Monday, September 24, 2012

New Articles on SSRN

ScholSeveral important articles have just been posted to SSRN.  I'll bullet the cites up front; the abstracts are after the break.

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Katherine V.W. Stone (UCLA), Globalization and the Middle Class

The most important question for social policy today is: can the United States participate in global trade while maintaining a robust middle class? Or does expanded global trade necessarily mean doom for the U.S. middle class and others in advanced industrial nations? This question might have sounded provocative, incendiary, or just plain silly a decade ago, but it can no longer be ignored. Several different approaches have been advocated to preserve the living standards of the middle class in advanced countries in the face of expanded global trade. This essay examines three clusters of policies that are the most promising, policies to (1) encourage a race to the top that can counterbalance a race to the bottom; (2) promote the creation of local and regional agglomeration economies that will act as counterweights to a race to the bottom, and (3) foster firm-level innovation and develop the skills and human capital of the local population. It concludes that we adopt policies that braid these three together in order to preserve the U.S. middle class.

Jonathan Ross Harkavy (Patterson Harkavy), 2012 Supreme Court Employment Law Commentary.

This article is a comprehensive review of all employment discrimination, labor relations and work-related decisions of the Supreme Court of the United States for its term ending in June of 2012. Included are summaries of the decisions themselves and the author's comments on each case, as well as his observations about the Court's work in the area of employment law.

Ellen Dannin (Penn St.) et al, Testing the Effects of Striker Replacement and Employer Implementation of Final Offers on Employer and Union Bargaining Power.

Many sorts of quantitative and qualitative empirical research are regularly used to answer questions related to work and workplace issues. However, some issues involving human behavior may be difficult to capture using standard empirical methods. Common barriers include access to people or information; problems with accurate or honest reporting; behavior that occurs over long periods of time; cost; and ethical barriers as to research using human subjects.

Important information related to collective bargaining can be difficult to collect for all of these reasons. Participants in collective bargaining may not want outsiders present for all or critical parts of negotiations. They may not be candid about motives or actions, or they may be honest but not fully self-aware as to motives or actions. Bargaining sessions may be long and extend over months or years. In the case of gathering information about collective bargaining within the larger union-employer-employee contexts may require decades of access and involvement. As a result, costs in terms of time and funding and other issues may rule out examining certain sorts of questions using actual participants engaged in collective bargaining.

Thus, one important area that would benefit from empirical research – testing the effects of law and proposals for law reform in general and collective bargaining law reform in particular – has so many of these problems that many important issues cannot be tested using standard methods. In addition, testing law reform proposals requires gathering data on actions that have not yet happened.

Simulations provide one useful way to overcome many of these problems. In effect, simulations create a law reform laboratory. Of course, simulations are only useful if they are reflect reality. This article examines evidence as to participants’ actions in a simulation used to test various iterations of laws governing how collective bargaining impasses are to be resolved and whether those actions sufficiently mirror those of employer and union negotiators as to provide reliable data on the likely effects of law reform.

Ellen Dannin, Privatizing Government Services in the Era of ALEC and the Great Recession.

The American Legislative Exchange Council (ALEC) burst onto the scene, with privatization of public services as a major focus. On March 11, 2010, newly elected New Jersey Governor Chris Christie responded to the state’s financial crisis by issuing an executive order creating a privatization task force – popularly known as the “Zimmer Commission” – to address the state’s financial crisis.8a The executive order’s list of reasons for creating the Task Force included being “hindered by legal impediments, many of which were needlessly self-imposed by the prior administration”; agreeing to “an unreasonable “memorandum of agreement” (“MOA”) that purports to prevent the State from taking common sense management approaches to achieve personnel efficiencies in the near term”; “delaying previously negotiated wage increases until after the end of the prior administration has resulted in the State having reduced flexibility to manage its workforce and effectively increased the costs that will be associated with achieving near-term savings by ensuring rounds of litigation in order to preserve basic managerial prerogatives with respect to the size and composition of the State workforce”; and “needlessly” limiting the flexibility needed “to manage its wage and salary payments and the size of its workforce “...while simultaneously preventing meaningful managerial control of the State workforce.” And New Jersey was not alone.

Ellen Dannin, No Rights without a Remedy: The Long Struggle for Effective National Labor Relation Act Remedies.

Human Rights Watch and others have criticized the National Labor Relations Act (NLRA) for having remedies so weak they fail to enforce the law and to protect employees. This issue is not new. In fact, there was a hard fought struggle over NLRA remedies during its drafting and, once it became law, in the courts. The struggle over remedies continues today. In September and December 2010, Acting National Labor Relations Board (NLRB) General Counsel Lafe Solomon took up that challenge by building upon prior General Counsels‘ initiatives seeking to strengthen NLRA remedies. In late 2010, Solomon issued memoranda ordering Regional Offices to seek effective remedies for employer violations that affected employees‘ rights to union representation. In early 2011, Solomon issued three new memoranda concerning remedies in first contract bargaining cases, new methods for calculating backpay remedies to better effectuate the NLRA‘s remedial purposes, and changes to the process of deciding whether the amount of backpay should be reduced because of a failure to mitigate damages.

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