pugliese

In his examination of the so-called "black sites," secret prisons located outside U.S. jurisdiction in which a range of state-sanctioned practices of torture have transpired, Pugliese focused on the death of a young Afghan man, Gul Rahman, who died on 20 November 2002, in the CIA black site prison known as the Salt Pit, located in northern Kabul, Afghanistan.  While Rahman's body has never been recovered, Pugliese argues that Rahman is nominally buried within the Classified Response to the U.S. Department of Justice Office of Professional Responsibility Classified Report Dated July 29, 2009. This document, prepared by Counsel for Judge Jay S. Bybee, is a detailed repost to the accusation made by the Office of Professional Resposibility (OPR) that Bybee committed professional misconduct in light of Bybee’s memo (August 1, 2002) to Alberto Gonzales, Counsel to the President, which authorised some forms of torture.

Yet portions of the memos are redacted.  Pugliese displayed the memos and examined the legal process that edits and censors a document of any secret or sensitive information through the application of a black marker over designated text.  In the context of the CIA "black sites" and the Salt Pit in particular, Pugliese argues that the process of redaction must be seen as producing its own discursive black sites of silence, loss and death.

Pugliese's presentation was spell-binding and an excellent capstone to a conference in which the critical tools of humanities scholars and legal scholars were so often combined.



March 12, 2011 in Conferences, Executive Authority, Foreign Affairs, International, Scholarship, State Secrets, Theory | Permalink | Comments (0) | TrackBack (0)

Thursday, March 10, 2011

Happy Birthday Justice Scalia?

SCALIALinda Greenhouse points out that Friday March 11 is Scalia's 75th birthday, but her wishes are not necessarily warm ones. 

Instead, Greenhouse discusses Scalia's  "bullying" of his junior colleagues, notably the female ones.  She focuses on Scalia's dissenting opinion in Michigan v. Bryant, which the only other dissenter, Ginsburg, did not join, and which was aimed at a majority opinion written by Sotomayor.  She also recounts Scalia's scathing reaction to O'Connor, when O'Connor was new and the first woman Justice, on the subject of abortion, noting that Scalia did not ultimately prevail.

Greenhouse sums up Scalia's almost 25 years on the Court as ones in which he "has cast a long shadow but has accomplished surprisingly little."

The notable exception - - - and some would say it is a rather large one - - - is District of Columbia v. Heller, revivifying the Second Amendment.


[image of Antonin Scalia, via]

March 10, 2011 in Abortion, Courts and Judging, Criminal Procedure, Supreme Court (US) | Permalink | Comments (2) | TrackBack (0)

CFP: Secrecy, National Security, and the Vindication of Constitutional Law

For a Conference in Milan, Italy on December 1-2, 2011, with proposals due April 24, 2011.

In virtually every nation, assertions of the need for secrecy on matters of counterterrorism policy and practice have created tensions with efforts to ensure transparency, accountability and procedural fairness. The conference is open to proposals that seek to bring comparative analysis to bear on how best to mediate these tensions, including:


  • the challenge of secrecy to democratic lawmaking on counterterrorism policy;
  • the use of “secrecy” privileges to block litigation challenging allegedly illegal government
  • programs;
  • the use of classified evidence against individuals or organizations to freeze their assets, designate them as terrorist, or justify other restraints on their liberty;
  • the use of “anonymous” witnesses who testify without revealing their identity;
  • the closure of criminal trials and other proceedings to the public;
  •  and the adoption of secret coercive programs without transparent legal justification, such as the US’s coercive interrogation practices or targeted killing program.

One of the covenors is David Cole of Georgetown; more information and submission details here.


March 10, 2011 in Comparative Constitutionalism, Conferences, Criminal Procedure, Executive Authority, Privacy, Scholarship, Travel | Permalink | Comments (0) | TrackBack (0)

Tuesday, March 8, 2011

International Women's Day, Women in Combat, and Military Leadership Diversity

As the centenary of international women's day, March 8, arrives, the end of combat restrictions on women in the United States military also seems to be ending.

In Rostker v. Goldberg, 1981, the United States Supreme Court upheld the Congressional decision to exempt women from registration for the military.  The challengers argued that the gender classification of the Congressional statute violated equal protection as embodied in the Fifth Amendment's Due Process Clause. The Court opined that the Congressional exempt was not an "accidental by-product of traditional ways of thinking" about women, but instead was permissible because men and women were not similarly situated given the combat restrictions on women.  That these combat restrictions were legal (rather than natural) did not seem important to the six Justices in the majority.

International Women Day

 Today, according to the United States Department of Defense, a

commission established to study diversity among military leaders is recommending that the Defense Department rescind its policy that prevents women from being assigned to ground combat units below the brigade level.

In a report issued today, the Military Leadership Diversity Commission recommends that the department and the services eliminate combat exclusion policies for women, as well as other “barriers and inconsistencies, to create a level playing field for all qualified service members.”


The Military Leadership Diversity Final ReportFrom Representation to Inclusion: Diversity Leadership for the 21st-Century Military, considers a range of diversity, including racial and ethnic diversity.  The final report, at 162 pages, contains 20 broad recommendations, discussed in the shorter Executive Summary.  The exclusion of women from combat is specifically linked to career advancement.  The Press Release, dated March 8, provides an interesting connection to International Women's Day.


March 8, 2011 in Cases and Case Materials, Congressional Authority, Current Affairs, Equal Protection, Fifth Amendment, Gender, History, International, News, Race, War Powers | Permalink | Comments (2) | TrackBack (0)

Monday, March 7, 2011

President Orders Review of Guantanamo Detainees

President Obama today issued an executive order providing for "periodic review of individuals detained at Guantanamo Bay Naval Station pursuant to the Authorization for Use of Military Force."

The move suggests that the White House won't achieve its goal to close down Guantanamo anytime soon.

The new periodic review process applies only to those 172 individuals currently detained at Guantanamo and subject to the interagency review process in 2009.  Under the process, detainees may present a written or oral statement to the review board, introduce relevant information including written declarations, answer any questions posed by the review board, and call witnesses who are reasonably available.  Each detainee gets a "personal representative" and a right to independent counsel (not at government expense).

The EO explicitly grounds authority for the new process in the Authorization for Use of Military Force and explicitly subjects detention at Guantanamo to the Convention Against Torture, Geneva Conventions Common Article 3, the Detainee Treatment Act of 2005, "and other laws relating to the transfer, treatment, and interrogation of individuals detained in armed conflict."  It also explicitly recognizes detainees' right to habeas corpus.

The EO sets this standard for continued detention:

Continued law of war detention is warranted for a detainee subject to the periodic review . . . of this order if it is necessary to protect against a significant threat to the security of the United States.

Emphasis added.


March 7, 2011 in Executive Authority, Habeas Corpus, International, News, Separation of Powers, War Powers | Permalink | Comments (0) | TrackBack (0)

Sunday, March 6, 2011

School District Ban on T-Shirt Violates First Amendment

A three-judge panel of the Seventh Circuit ruled last week in Zamecnik v. Indian Prairie School District #204 that officials at Neuqua Valley High School in Naperville, Illinois, violated the First Amendment when they prohibited a student from sporting a t-shirt that read "Be Happy, Not Gay."

The statement on the t-shirt was the student's anti-gay response to the Day of Silence, an annual event sponsored by a private group called the Gay, Lesbian, and Straight Education Network and intended to draw critical attention to harassment of gays and lesbians.  Some students and faculty wear t-shirts that read "Be Who You Are" on the Day of Silence.  

Officials at the school claimed that the student's statement interfered with the rights of gay and lesbian students.  The Seventh Circuit ruled that that interest wasn't enough to justify suppressing speech, especially when it allowed speech supporting gays and lesbians on the Day of Silence:

Thus a school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality. . . .  [P]eople in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.  R.A.V. v. City of St. Paul. . . . .

"Be Happy, Not Gay" is not an instance of fighting words.  To justify prohibiting their display the school would have to present "facts which might reasonably lead school officials to forecast substantial disruption."  Tinker v. Des Moines Independent Community School District. . . .  Such facts might include a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school--but the school had presented no such facts in response to the motion for a preliminary injunction.

Op. at 5.

The panel also looked to the school's civil educational mission as a reason for allowing the speech:

Although tolerance of homosexuality has grown, gay marriage remains highly controversial.  Today's high school students may soon find themselves, as voters, asked to vote on whether to approve gay marriage, or to vote for candidates who approve of it, or ones who disapprove.

Op. at 4.



March 6, 2011 in First Amendment, News, Recent Cases, Speech | Permalink | Comments (0) | TrackBack (0)