Friday, June 27, 2008
I haven't read any empirical work to support this, but my impression from practice is that employment law, broadly, is one area in which people commonly proceed pro se. In fact, other than prisoner § 1983 suits, and maybe property tax appeals and misdemeanor traffic violations, it's an area in which pro se plaintiffs are common. And one area within employment law that has an especially large number of people proceeding without attorneys is the unemployment insurance benefit field.
This is an area that probably few of us cover much in our classes--either unemployment or dealing with pro se plaintiffs, but perhaps we should. Unemployment insurance is an area that can be used to talk about employment and economic policies in the US, similar to the discussion of minimum and living wages, but with some general discharge policies addressed, too.
And as for the pro se issue, I think that's extremely important. I always felt an extra responsibility in cases involving parties without counsel both to the court, to ensure that it understood both sides of the issues (because the party acting without a lawyer rarely articulated his or her position as well as is possible), and to the party, to ensure that the person without a lawyer understood what was happening in the litigation. This was something that I could manage fairly well as an ethical matter. I was an assistant AG, and had an ethical obligation to do justice, since my client was the people of the state of Illinois, which meant that I had some obligation to look out a little bit for the person proceeding pro se, even though I did not represent that person. It would seem to me that attorneys in private practice would have to walk a bit of a finer line to be sure that their client is appropriately represented.
In any event, the Court of Appeals for the District of Columbia issued an interesting decision discussing the role that an administrative adjudicator should play in hearings involving parties pro se. The case is Berkley v. D.C. Transit, and can be found here by searching for case number 07-AA-297. It will be published in A.2d.
In dealing with this question about parties appearing pro se, the court stated
Generally, a pro se litigant is entitled to no special treatment, nor substantial assistance from the judge assigned to her case. However, there are exceptions and circumstances which require special care by the judge, meaning that the pro se litigant is not “left to fend entirely for [herself].” . . . These “special circumstances” include cases involving “merely technical, rather than substantive rules of procedure,” . . . and those concerning a remedial statute.
The court found that the administrative adjudicator here had confused the claimant and had not considered her lack of sophistication in analyzing her testimony. Because of this and because the court found that the adjudicator's findings lacked substantial evidence, the court reversed the decision. Somewhat ironically, the employer was not represented by counsel, either, and didn't appear at the hearing or file anything in the review proceeding.
- Leticia M. Saucedo (left), Addressing Segregation in the Brown Collar Workplace: Toward a Solution for the Inexorable 100%, 41 U. Mich. J. L. Ref. 447 (2008).
- Kerri Lynn Stone (second), License to Harass: Holding Defendants Accountable for Retaining Recidivist Harassers, 41 Akron L. Rev. 1059 (2008).
- Kevin D. Brown (third) & Vinay Sitapati, Lessons Learned from Comparing the Application of the Constitutional Law and Federal Anti-Discrimination Law to African-Americans in the U.S. and Dalits in India in the Context of Higher Education, 24 Harv. Blackletter L.J. 3 (2008).
- Adam R. Pulver (fourth), An Imperfect Fit: Obesity, Pubic Health, and Disability Antidiscrimination Law, 41 Columbia J. L. Soc. Probs. 365 (2008).
- Charity Williams, Misperceptions Matter: Title VII of the Civil Rights Act of 1964 Protects Employees from Discrimination Based on Misperceived Religious Status, 2008 Utah L. Rev. 357 (2008).
- Barbara C. Bentrup, Friend or Foe: Reasonable Noncompete Restrictions Can Benefit Corporate In-House Counsel and Protect Corporate Employers, 52 St. Louis U.L.J. 1037 (2008).
- Leslie A. Harrelson, Recent Fourth Circuit Decisions: Retail Industry Leaders Ass'n v. Fielder: ERISA Preemption Trumps the "Play or Pay" Law, 67 Maryland L. Rev. 885 (2008).
- Elizabeth Goergen (right), Women Workers in Mexico: Using the International Human Rights Framework to Achieve Labor Protection, 39 Georgetown J. Int'l L. 407 (2008).
- Michael D. Hurd & Susann Rohwedder, The Retirement Comsumption Puzzle: Actual Spending Change in Panel Data (297).
- Ian Ayres & Barry J. Nalebuff, Life-Cycle Investing and Leverage: Buying Stock on Margin Can Reduce Retirement Risk (213).
- Katherine V.W. Stone, The Future of Labor and Employment Law in the United States (155).
- Chris Armstrong, Alan D. Jagolinzer, & David F. Larcker, Chief Executive Officer Equity Incentives and Accounting Irregularities (129).
- Paul M. Secunda, "The Longest Journey, with a First Step": Bringing Coherence to Sovereignty and Jurisdictional Issues in Global Employee Benefits Law (107).
- Theodore Eisenberg & Charlotte Lanvers, Summary Judgment Rates Over Time, Across Case Categories, and Across Districts: An Empirical Study of Three Large Federal Districts (107).
- Anne Marie Lofaso (photo above), September Massacre: The Latest Battle in the War on Workers' Rights Under the National Labor Relations Act (106).
- Aaron Halegua, Getting Paid: Processing the Labor Disputes of China's Migrant Workers (85).
- John L. Campbell, Dan S. Dhaliwal, & William C. Schwartz, Jr., Equity Evaluation Effects of the Pension Protection Act of 2006 (84).
- Robert Ashford, Binary Economics: The Economic Theory that Gave Rise to ESOPs (83).
From the Sacramento Bee via CCH Workweek, comes the news that the California Labor Commission last week fined a Santa Clara-based company $4,000 for violating state law that requires employers to reasonably accommodate employees who are breastfeeding. The law requires that employees be given reasonable privacy and reasonable breaks to allow them to express milk.
A woman employed by International Security Services Inc., a private security firm, had to express breast milk in a room monitored by security cameras and didn't get the time she needed. Stress and lack of time have negative impacts on milk production, and I can imagine that both of those things made it nearly impossible to express milk at all. Not to mention the privacy issues . . . . I'm glad to see the California Labor Commission enforcing this law. It's hard enough balancing work and life with a new baby, particularly when you've chosen to breastfeed. Requiring employers to provide a clean, private place and a few breaks in the workday is not so much of an imposition, compared to the benefits to the women who need them and the benefits the company enjoys with worker retention and with workers who can concentrate on work instead of worrying.
Picking up on our discussion of the Ninth Circuit's recent Quon case, the New York Times has a story on a case that one expert aptly describes as "a great exam question." There are some significant dispute as to what happened, but the basic issue involves a company's monitoring of an ex-employee's private emails (this is a long excerpt, but there's a lot going on):
When he was fired, Scott Sidell was angry enough. Then he found out that his former employer was reading his personal Yahoo e-mail messages, after he had left the company. In a lawsuit that he filed in May against Structured Settlement Investments, the finance company he used to run, Mr. Sidell claims that executives at the company went so far as to read e-mail messages that he had sent to his lawyers discussing his strategy for winning an arbitration claim over his lost job. . . .
The law governing e-mail communications is still evolving. Generally, courts have found that employers can monitor employees’ e-mail communications on company computers. But courts have also recognized greater privacy protection for e-mail messages sent using personal, Web-based e-mail accounts. For example, this month a panel of the United States Court of Appeals for the Ninth Circuit in California ruledthat personal text messages sent on two-way pagers provided to police officers in Ontario, Calif., were protected from the department. . . .
In addition to concerns about privacy in the workplace, Mr. Sidell’s claim involves communications between a lawyer and a client. “It’s a nice set of factors that are all compacted into this,” said Matt Zimmerman, senior staff attorney in the San Francisco office of the Electronic Frontier Foundation, a nonprofit civil liberties organization that seeks to protect privacy rights online. . . .
Companies often adopt policies explicitly stating that everything an employee does on a computer provided by the employer is subject to monitoring. But even so, and especially in the absence of such a policy, employees may have a reasonable expectation of privacy, Mr. Zimmerman said. Moreover, he said the expectation of privacy would be even higher if employees used remotely hosted personal e-mail accounts like those provided by Yahoo. John Crossman, a lawyer at Zukerman Gore & Brandeis representing the company, said Structured Settlements had a policy that gave it the right to access its own computers. (Structured Settlement offers lump-sums to people receiving installment payments — from personal injury settlements or lottery winnings, for example.) But Mr. Sidell was no longer an employee when his mail was supposedly read. And he said in his complaint that it went well beyond the company’s rights to read e-mail messages from the personal account of a terminated employee to his lawyer. . . .
Another question is how it was possible to read Mr. Sidell’s Yahoo e-mail messages. In his complaint, he said that when he returned to his office after he was fired, he may not have signed out of his Yahoo account. A feature of the account could have allowed anyone using his computer to access his e-mail messages for up to two weeks. Rich Palma, the chief operating officer for Structured Settlement, outlined the company’s position in a statement filed with the court. Mr. Palma said that Mr. Sidell had returned to the office after he was fired and had begun using another employee’s computer. He said that Mr. Sidell had used that computer without authorization and had sent trade secrets and confidential company information to his Yahoo e-mail account. Mr. Palma said the information included lists of customers, their home addresses and phone numbers, terms of deals and brokers who had sent business to the company and personal information about the company’s employees. . .
That twist in the case, if true, may support the company’s claim against Mr. Sidell for violating terms of his employment contract, which among other things prohibited him from competing against his employer for three years after leaving the company. Of course, if the company learned of the contractual breach by improperly reading Mr. Sidell’s personal e-mail, that could support his claim.
I'm known for my complicated fact patterns, but even I might not go this far on an exam. What's great about cases like this is that they really show how much employment law overlaps with other areas of the law. Off the top of my head, this case implicates employment law, legal ethics, intellectual property, personal property, and Internet law--and I'm no doubt missing others.
Hmmm, on second thought, maybe this would be a good exam question.
Hat Tip: Bill Herbert
U.S. News is soliciting comments on two ways it is considering for improving its law school ranking system:
The first idea is that U.S. News should count both full-time and part-time entering student admission data for median LSAT scores and median undergraduate grade-point averages in calculating the school's ranking. U.S. News's current law school ranking methodology counts only full-time entering student data. Many people have told us that some law schools operate part-time J.D. programs for the purpose of enrolling students who have far lower LSAT and undergrad GPAs than the students admitted to the full-time program in order to boost their admission data reported to U.S. News and the ABA. . . . .
[The second idea] calls for U.S. News to compute our bar passage rate component (school's bar pass rate/jurisdiction's bar passage rate) using only the data of first-time takers who are graduates of American Bar Association-accredited schools. Currently, our "jurisdiction's bar passage rate" uses the rate of all first-time test takers from a state regardless of the ABA accreditation of their law schools. This distinction is perhaps most meaningful for the state of California . . . .
In Britain, solicitors can take employment cases on a contingency (or, in Brit parlance, "no-win-no-fee") basis. But the Ministry of Justice has announced that there will be a "research based review of the practice" because of "growing concerns that [it] may not always be operating in the interest of access to justice." But, suggests Jenny at pjhlaw, removing "contingency fee funding arrangements for employment claims will make it much more difficult for employees to bring claims . . . . Paying on a private basis simply isn’t an option for a lot of Claimants."
Kenneth McDonnell (EBRI) has just posted on SSRN an interesting study comparing the compensation of public-sector and private-sector employees. The study is Benefit Cost Comparisons Between State and Local Governments and Private-Sector Employers; here's the abstract:
This paper examines some of the causes of the differences in total compensation costs between state and local government employers and private-sector employers. As of September of 2007, overall total compensation costs were 51.4 percent higher among state and local government employers ($39.50 per hour worked) than among private-sector employers ($26.09 per hour worked) (calculated from Figure 1). Total compensation costs consist of two major categories: wages and salaries and employee benefits. For both of these categories, state and local government employers' costs were higher than those of private-sector employers: 42.6 percent higher for wages and salaries and 72.8 percent higher for employee benefits (calculated from Figure 1). The differences in compensation costs between public-sector and private-sector employers are driven by the differing mix of job functions, work force composition, and concentrations of workers. The composition of the benefit package is another major factor in explaining the difference in compensation costs. Benefit participation rates are higher for state and local government employees and the costs of providing these benefits are higher.
In a nutshell: (1) State and local governments mostly provide education; the private sector mostly provides services; education jobs pays better than service jobs. (2) State and local governments offer much more generous benefits (health and retirement) packages than do private sector employers. (3) Employee participation rates are much higher in the public sector than in the private sector, though this seems largely to be a function of (2). I.e., it's not that private-sector employees are opting out of benefits that are offered -- it's that private-sector employees often do not have the option of participating because no benefits are offered.
Dean Melissa Essary (Campbell) has just been named a vice president of the North Carolina Bar Association’s board of governors. Dean Essary teaches Employment Law, and taught Employment Discrimination at Baylor before accepting the deanship at Campbell.
Thursday, June 26, 2008
would make it easier for workers to prove discrimination. It would explicitly relax some stringent standards set by the court and says that disability is to be “construed broadly,” to cover more physical and mental impairments.
Supporters of the proposal said it would restore the broad protections that Congress meant to establish when it passed the Americans With Disabilities Act that President George Bush signed in 1990.
The changes include making clear that a person should be considered disabled even if mitigating measures can help the person function, essentially superseding the Supreme Court's decision in Sutton v. United Airlines
The bill had bipartisan support:
The chief sponsor of the bill, the House Democratic leader, Representative Steny H. Hoyer of Maryland, said the situation was now bizarre. “An individual may be considered too disabled by an employer to get a job, but not disabled enough by the courts to be protected by the A.D.A. from discrimination,” Mr. Hoyer said.
The chief Republican sponsor, Representative F. James Sensenbrenner Jr. of Wisconsin, said the Supreme Court had “chipped away at the protections” of the 1990 law, leaving millions of Americans with no recourse or remedy for discrimination.
The Senate, is expected to pass a similar bipartisan bill. "Senator Tom Harkin, the Iowa Democrat leading the effort, predicted that the Senate would act 'in the near future.'"
The White House has sent cryptic messages about whether the President will veto the bill. "[A]lthough President Bush 'supports the overall intent' of the House bill, he was concerned that it 'could unduly expand' coverage and significantly increase litigation."
A veto might be unlikely if, as the NYT reports,
The House bill reflects a deal worked out in months of negotiations by business groups and advocates for the disabled. The United States Chamber of Commerce and the National Association of Manufacturer helped shape the bill and endorsed it as a balanced compromise.
It is necessary . . . to acknowledge that this is not a constitutional ruling, that it is only about the Court’s common-law powers, and that it arises only in the context of law governing maritime commerce. But to look at it only in those narrow terms is to miss the signal that the Court is giving – that is, it has grown highly skeptical that it can spell out, in words rather than numbers, workable guidelines that could bring some sense – some consistency – to punitive damages awards.
And in numerical terms, as Denniston points out, the Court has fixed that ratio at 1:1.
Such a ratio, if applied to employment cases, would have a devastating impact. Compensatory damages in employment cases are seldom sufficient to pay for the cost of litigation. The largest component of compensatory damages is lost wages, and these damages aren't huge for low-income employees or employees who have managed to find subsequent employment. What makes employment cases viable -- and what keeps employers honest -- is the possible award of punitive damages.
Yes, punitive damages are a crapshoot. But with low- and moderate-income employees all but priced out of the market for legal services, the fear of punitive damages is the only legal incentive employers have to protect low-income employees from employment discrimination.
Ravi Malhotra (Ottawa) send this bizarre story from Canada (via Globe and Mail):
Like any driven professional, Diane Way was always looking to advance her career. But while most people leave one job before taking a new one, Ms. Way tried a different strategy – she started a new job, kept her old one and didn't tell either employer as she juggled both.
She was hoping to keep her options open in case the new position didn't work out, according to an adjudicator's ruling. Instead, she ended up being fired from both jobs and embroiled in a four-year legal battle over her actions.
It all started in November, 2003, the ruling said, when Ms. Way, then a senior lawyer in the Toronto office of the Canada Revenue Agency, accepted a job in Ottawa with the Canadian Forces Grievance Board, CFGB.
Ms. Way signed the offering letter and checked a box marked: “I accept to this offer.” She didn't tell anyone at the CRA about the offer but negotiated a starting date with the CFGB.
She showed up for her first day of work at the board on Monday Feb. 23, 2004. To cover her absence at the CRA, Ms. Way used some vacation time.
At the CFGB, she attended a new-employee orientation session, met some co-workers and had her contact information entered into the office directory. She was also given an office, a computer and a few files to start working on and arranged dates for training sessions. She even applied for financial assistance to help relocate to Ottawa.
Ms. Way worked at the board for a week. The next Monday, she returned to her CRA job in Toronto and called in sick every day for a week at the CFGB. The Monday after that, she was back in Ottawa at the CFGB, using up more vacation time from the CRA.
Her dual life came crashing down when a human resources officer at the CFGB made a routine call to the CRA in Toronto and discovered that Ms. Way still worked there . . . .
Ms. Way fought back. She filed a grievance and took the CRA to task throughout the investigation, arguing that she had not technically accepted the job but was just “checking it out.”
The CRA determined that Ms. Way could no longer be trusted and it fired her as well. The agency concluded that she had lied throughout the ordeal and violated the federal code of ethics and conduct as well as the conflict of interest code.
Oops. She lost her case before the public labor board, but you got to give it to her for her sheer gall for fighting over this for four years! Maybe she has some relatives in the United States who are advising her.
A few weeks ago, en route to speak at a valuation conference about hedge fund issues, I sat next to a health-conscious surgeon. For nearly an hour, he spoke passionately about spiraling hospital and pharmaceutical costs, due in large part to what he described as an obesity epidemic. He offered several compelling examples of procedures that could have been done at a much lower cost, had patients been smaller in girth . . . .
It was no surprise then that this Sunday's New York Times addressed this problem, said to be costing employers big-time. In her piece, reporter Kelley Holland links to an "aha moment" map, courtesy of the Centers for Disease Control and Prevention. Based on 2006 data, all but four of fifty states clearly struggle with obesity, with at least 20 percent of adults having a Body Mass Index ("BMI") in excess of 30 . . .
* More than 25 cents of every dollar spent on medical services is due to excess weight complications (based on research conducted by Emory University Professor Kenneth Thorpe).
* The corporate tab for too many muffins is $45 billion per year (according to a Conference Board report). See Medical News Today, April 10, 2008.
* Obesity links to chronic health problems more than smoking or excess drinking (based on Rand Corporation research by economist Roland Sturm).
"Waistlines Expand Into a Workplace Issue" is a scary read. Citing examples of employers that offer incentives to visit the gym and otherwise slim down, Holland writes that more needs to be done, despite the fact that it is a "sensitive" issue. While I'm the last to make a value judgement about weight, some disturbing thoughts come to mind.
I agree with Susan on this, of course, but wouldn't it be funny hearing someone say: "I am not going to eat that muffin because I might get fired or my health premiums may go up?"
What is the optimal retirement age? This paper looks at the optimal retirement age from various perspectives. Most of the current pension laws relating to retirement age were codified decades ago, and they have become badly out of date given what we now know about longevity, about health and work in old age, and about how pension policies influence retirement decisions. This paper provides some background about demography, health, and retirement; summarizes how current pension laws influence the design of pension plans and the timing of retirement; and looks at the optimal retirement age from the perspective of employers, government, and workers. This paper then offers some new perspectives on the relationship between demography and retirement age; discusses the implications for public policy; and offers recommendations about how to reform our pension laws so that pension plans comport with our ideas about optimal retirement age.
This article is less about answering the question When should I retire? and more about answering the question At what age should we as a society encourage/discourage people from retiring? Here's the answer:
We think that the minimum age for drawing pension benefits without penalty should be
raised from its current age 59½ to at least age 62, the age of earliest eligibility for Social
Security benefits. We would also raise the normal retirement age from its current age 65 to age 67, the forthcoming age of eligibility for full benefits under Social Security. And we would index both for future improvements in longevity.
The article then provides several policy recommendations for encouraging retirement at these ages.
Congratulations to Emory Law Professor Charles Shanor, who has been elected to the ABA College of Labor and Employment Lawyers. Professor Shanor will be inducted as a Fellow of the College September 13, 2008, at a ceremony in Denver, Colo., in conjunction with the annual meeting of the Labor and Employment Section of the American Bar Association.
The College of Labor and Employment Lawyers was founded in 1995 to promote achievement, advancement and excellence in the practice of labor and employment law. Fellows of the College are dedicated to the study of professional ethics in the practice of labor and employment law, and to the improvement of the delivery and quality of labor and employment legal services.
Shanor has taught (employment discrimination, labor, con law) at Emory since 1990. His books include National Security and Military Law (West/Thomson Nutshell Series 2003), American Constitutional Law: Structure and Reconstruction (West, 2000), Military Law in a Nutshell (2nd ed., West, 1996, with Hogue), and a forthcoming volume entitled EEOC Litigation and Charge Resolution (BNA, 2002, with Livingston). His articles and book chapters include "Battleground for a Divided Court: Employment Discrimination in the Supreme Court, 1988-1989," in The Labor Lawyer (1990), "Some Observations on Broadly Construing Civil Rights Laws," 14 Harvard Journal of Law and Public Policy 8 (1991), Sexual Harassment in Employment Law by B. Schlei, P. Grossman, and D. Kadue (Bureau of National Affairs, 1991), Employment Discrimination Law (Bureau of National Affairs, annual supplements).
Wednesday, June 25, 2008
On a lighter note, BNA's Daily Labor Report (subscription required) has reported on a recent survey of employee happy hour tendencies:
Twenty-one percent of U.S. workers attend happy hours with their co-workers, according to survey results released June 24 by Careerbuilder.com, a job-search Web site. Among survey respondents who said they attended happy hours, nearly one-fourth said they do so at least once a month. A large majority of respondents who attended happy hours--85 percent--said doing so "did not help them get closer to someone higher up or land a better position in the company," but 21 percent of happy hour attendees said the events were "good for networking."
Asked why they attended happy hours, most workers reported going in order to "bond" with co-workers (82 percent), while 20 percent of respondents cited networking opportunities. Another 15 percent said they attend happy hour in order to "hear the latest office gossip," and 13 percent said they go because they feel obligated to do so. . . .
The survey also asked about certain activities that occurred at the happy hours respondents attended. Responses included workers who said someone at a happy hour had "bad-mouthed a coworker or member of management" (16 percent); "shared a secret" about a co-worker (10 percent); kissed a co-worker (8 percent); "drank too much and acted unprofessionally" (8 percent); "shared a secret about the company" (5 percent); and "sang karaoke" (4 percent).
Hmmm, sounds like other people are going to more exciting happy hours than I do. Good thing that they may now enjoy some legal protection.
Hat Tip: Dennis Walsh
BNA's Daily Labor Report (subscription required) is reporting on the NLRB's productivity, which is surprisingly (or not surprisingly if you think about the last several years) productive despite having only two members:
The board issued 128 published and unpublished decisions between January and May compared to 157 decisions during the same period in 2007. However, the intake of new cases fell from 198 during the first five months of last year to 151 during that period this year. As a result, the board's inventory actually declined from 191 cases on Jan. 1 to 186 cases on May 31, despite the vacancies that some board watchers thought would cause a substantial increase in pending cases. . . .
Ironically, the board might actually be functioning more efficiently, in the short run, than if it had five members. "With each person you add, it gets exponentially more difficult," Liebman said. "It's easier to bake a cake with two chefs than with five," Schaumber observed. . . Reacting to criticism that the two board members are only deciding insubstantial cases, Liebman said: "That is just not the case." She asserted that 77 percent of the decisions issued since January have involved exceptions filed in response to an administrative law judge's ruling and that the percentage of decisions involving motions for summary judgment or default judgment is "probably no greater" than in the past couple of years.
Of the cases that have been fully briefed and presented to the two board members for consideration, "we have been unable to agree to date on roughly 20 percent," Schaumber said. "We put those cases aside, and we'll revisit them," the chairman said. "We're making an enormous effort right now to keep on top of new cases as they're coming in. But not having a full board prevents us from" resolving cases on which they disagree, he said.As of the end of May, there were 64 pending ULP cases that have been pending at the board for more than 12 months. Of those, 22 have been pending for more than three and a half years. "We're going to have to take a look at those," Schaumber said. In contrast, there are only four representation cases that have been pending for more than 12 months. One of them involves a state labor neutrality law and was awaiting the U.S. Supreme Court's June 19 decision in Chamber of Commerce of the United States v. Brown.
The two board members have modified their procedures so that they meet together two days a week to hear cases presented by staff attorneys and immediately discuss how to decide them. Face-to-face discussions help them narrow the issues and work out how to approach the case, Liebman said. "The more board members you have, the more luxury you have just to do your own thing. So now we don't have that luxury. It's a little different mind-set," Liebman said. She also observed that the different procedure works because the board's case load is "drastically reduced" from what it was 10 years ago when she joined the board.
These figures reinforce the fact that most of the Board's cases are relatively straightforward; the contentious ones get all the press, but the bulk of the Board's work is enforcing cases that are routine (although not for the parties). This makes the decline in the Board's intake the more troubling statistic and one that has been exacerbated by the the Board's work over the last several years. Although declining union density is also a factor, the drop in cases in recent years has accelerated dramatically and indicates unions' and employees' reluctance to got to the NLRB. That is a problem that the new Board will have to address (in addition to the split cases left undecided).
Kudos to Members Liebman and Schaumber--and their staffs--for making the best of a bad situation. Stay tuned for the challenges to the two-member Board's authority to issue decisions, which could unravel all that work.
Thomas Miles and Cass Sunstein (both of Chicago) have posted on SSRN their article Depoliticizing Administrative Law. The abstract is below. It will resonate with anyone who has even a vague understanding of the politicized history of the NLRB (see this post from back in December).
A large body of empirical evidence demonstrates that judicial review of agency action is highly politicized, in the sense that Republican appointees are significantly more likely to invalidate liberal agency decisions than conservative ones, while Democratic appointees are significantly more likely to invalidate conservative agency decisions than liberal ones. These results hold for both (a) judicial review of agency interpretations of law and (b) judicial review of agency decisions for "arbitrariness" on questions of policy and fact. On the federal courts of appeals, the most highly politicized voting patterns are found on unified panels, that is, on panels consisting solely of either Democratic or Republican appointees. On the Supreme Court, politicized administrative law is also unmistakable, as the more conservative justices show a distinctive willingness to vote to invalidate liberal agency decisions, and the more liberal justices show a distinctive willingness to vote to invalidate conservative agency decisions. Indeed, it is possible to "rank" justices in terms of the extent to which their voting patterns are politicized. The empirical results raise an obvious question: What might be done to depoliticize administrative law? Three sets of imaginable solutions have promise: (1) self-correction without formal doctrinal change, produced by a form of "debiasing" that might follow from a clearer judicial understanding of the current situation; (2) doctrinal innovations, as, for example, through rethinking existing deference principles and giving agencies more room to maneuver; and (3) institutional change, through novel voting rules and requirements of mixed panels. An investigation of these solutions has implications for other domains in which judges are divided along political lines, and indeed in which nonjudicial officials show some kind of politicized division or bias.
I have two thoughts about Miles & Sunstein's article.
First, the article assumes that apoliticality is better than politicality (see also Paul's past article arguing that the NLRB may not be as political as most people believe). I agree to the extent that politicality means that you "dance with who brung you" without even stopping to think about the other side of the argument. But it doesn't have to be that way -- it is possible to be political yet still thoughtful. The NLRB was explicitly designed to be a political body, and that's not necessarily a bad thing. For one, it keeps the Board responsive to the electorate. For another, it gives Labor Law casebook writers an excuse to put out new editions every few years. Otherwise, ossification means we lose that gig.
Second, the politicization of the federal bench bothers me much more than the politicization of administrative agencies. Should it? Or are judges, too, just being politically responsive?
Tuesday, June 24, 2008
The NYT reports that last year that dismissals under the military's Don't Ask, Don't Tell Policy hit women in the Army and Air Force much harder than men. Even though women make up 14% of the Army's personnel and 20% of the Air Force's, nearly half of those discharged under the DADT policy were women. This was up from around 35% the year before, still disproportionate, but not at quite the same level.
The data were collected by the Servicemembers Legal Defense Network, an advocacy group. The group did not interview those discharged and so had no information on the cause of the disproportionate number of women. It is interesting that this already marginalized group within the military is hit so hard by this policy, and I hope that more research will reveal why that is.