Wednesday, August 21, 2013
Riffing off Jeff's early post today on the NAA's amicus brief in Mulhall, I want to bring to reader's attention a provocative blog post written by Jack Goldsmith on the On Labor Blog, entitled: Three Problems in Mulhall. In short, the three problems with conservatives on the Court agreeing that a neutrality agreement represents a Section 302 violation concern: (1) the lack of a private cause of action; (2) pleading problems; and (3) mootness.
Jack does an excellent job laying out why conservative Justices set to deliver a death blow to neutrality agreements between employers and union in organizing campaigns will have a hard time doing so consistent with their conservative judicial principles (yes, I know this assumes we live in a judicially-principled world).
Here's Jack's conclusion:
Perhaps the Court will reverse in Mulhall on the basis of one of these three arguments (it is not clear that any of them is properly presented, though the first issue might be included within the general interpretation of the statute, and the third is probably jurisdictional). Or perhaps the Court will reverse after determining that employer concessions are not “things of value” under Section 302. (I think this is hard to do, if the Court gets this far.) Or perhaps it will dismiss the case as improvidently granted. But if (as many people think) the right side of the Court is set to affirm on the Eleventh Circuit’s theory of Section 302, it will have to do so in the face of some pretty important conservative principles, including freedom of contract, a presumption against private rights of action, a commitment to strict pleading rules, and respect for the limited subject matter jurisdiction of federal courts.
An important post by Jack and one that I hope may even (dare I dream?) lead to a certiorari improvidently granted ending.