Tuesday, May 21, 2013
A very interesting guest post today by Lise Gelernter (Buffalo) on the potential impact of yesterday's U.S. Supreme Court decision involving administrative law and the FCC, which could have some impact on the NLRB's power to interpret the jurisdictional bounds of its own statute:
As an administrative law geek, I read the Supreme Court’s Chevron decision issued yesterday (City of Arlington v. FCC 569 U.S. __, slip op. No. 11-1545 (5/20/13)) with great interest. And then I started wondering if it had any impact on the NAM v. NLRB case concerning the NLRB’s authority to require employers to exhibit posters about employees’ collective bargaining rights.
In the Arlington v. FCC case, the majority (with Justice Scalia writing the decision and Justice Roberts strongly dissenting, joined by Justices Alito and Kennedy) said that courts had to defer, under Chevron, to the FCC’s determination that it had the jurisdiction or authority to interpret an ambiguous part of its statute. The statute in question required state and local governments to act on wireless antennas siting applications “within a reasonable period of time.” 47 USC §332(c)(7)(B)(ii). The FCC had promulgated a rule interpreting “reasonable” to mean 90 days for applications for new antennas on existing towers, and 150 days for all other applications. The question was “whether a court must defer under Chevron to an agency’s interpretation of a statutory ambiguity that concerns the scope of the agency’s statutory authority (that is, jurisdiction).”
The majority found that there was no difference in Chevron treatment of “jurisdictional” questions and “run-of-the mill” applications of an agency’s governing statute. Slip op. at 5. The bottom line was:
judges should not waste their time in the mental acrobatics needed to decide whether an agency’s interpretation of statutory provision is “jurisdictional” or “nonjurisdictional.” Once those labels are sheared away, it becomes clear that the question in every case is, simply, whether the statutory text forecloses the agency’s assertion of authority.
Id. at 9. The Court upheld the Fifth Circuit’s decision to grant Chevron deference to the FCC because the statutory grant of authority was ambiguous and the FCC’s interpretation of its authority was “a permissible construction of the statute.” Id. at 4. The ambiguity was found in the “reasonable period” language in §332(c)(7)(B)(ii) and a “saving clause” that provided “that nothing in the [Communications] Act, except those limitations provided in §332(c)(7)(B) ‘shall limit or affect the authority of a State or local government’ over siting decisions.” Id. at 2 (emphasis added). The City of Arlington had argued that the “saving clause” took away the FCC’s authority to set specific time limits on siting decisions. The Fifth Circuit had determined that the effect of the saving was ambiguous and that the FCC’s determination that it could impose specific time limitations was a “permissible construction of the statute.” Id. at 4.
Although the DC Circuit’s decision in the NAM v. NLRB case is framed differently, I wonder if that court’s insistence on Section 8(c)’s limitations on the NLRB’s ability to require employers to post the NLRB’s words about collective bargaining rights isn’t really just a decision not to grant Chevron deference to the Board’s finding that it had the jurisdiction to require the poster. As was true for the FCC, the NLRB has a broad grant of rulemaking power under §6; the NLRB has “the authority from time to time to make, amend, and rescind . . . such rules and regulations as may be necessary to carry out the provisions of this Act.” §201 of the Communications Act gives the FCC the similar authority to “prescribe such rules and regulations as may be necessary in the public interest to carry out [its] provisions.” Shouldn’t the NLRB’s interpretation of its statute in a regulation get the same deference test applied as was true for the FCC? It can be argued that the DC Circuit just began with the wrong analysis.
Some might argue that the NAM v. NLRB case is very different because it is based on a First Amendment analysis, not a Chevron-type analysis. But the DC Circuit was very careful to tie everything back to the statute in the form of the limits that §8(c) imposes on the NLRB, not really on the First Amendment. The court’s conclusion states: “We therefore conclude that the Board’s rule violates § 8(c).” Slip op. at 23. Thus, the issue in that case really is whether or not §8(c) precluded the Board from issuing its rule (which was the issue the litigants focused on). The Arlington v. FCC case says that if the Board’s statutory interpretation is permissible, the court should defer to the Board’s interpretation in the face of the ambiguity raised by the interplay of §8(c), the §7 rights the NLRA grants, and the broad §6 rulemaking authority. Of course, a court could find that the Board’s interpretation is not permissible, but that is not what the DC Circuit did. The court short-circuited the traditional Chevron analysis that the Arlington v. FCC case requires.
I think Lise's analysis has some really bite to it and will be interested to hear what readers think of her theory in the comments.
Tuesday, April 23, 2013
Continuing a conversation that was started on this blog a couple of weeks, Joe Lurie of the Peggy Browning Fund writes to provide his take on the academic future of labor and employment law in the greater legal academy and what his group, the Peggy Browning Fund, is doing to help to ensure the future of labor law in particular:
As most of you know, the Peggy Browning Fund’s core mission is educating law students as to the rights and needs of workers. As recently as 20 years ago, law schools across the country recognized this educational goal as an important part of their curriculum. Unfortunately, today this is no longer the case. On April 11, 2013, Reuters reported that Professor Paul Secunda, who teaches labor and employment law at Marquette University School of Law, stated that “law schools give labor and employment law short shrift.” Professsor Secunda went on to say that “hiring among law school professors specializing in labor and employment dropped this year, and the field is overlooked at many law schools.”
Thanks to your help, we have made, and continue to make, an impact in the education and recruitment of young lawyers for the labor movement. Our 10-week summer fellowship program and our annual National Law Students Workers’ Rights Conference provide the training and education many law students want but do not receive in law school. We offer law students wide-ranging opportunities to work for social and economic justice. Building on these opportunities, many of our alumni have gone on to work for unions, the National Labor Relations Board, the U.S. Department of Labor, worker centers and union-side law firms.
Law schools have created a vacuum in labor law and employment law legal education. Even though we are proud of increasing the number of fellows we placed to 70 positions, we cannot begin to fill this vacuum. This year we received well over 500 applications for the 70 fellowship positions we can afford to offer. The waiting list for unions and worker centers wanting our students is long and continues to grow. With your help, we can continue to strengthen the labor movement by educating the next generation of lawyers committed to working for economic and social justice.
Thanks to Joe and the Peggy Browning Fund for penning this piece and I can state from personal experience that my students over the years have very much enjoyed participating in the group's national conference and fellowship programs.
Just another avenue (albeit on the union side of things) for providing the labor and employment law skills and education students need to be successful attorneys in this vital area of study.
A rare cultural phenomena – labor issues driving the plot of a prime-time TV show. This week’s episode of The Good Wife (#21), a legal drama on CBS starring Julianna Marguiles, featured a plot devoted to labor law: Attorney Alicia Florick (Marguiles) was ‘tricked/coaxed’ into representing a group of computer coders at a software company who sought to form a union.
Much to my surprise, a series of hearings before an administrative law judge at the NLRB provided the adjudicatory framework. Legal issues included whether: workers were employees; engaged in concerted activity; suffered from discrimination because they chose to form a union, and; whether employer electronic surveillance was lawful. What’s more, the firm’s representation of these employees proved a catalyst for the law firm’s administrative staff to complain about their own workplace conditions and a justifiably cynical take on how employers “lawfully” handle employee dissatisfaction.
If you can get a hold of the episode, excerpts would make for some effective use of popular TV culture for classroom teaching and conversation. A summary of the episode is available at Entertainment Weekly here.
Does all this also mean that labor law is again bubbling up in Americans' consciousness? Have the events of Wisconsin, Michigan, and the NLRB finally got some in Hollywood to take notice of the importance of these issues to the future of our country?
OK, probably not. But one can dream.
Monday, April 22, 2013
First, the United States Supreme Court decided the reimbursement case of U.S. Airways v. McCutchen. The syllabus is provided here in a post by Jeff from last week, but the long and the short is that U.S. Airways, a self-insured health plan provider, had provided medical benefits (some $67,000) to a participant (McCutchen) of their plan injured in a car accident. Although U.S. Airways paid for the medicial expenses arising from the accident, when McCutchen received a settlement of his claim against the third-party tortfeasor (about $110,000), U.S. Airways exercised its rights under the plan's reimbursement clause to recover the amount it had already paid to McCutchen. This would be mean that McCutchen would lose his full recovery because in addition to paying back U.S. Airways for the medical expenses, he owed a 40% contingency fee to his attorneys. He sought the use of two equitable doctrines - unjust enrichement based on double recovery and the common fund doctrine - to mitigate this harsh result.
The Court in McCutchen found that this was a contractual matter and that the plan terms overrode any possible equitable principles, as long as the terms of the plan were clear. Although the reimbursement clause was clear with regard to U.S. Airways being able to collect the full amount it previously payed out in medical expenses and therefore equitable theories of unjust enrichment were unavailable, the plan was silent on how attorney fees should be split be McCuthchen and the company. Thus, the majorty five Justices applied the common fund doctrine to require U.S. Airways to ratably play its share of McCutchen's attorney fees.
Few take away points from McCutchen:
1) It would seem, a la Firestone, that plans henceforth could write their reimbursement clauses in their plans to make clear that the common fund doctrine does not apply and companies are not responsible for attorney fees. That would mean, without equitable principles available, participants like McCutchen could actually end up coming out behind after suing the third-party for their injures. As other have pointed out, however, companies may think twice before adding such language to their plans for fear that attorneys will not take such cases and/or participants will just not decide to sue the third-party since they would be worse off if they did.
2. It is strange that the Court that has gone previously out of its way to say that ERISA is imbued with trust law, would treat this issue as a purely contractual matter. The Court, in deciding the standard of review in denial of benefit claim cases in Firestone and Glenn, came to the exactly opposite result and found that trust law principles applied. Although Firestone was a 502(a)(1)(B) denial of benefit plan case and McCutchen is a 502(a)(3) claim for appropriate equitable relief under the terms of the pan, both provisions have been historically construed with trust law in mind, not contract law. Of course, trust law would have more likely provided the equitable remedies that McCutchen was seeking.
3. Applying contract principles seems particularly unfair in this context because employee benefit plans are essentially adhesion contracts. Not only are participants unlikely to understand and know about such reimbursement clause provisions in their benefit plans, but even if they do, they would not be able to negotiate in any meaningful way with their employer over changing the terms of the plan. This is a true take-it-or-leave-it proposition. This is why contract law is unsuited to 502(a)(3) for appropriate equitable relief and why trust law, given that the funds are placed in trust for the benefit of participants and beneficiaries, is the far better and appropriate model.
So, McCutchen seems wrong to me on many levels. What is depressing is not only that the usual Justices are aligned against ERISA plaintiffs, but normal allies of plaintiffs on the Court just don't seem to understand the consequence of their decision in a case like this. In short, ERISA continues to baffles the Supreme Court.
All this does not bode well for ERISA plaintiffs in the case the Supreme Court granted cert in last week, Heimeshoff v. Hartford. This case concerns when the statute of limitations should begin to run in a case where a participant seeks disability benefits under an employer's welfare benefit plan. ERISA only has a statutory SOL provision for breach of fiduciary claims, and courts usually look to state law analogs to find SOLs for denial of benefit claims like this one. However, the issue is not what the appropriate SOL is, but rather, when does that SOL begin to run?
Heimeshoff had been a Wal-Mart employee for nearly twenty years. In 2005, she filed a claim for long term disability benefits as a result of various ailments caused by fibromyalgia. Hartford’s plan provided that its three-year limitations period ran from the time that proof of loss was due under the plan. Here, even accepting Heimeshoff’s arguments, the latest she could have filed a proof of loss was in September 2007, and she did not commence her lawsuit until November 2010.
The Second Circuit concluded that Connecticut law permits parties to an insurance contract to shorten the state-prescribed statute of limitations, and also permits the statute of limitations under an ERISA plan to begin before a claimant can bring a legal action. Accordingly, it held that the district court had properly dismissed Heimeshoff’s claim as untimely since she had filed her lawsuit several months after the three year period had expired.
The Supreme Court agreed to address the following question: “When should a statute of limitations accrue for judicial review of an ERISA disability adverse benefit determination?” According to the petition, the Circuits have not uniformly answered this question.
This is really an interesting question from a number of different stand-points:
1. From a preemption standpoint, it would appear that state law would apply, and override Hartford's insurance language to the contrary, since this is insured disability plan subject to state law insurance regulations since it is a law regulating insurance under ERISA Section 514(a)(2)(A) and saved from ERISA preemption. In fact, it reminds one of the California notice-prejudice rule in the Court's UNUM v. Ward case from 1999 where the state law was found to be saved from preemption. Yet, the Second Circuit concludes that under Connecticut insurance law, an insurer can shorten the statute of limitations in an insurance contract; but the Second Circuit then says the question of when a statute of limitations begins to run is a matter of federal law.
2. If federal applies, as the Second Circuit suggests, the federal law would appear to be based on the ERISA principles that generally written terms of the plan should be enforced as written. Of course, this is why the Court ends up deciding that Heimeshoff's disability claim must be dismissed under the applicable SOL. This conclusion also resonates with the contract-based analysis in McCutchen which says equitable principles cannot override a clearly written benefit plan provision.
3. On the other hand, if state law applied under the preemption analysis above, it could be possible that different insurance laws from different states might provide that such provisions like Hartford's violate laws that require insurance companies to explain to participants when their claims need to be filed in court to challenge the plan administrator's decision. No such law seems to exist in Connecticut, but of course there would be a host of different regimes that would then apply, seemingly inconsistent with the uniformity which is desired for such plans under ERISA. Perhaps a DOL regulation on this issue would helpful.
The Court could certainly go in a number of different directions here, but given recent precedent, a contract-based approach may seem the mostly likely scenario, which means the Second Circuit's decision would be upheld.
Also, as friend of the blog Don Bogan (Oklahoma) pointed out to me: "I have never heard of a contract, which requires internal appeals/exhaustion of administrative remedies, to also declare that the SOL begins to run even before internals appeals are exhausted—if Connecticut has no statute or case law on that issue, then perhaps the Supreme Court should certify the case to Connecticut Supreme Court for resolution of what Conn. insurance law is or would be on that question."
Perhaps so. Stay tuned.
Thursday, April 18, 2013
Friend of the blog and comparative and international LEL expert, Susan Bisom-Rapp (Thomas Jefferson) has kindly provided the following guest post. It is an excellent analysis of this week's Supreme Court decision in Kiobel v. Royal Dutch Peltroleum. In it, she explains the labor and employment law ramifications of this important decision:
The Irony of the Supreme Court’s Decision in Kiobel v. Royal Dutch Petroleum
Susan Bisom-Rapp (Thomas Jefferson School of Law)
Although not a case involving workers’ rights, the April 17th decision in Kiobel v. Royal Dutch Petroleum was long-awaited by those interested in whether transnational corporations (TNCs) can be sued in U.S. courts under the Alien Tort Statute (ATS) for human rights violations perpetrated against foreign workers laboring abroad. Rather than answer the question initially directed to the Court – Does the ATS confer jurisdiction over corporations? – the Supreme Court addressed a different question: Whether and under what circumstances may U.S. courts recognize an ATS cause of action for violations occurring within another sovereign territory? In a fractured and somewhat muddy decision, the Court limited ATS cases, at least where the defendants are foreign corporations, the wrongdoing occurs outside the U.S., and the claims do not touch or concern the territory of the United States. Even so, the Court left open enough questions that on the day the decision issued, workers’ rights advocates confidently opined that there is still a subset of viable ATS cases that may be brought against TNCs.
Kiobel was brought by Nigerian nationals against Dutch, British, and Nigerian corporations, which the plaintiffs argued aided and abetted the Nigerian government in committing human rights abuses as the latter sought to suppress environmental protests related to corporate oil exploration. All nine justices agreed that the case should be dismissed but the four justices of the Court’s liberal wing (Justices Breyer, Ginsburg, Sotomayor, and Kagan) disagreed with the reasoning of the majority (Justices Roberts, Scalia, Kennedy, Thomas, and Alito). A liberal wing concurrence was consequently written. Complicating matters, Justices Kennedy and Alito each filed a separate concurrence, and Justice Thomas joined Justice Alito’s concurrence.
No matter how you slice it, the Supreme Court’s decision in Kiobel is a win for TNCs. The Kiobel case will not proceed, and the Court announced new limitations on ATS claims. Ironically, however, and despite the limitations imposed by the Kiobel majority, it is the majority opinion, written by Chief Justice Roberts, which leaves the courthouse door open a bit and will likely be used by workers’ rights advocates in subsequent litigation. Before explaining why, some background on ATS claims on behalf of workers is necessary.
The ATS, legislation enacted in 1789 and signed into law by George Washington, confers federal jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” It was not until 1996, however, that suit was brought against a corporate defendant. That case involved the oil company Unocal, which was sued for allegedly aiding and abetting abuses by the Myanmar military, including the use of forced labor, committed in connection with the construction of a natural gas pipeline. Although that case settled, subsequent ATS cases brought on behalf of workers include suits against: Bridgestone-Firestone on behalf of children and adults who work on Firestone’s rubber plantation in Liberia; Chiquita by the families of pro-union workers murdered by Colombian paramilitaries; Coca-Cola for the murder and torture of Colombian union leaders; Nestle, Archer Daniels Midland, and Cargill relating to the trafficking of Malian children into Cote d’Ivoire for work on cocoa plantations; and mining company Drummond, regarding its subsidiary’s alleged involvement with the torture and murder of Colombian trade union leaders.
In 2007, that last case, Romero v. Drummond Co., Inc., became the first ATS case against a corporation to reach trial. Although the jury ruled against the plaintiffs, many TNCs and their advocates viewed the case as making real what had until then been a theoretical threat of corporate ATS liability. The status of corporate ATS liability, however, is contested. There is a split in the circuits that the Supreme Court had a chance to resolve in Kiobel. Rather than do that directly, the Court addressed a different issue – the extra-territorial reach of the ATS in suits brought against any person, natural or juridical.
For the Kiobel majority, this is a simple case resolved by the presumption against extraterritorial application of a statute. That well-known presumption provides that where Congress has not plainly expressed its intent that legislation apply beyond U.S. borders, the statute does not apply extraterritorially. Since the spare text of the ATS does not address the reach of the grant of federal jurisdiction for tort claims brought by aliens, the presumption, by barring claims such as those in Kiobel, precludes U.S. courts from creating conflicts with other nations and interfering with foreign policy. That the tort claims mentioned in the ATS are those “committed in violation of the law of nations” does not, argued the majority, imply reach beyond our borders since violations of international law norms can occur on U.S. soil. Indeed, two embarrassing incidents involving foreign ambassadors to the U.S. occurred just prior to passage of the ATS. At the time, U.S. officials were concerned there might not be a sufficient forum for hearing those claims.
As for what it would take to displace the presumption, Chief Justice Roberts notes that all ATS claims must “touch and concern” U.S. territory with “sufficient force.” Somewhat tantalizing, he opines that “[c]orporations are often present in many countries, and it would reach too far to say that mere corporate presence suffices.” Picking up on all that the majority opinion leaves unanswered, Justice Kennedy’s one paragraph concurrence notes that “the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the [ATS].”
Rather than embrace the presumption against extraterritorial application, the liberal wing’s concurrence is driven by the principles of foreign relations law from which it draws international jurisdictional norms to determine when it is appropriate to apply U.S. law outside of U.S. territory. To that end, Justice Breyer, who wrote the concurrence, relies on the Restatement (Third) of Foreign Relations Law. The liberal concurrence argues that the statute provides federal district courts with jurisdiction not only when the torts occur in the U.S. but also when “the defendant is an American national” or “the defendant’s conduct substantially and adversely affects an important American national interest.”
While providing some useful language for workers’ rights advocates, there are two reasons I believe the liberal concurrence may be less helpful to them than the majority opinion coupled with Justice Kennedy’s concurrence. First, there may be a tendency among American judges to shy away from foreign relations law and the Restatement Third when they might easily make use of a presumption rooted in domestic law, and, I might add, that presumption is embedded in a majority opinion. Strategically, it may make sense for workers’ rights advocates to craft arguments using language that is familiar to American judges.
Second, Justice Breyer's example of “an important American national interest” does not track the fact patterns of the ATS corporate cases very well. His example is ensuring our country does not become a safe harbor for modern day pirates – those who commit heinous violations of international norms elsewhere and then seek safety on our shores. In the corporate ATS cases, the actual commission of human rights violations is rarely performed by the TNC in question. Gross human rights abuses in those cases usually have a direct connection to a foreign government. The corporate liability, if it were to lie, is vicarious. In short, the ill-fit of Justice Breyer’s example may limit the utility of the liberal concurrence leading to the irony that the more conservative majority opinion may ultimately be of greater use to workers’ rights advocates. The Kiobel decision was a disappointment for workers’ rights advocates but it was not as bad a decision as it could have been. The battle over corporate ATS liability continues, at least for now.
Tuesday, February 5, 2013
Michael Goldberg (Widener (Wilmington)) has posted a brief analysis in Labor Notes on the DC Circuit's recent decision in Noel Canning, which found the 2012 recess appointments to the NLRB by President Obama to be unlawful.
After discussing the decision, Michael points out that the combination of the lack of filibuster reform in the Senate and the narrow reading of what it means for there to be a "recess," means that the Board will have a exceedingly difficult time having its orders enforced until it has at least three Senate-confirmed members or the Noel Canning decision is overturned by en banc or US Supreme Court review.
This is because Section 10(f) of the NLRA allows any employer to appeal an adverse Board decision to the DC Circuit (which will find such orders to be null and void) and because it is unlikely that Senate Republicans will permit any NLRB nominee through, regardless of their merits, since they can effectively shut down a federal agency they have no love for by not confirming anyone.
Labor relations law in the United States has reached Kafka-esque proportions.
In any event, read Michael's entire Labor Notes piece.
Michael Zimmer (Loyola-Chicago) and Sandra Sperino (Cincinnati) are currently drafting an amicus brief to be filed in University of Texas Southwestern Medical Center v. Nassar. This case addresses mixed motive issues in Title VII retaliation cases, and it is a pretty important issue. Michael and Sandra are interested in hearing from anyone who would like to comment on drafts of the amicus or who would be interested in signing or considering signing on to the finished brief. Please email Sandra at firstname.lastname@example.org if interested.
Thursday, November 29, 2012
From the Executive Summary to Decoding the Fiscal Cliff:
The waning days of 2012 and of President Obama’s final days of his first Administration provide him and the Democratic and Republican leadership of the Congress a unique challenge to resolve what has become the most critical domestic problem of the Nation, averting the fiscal cliff. To do so will require them to achieve what they have been unable to accomplish in his entire initial term in office, namely, overcoming sharply contrasting philosophies of government regarding the issues that underlie the fiscal cliff, i.e. tax policy and government expenditures. Solving the problem is further compounded by what had become a mantra of the President in his bid for reelection, taxing the rich more heavily to minimize cuts in programs benefitting the middle and lower classes. The argument of this article is that there are already enacted a considerable number of new tax measures that will begin to fall in 2013 only on the very taxpayers who are in the President’s target area, thus accomplishing Obama’s goal and greatly reducing the principal obstacle to the negotiators averting the fiscal cliff.
Surely not every one will agree with this line of argumentation, but it is a provocative commentary that deserves scrutiny.
Wednesday, November 7, 2012
In light of President Obama's resounding re-election victory last night, and other developments in political races down the ticket, here are some of my initial thoughts on what might happen in labor and employment law area during a Second Obama administration:
First, I think the verdict is still very much out on whether there will be any significant changes regarding labor and employment legal initiatives in President Obama’s second term. It is interesting that the President did not spend too much time during the campaign, or in his victory speech last night, discussing worker rights or unions.
On the one hand, the Congress remains bitterly divided between the two parties which means that labor law reform in the form of the Employee Free Choice Act is highly unlikely, as well as updates to the employment discrimination laws, like adding sexual orientation as a protected classification under Title VII or addressing “qualified individuals” under the Americans with Disabilities Act. I also do not envision major changes to the FMLA or OSHA in a second term, though I suspect there will be additional attempts to amend the Equal Pay Act by trying to get the Paycheck Fairness Act passed.
On the other hand, there will be plenty of room for agency decisionmakers to work on the margins and within their own domains. On the employee benefit law front, I see significant developments concerning the promulgation of a broader definition of fiduciary status under ERISA and the promulgation of regulations regarding life income options under 401K pension plans. There might also be legislation addressing the current funding crisis surrounding multiemployer (Taft-Hartley) pension and welfare benefit plans. Of course, a second Obama administration will also mean further development of regulations under the Affordable Care Act (Obamacare), including those that impact the provision of employer-provided health benefits.
On the traditional labor front, I suspect that there will continue to be controversy over the selection of NLRB members. Nevertheless, expect an Obama Board (members continued to be recessed appointed) to continue to push for new election and posting rules, the development of more social media guidance, and the reconsideration of some important labor law issues (including issues involving the status of graduate assistants under the NLRA, employer captive audience meetings, and the Weingarten rights of non-union employees). The EEOC, for its part, may continue to consider a host of issues involving everything from LGBT rights to the steps necessary to accommodate the disabilities of employees.
So, expect much of the same as far as labor and employment law in a Second Obama term. Not much legislation, with most important developments happening through federal agency adjudications and rulemaking.
I should add two more notes. First, the United States Supreme Court could go through a fundamental change depending on which Justices leave the Court in the next four years. If President Obama is able to appoint a left-leaning bench, you might see many more pro-employee judicial decisions in areas as diverse as the class action treatment of employment discrimination claims, to the extent and nature of relief available under ERISA, to a reconsideration of burden-shifting proof schemes under Title VII and related employment discrimination laws.
Second, my analysis does not touch on the many labor and employment law developments that will likely happen on the state and local level. There was a decidely mixed bag for state-level developments in labor and employment law last night (see California and Michigan, for example). I would suspect that we will see many developments on the non-federal side of things revolving around everything from right-to-work legislation to public pension reform to attempts to restore/take away collective bargaining rights of public sector workers.
In any event, just my two cents and stay tuned!
Monday, November 5, 2012
Friend of the blog, Steve Rosenberg, has an interesting post up on his blog, Boston ERISA and Insurance Litigation Blog entitled: Notes of The John Marshall Law Review's Special Edition on "The Past, Present, and Future of Supreme Court Jurisprudence on ERISA.
As Steve notes, "I think it is notable in this regard, and possibly causally related, that several of the authors are practicing lawyers who focus on ERISA litigation." He points to articles dealing with the Moensch presumption (i.e., addressing fiduciary obligations with regards to holding employer stock in a benefit plan), the recent Supreme Court Amara court case concerning the scope of equitable remedies under ERISA, and the role of summary plan descriptions (SPDs) after Amara.
Steve is right that all of these topics are of current importance to ERISA litigation, and like Steve, I look forward to having the opportunity to read all of the John Marshall Law Review Articles in more detail.
Friends of the blog Angela Onwuachi-Willig (Iowa) and Rebecca Lee (Thomas Jefferson) write about the joint newsletter for the AALS sections on Employment Discrimination and Labor and Employment Law. Here is their call for submissions:
We are putting together a joint annual newsletter for the AALS Section on Employment Discrimination and the Section on Labor Relations and Employment Law, and we need your help as readers and section members. Please forward this message to any and all people you know who teach or write in the Employment Discrimination, Labor Law, and Employment Law fields.
First, if you have news of any faculty visits, lateral moves, entry-level hires, or promotions and tenure not included here (http://lawprofessors.typepad.com/laborprof_blog/2012/04/workplace-prof-moves-for-2012-2013.html), please e-mail that news to Angela Onwuachi-Willig at email@example.com.
Second, please e-mail Angela Onwuachi-Willig at firstname.lastname@example.org with any information about conference announcements and calls for papers, employment or fellowship opportunities, honors and awards, and reports on recent conferences or other events of interest to the two Sections' members.
Third, we want to include a list of relevant employment or labor law-related publications published in 2012; please hold your forthcoming 2013 publications for next year's newsletter. These publications can be books, articles, and chapters. Please also send a list of your published 2012 articles to Angela Onwuachi-Willig at email@example.com.
Fourth and finally, we want to solicit anyone who would be interested in writing a brief description of a recent "big" labor and employment case or significant new labor or employment legislation. Your subject could be a Supreme Court decision (but it does not have to be), a significant circuit court decision (or emerging circuit split), a state supreme court decision, or an innovative and potentially influential new federal, state, or local law. The description should be fairly short (under 2 pages). If you're looking for an easy way to get your name out there or want a quick outlet for your ruminations about a case or new law, this could be a good opportunity. Just let us know what you are interested in writing on. Please send submissions to Rebecca Lee at firstname.lastname@example.org.
Please send all submissions by November 18, 2012.
November 5, 2012 in Commentary, Conferences & Colloquia, Employment Common Law, Employment Discrimination, Faculty Moves, Faculty News, International & Comparative L.E.L., Labor and Employment News, Labor Law, Pension and Benefits, Public Employment Law, Religion, Scholarship, Teaching | Permalink | Comments (0) | TrackBack (0)
Thursday, October 11, 2012
From our friends at the American University Labor and Employment Law Forum comes this insightful analysis on why the Alberta Labor Relations Board declined to take jurisdiction over the NHL Lockout dispute.
Here's a taste of the blog post:
After a hearing on September 21, 2012, the [Alberta Labor Relations] Board determined that because the NHL and the NHLPA have “never established definitively which jurisdiction’s labour laws govern their relationship,” thus “even if the Board has jurisdiction to declare the lockout unlawful, it should not exercise its discretion to do so [in the heat of a strike or lockout.]” And grounding its decision in a public policy argument, refused to make any kind of decision on the issue and dismissed the NHLPA’s application in its entirety.
Alberta's decision is consisent with the decision by the Quebec Labor Relations Board to not intervene in the onoing labor dispute between the NHL and its players (though the Quebec Board indicated that it still might have more to say on the matter and did not dismiss the case). In any event, a read of the whole linked-to blog post is well worth the time. As a die-hard Flyers fan, and like my friends at American, I am also missing the normal beginning of the hockey season today.
Thursday, September 20, 2012
Wendy Greene (Cumberland) has posted on SSRN her new article, Categorical Discrimination. From the abstract:
Fairly recently, the Pew Research Center conducted a survey of 3000 people in which 18 percent of the respondents stated that they believed President Barack Obama to be Muslim even though repeatedly he has expressly declared that he is Christian. This misclassification of President Obama’s religious identity underscores a common occurrence arising in contemporary workplaces: misperceptions of an employee’s religious, ethnic, and racial identity. As a result of these misperceptions, employees are alleging that they have suffered what this Article deems “categorical discrimination” — invidious, differential treatment — on the basis of religion, race, ethnicity and color in violation of Title VII of the 1964 Civil Rights Act. However, this Article exposes an alarming, inconspicuous movement within antidiscrimination law: a band of federal district courts are denying such individuals Title VII protection. Per these courts, a plaintiff, for example, who self-identifies as Christian, yet who is misperceived as Muslim and is harassed or terminated because of her employer’s misperception and related animus, cannot assert an actionable discrimination claim under Title VII. Though Title VII expressly bars discrimination on the basis of religion among other traits, courts have held that such a plaintiff’s claim of “categorical discrimination” is beyond Title VII’s scope. Accordingly, Title VII protection would only be extended if she is “actually” Muslim or if she brings forth allegations of invidious, differential treatment based upon her “actual” Christian identity. This Article delineates that, in so holding, courts have imposed an onerous and puzzling “actuality requirement” in Title VII intentional discrimination cases which engenders the unfathomable: plaintiffs suffering invidious, differential treatment animated by either their self-ascribed or misperceived protected status will be denied statutory protection against and relief for discrimination if they fail to “prove” their “actual” religious, color, ethnic, racial or gender identity when challenged.
With Title VII’s golden anniversary on the horizon, “Categorical Discrimination” is of great import, as it illustrates that courts’ imposition of an “actuality requirement” denotes the birth of an unorthodox interpretation of Title VII’s reach and meaning nearly 50 years after its enactment — an interpretative methodology this piece is first to describe as “anti-anticlassificationist.” This Article investigates the express as well underlying justifications for courts' idiosyncratic actuality requirement. Moreover, it highlights two unexamined, yet critically important implications of courts’ anti-anticlassificationist interpretation of Title VII: the emergence of a minimalist “actuality defense” for employers to appropriate and the reemergence of identity determination litigation in all intentional discrimination cases. "Categorical Discrimination" illuminates that courts’ excessively restrictive interpretation and attendant actuality requirement, indeed, resuscitate age-old trials of racial determination. Accordingly, this Article aims to quell the traction of courts’ actuality requirement in all cases of categorical discrimination and in doing so, breaks important ground by proffering intra-statutory support for the proposition that a showing of actuality is not required for Title VII plaintiffs to benefit from statutory protection. Notably, this Article also maintains that the Supreme Court’s recent opinion in Thompson v. North American Stainless, LP postulates a more cohesive conceptualization of Title VII protection for all individuals alleging categorical discrimination at the hands of covered employers on the basis of race, color, sex, national origin, and religion. Regardless of whether a plaintiff claims that the invidious, differential treatment suffered derives from her “actual” or “mistaken” religious, gender, ethnic, racial or color identity, Title VII protection and potential relief should be afforded. Either framing of an intentional discrimination claim unequivocally “falls within the zone of interests” Title VII seeks to protect. Moreover, a plaintiff under either circumstance is an “intended victim” of an employer’s invidious, differential treatment, and thus, is a “person aggrieved” by an employer’s alleged categorical discrimination on the basis of Title VII’s proscribed characteristics.
Timely and interesting!
Friday, August 17, 2012
Friend of the blog, Alvin Lurie, has a guest commentary up over at Benefits Link entitled: A Nonpartisan View of the Uncivil Wars Over Health Care Law and How They Have Affected the Three Branches of Our Government, Particularly the Self-Inflicted Wounds of the Supreme Court.
From the Introduction/Apologia:
The author has attempted in this piece to present an objective "big picture" of what he has called an "uncivil war", and to cast a spotlight on some of its chief consequences for the main instruments of our government. His interest is not to shake these key pillars of our system per se, but to show the effects of their actions on the state of our society. This is not a Democratic issue or a Republican issue, but a National one. It is not a question of whether you like Obama or not. The author asks the reader take off his or her party-tinted glasses and to consider this matter as an American, that is to say as a nonpartisan. That is asking a lot, because most people come to this issue with a political predisposition. The matter of health care for America is too important to let politics get in the way. The medical books do not list "Democratic Diabetes" or "Republican Rheumatism."
The reader is cautioned not to mistake the term "nonpartisan" for "neutral." The author has strong views on many of the subjects touched upon in the lines that follow, as will quickly become apparent. The reader may detect biases in some of the author's comments, to which the only honest response would be, in legalese, nolo contendere. But the author's biases are not grounded in political allegiance to either the Democrats, who passionately support the Affordable Care Act which their votes enabled to become what has been called the President's "signature legislative achievement" of his term of office, or the Republicans, who perhaps even more passionately have fought the law by not having cast a single vote for its enactment and who have vowed to repeal it root and branch when and if they gain the requisite votes in Congress—with or without a little help from the man then occupying the Oval Office.
It is said as this piece is written that the vote in November is now too close to call. Just as close would be a vote by the public at this time as to which branch it least respects. That is not a good place for the country to be now. Our course going forward in these difficult economic times will be difficult enough if we all pull together on the things that matter (admittedly a near impossibility in an election period). But the piece that follows has been composed in the hopes that it will supply information about adoption of the health legislation and the Supreme Court's decision upholding the law that is not readily accessible to most readers and, in so doing, thereby provide open minds with food for thought as a counterbalance to the sound bites that now drown out objective discourse on health care reform.
Read the whole thing. A very interesting take on an extremely important issue facing the United States in the coming years.
Jeff Lipshaw (Suffollk) has a very thoughtful post at The Legal Whiteboard, cross-posted at the Legal Professon Blog on the debates surrounding the future of legal education. Here is a bit (you should read the whole thing):
One of the false dichotomies I've observed over the course of a long career in and out of academia (more out than in - twenty-six years of law firm and in-house, managing, hiring, firing, etc.) is the view that the world divides up neatly into gods and demons. [the current debate shows the] perfect storm of deification and demonization when in the face of increasingly scarce resources (see Jerry's post), (a) there's a good old-fashioned turf war, (b) in law school, (c) at a time when all of the contending protagonists and antagonists feel the warm glow of victimization and justification.
. . .
The ability to learn is what mediates the perfect storm of self-interest, advocacy, and justification. But that's a higher order process because it means thinking about why you are thinking what you are thinking. Or, in other words, it means having a disposition in which you are at least sometimes amenable to the possibility that the way you are putting order to chaos may be affecting your conclusions.
Underlying these observations is the recognition that we have to critically reflect on both what we have and how we think things ought to be. Just because we believe it doesn't mean we are right.
Wednesday, August 15, 2012
My post last Friday promoted a lot of comments, and I appreciate very much all of the people who took the time to read the post and think about the points in it. So many readers commented that the blog won't display them all, and we haven't been able to get that glitch fixed yet. So, I'm reproducing the ones that don't show in the original post here. We lost any formatting you might have done, but I'm guessing at what it would have been. To comment on these or the prior post or comments, comment to this post.
Jeff Hirsch said:
Here' the most thorough study I'm aware of on the scholarship-teaching connection. Quick take, there's little to no connection between the two. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=913421
The problem with studies that use existing tenured faculty is that all such faculty (except perhaps the very oldest) were hired under the status quo criteria. Among such a pool, both scholarly output and teaching output are largely correlated with continued enthusiasm and engagement post tenure. You are essentially simply comparing the dynamic members of the faculty with those who have checked out. To properly study the question the comparison group would need to have comparably compensated and supported teachers who were hired, tenured and evaluated based on thier accomplishments in the classroom. If this latter group underperformed in the classroom as compared to those hired under the status quo then those advocating an inextricable link between scholarship and teaching would have powerful data. I don't expect any such experiment to take place, because it would be too high risk to the dominant ruling class.
Orin Kerr said:
Nancy Leong writes: Howard mentions that he has seen a correlation between good teaching and good scholarship. I tend to agree. Of course this sort of thing is very difficult to measure empirically, but I am familiar with data from two different institutions (not necessarily my better evaluations. Of course there are all kinds of limitations to these data, but I mention them as one item in a suite of measurements that own) that found a strong correlation between scholarly output and student evaluation scores -- that is, more productive scholars tend to get schools might consider examining internally as we think through the important issues that Marcia has raised.
FWIW, an empirical study by Prof. Ben Barton found no correlation between teaching and scholarship: This empirical study attempts to answer an age-old debate in legal academia: whether scholarly productivity helps or hurts teaching. The study is of an unprecedented size and scope. It covers every tenured or tenure-track faculty member at 19 American law schools, a total of 623 professors. The study gathers four years of teaching evaluation data (calendar years 2000-03) and correlates these data against five different measures of research productivity/scholarly influence. The results are counter-intuitive: there is either no correlation or a slight positive correlation between teaching effectiveness and any of the five measures of research productivity. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=913421
David Yamada said:
I really appreciate this exchange. I'm going to offer a few points as an omnibus response and then be quiet.
1. THE ATM ISSUE/ELITE SCHOOLS -- Let's get back to the important question of universities using their law schools as ATMs. I think it's an arguably defensible practice at the elite law schools, whose graduates are still likely to command high salaries upon graduation, even if their options aren't as seemingly endless as during the heyday.
2. THE ATM ISSUE/REGIONAL SCHOOLS -- But the ATM practice is downright wrong, even immoral, at regional law schools where even the successful job seekers are getting law firm job offers in the $30-60k ranges. I'm going to guess that many regional universities that drain their law schools dry are run by high-ranking administrators and boards who have been allergic to fundraising work for a long, long time.
3. IF YOU CUT THE SUBSIDY -- Let's say a regional law school is being taxed 20 percent of its tuition revenue by the parent institution, a middlin' figure. If you cut the figure to "mere" tithing (10 percent), you could cut law school tuition by 10 percent without skipping a beat. At a law school charging, say, $35,000 tuition, that 10 percent cut would result in roughly $10,000 less in student loans per student over a 3 year program. In other words: Why aren't we talking more about the ATM issue as part of the financial crisis in legal education?
4. FACULTY PAY -- Likewise, professors at regional schools shouldn't expect to earn what colleagues at elite institutions pull down. In the competition for candidates with elite credentials, some regional schools are breaking the bank and the morale of current faculty to attract candidates who "just missed the cut" at Top 15 Law, and I think it's a huge mistake. That said, the now-standard bashing of the "six-figure salaries" is a bit overdone, at least when it comes to folks 10-20-30 years out of law school. These days, a low six-figure salary is not unusual for lawyers with a decent chunk of seniority, especially in expensive metro areas. At my school, the median salary for a full professor is just above the starting salary for a BigLaw associate, although there are HUGE variations that I won't get into lest I start throwing things.
5. SCHOLARSHIP AT REGIONAL SCHOOLS -- We should recognize that regional schools cannot copy the compensation systems and work expectations of elite schools without some monstrous tradeoffs at the expense of their students. That said, all law schools are graduate-level professional schools, and there should be room for professors at those schools to contribute to the world's knowledge through scholarly work. Modest research stipends aren't the reasons for the financial crisis in legal education. I speak as someone who entered the academy attracted by the opportunity to teach, originally regarding scholarship as something of a chore in order to secure my job. Now, I have a strong appreciation for both, as well as for pro bono service. It's about balance, not all or nothing. Good teaching and good scholarship are not mutually exclusive, and in fact can be complementary. David Yamada Suffolk
Mitchell Rubinstein said:
This is cross posted from Ryan's website. Ryan: This is a great idea. I have two comments. First, I would not use data from Rate My Teachers. Rather, I would try to get data from the law schools themselves. A much better comparison would be to compare adjunct prof rankings to FT prof rankings. I think you know my thoughts. I cup of coffee says that the adjuncts will win every time at every law school. I am going to cross post this on Workplace Prof Blog. Mitch
"troubles me too because it seems to already presume that some things may not have value unless they are easily commodified." I suggest that the Professor's students place this common self-serving sentiment on the tuition checks that they write to the Professor's law school - at 10% of the demanded tuition price. Posturing profs like these (probably a majority of the profession) only talk about "priceless" things when they are ones cashing (not writing) the checks.
Alex Reinert said:
I think it is pretty difficult to make the kind of connection between teaching effectiveness and faculty experience that people are looking for (on either side of this debate). Mostly that is because I do not think student evaluations are a very good indicator of teacher quality -- they might be a good indicator of some elements of teacher quality, but if so I think they are very limited. More troubling to me is comments like the most recent from AnonProf, which seems to equate anti-intellectualism with a concern with training in the practice of law. Maybe AnonProf did not mean to imply that training students how to practice is somehow less intellectual than training students how to engage with complex theoretical concepts. But to the extent that AnonProf did, I think it is an unfortunate byproduct of the general lack of practice experience that most professors have. Basically, everyone wants to justify their own bona fides, so practical experience must somehow be marginalized as anti-intellectual by those who are steeped in high theory, and theory must somehow be marginalized as irrelevant by those who have principally practiced. It all seems like a false choice to me. I happen to think it is embarrassing that my six or so years of practicing law (with some continued forays after joining the academy) is considered to be a lot by some law professors. And I think that for some classes (Civil Procedure comes to mind), it is valuable to have at least some professors who actually have stood up in court, drafted pleadings, etc. That said, practice experience is not essential to being an effective professor, even in a course like Civ Pro -- it can help, but it is far from sufficient or necessary. Similarly, it is important to have professors who are well-grounded in theory, especially when they care about connecting that theory to decisions that lawyers make every day. But theory is not so mystifying that one is disabled from engaging in it by virtue of having stepped into a courtroom one too many times. So it would be nice if we could stop the sniping -- I get that many law schools have tended to favor the theoretical frame over the practical one, but I don't believe that reversing that trend will solve our problems. I think what we are generally lacking in law schools, regardless of who is teaching our students, is good measures of how well we are communicating to our students, and how much what we do in class is of assistance to them as they prepare for their careers (clinical teaching may be an exception, at least when it is done within the difficult pedagogical framework that most good clinicians aspire to). I don't think that makes me an anti-intellectual; I want to be an effective teacher, and if we think that we can be effective without caring about what our students are going to do after they graduate, we are in a sad place. As for medical scholarship, AnonProf, it has always been my perception that the gap between theory and practice in medical schools is much narrower than it has been in law schools. My understanding, limited as it may be, is that the professors at medical schools are both experienced practitioners and researchers -- and medical research is often informed by practical experience at least as much as abstract theory.
Respectfully, I think the biggest problem with the quality of legal education stems not from the differing background of the professors but from the mere quantity of professors. Simply put - there are too many law schools and too many professors. Inevitably bad professors are hired simply to have a body to put in front of students to charge them admission. There's much talk about concern for the students getting a proper education and beginning a prosperous legal career, but the actions point instead to concern truly lying on the school being prosperous. And why not? The old wisdom is that, when it rains, you line up buckets, and right now it's raining law school application, so schools are lining up professors to teach them. Which, of course, is a disservice to the student. A shrinking market, reduced wages, lengthier partner tracks, "alternative tracks" that don't lead to partner at all, and more and more schools opening with more and more sections of students. The questions you should ask yourselves aren't "what value does my work add to society" or "what value do law professors as a whole add," but "what value will my students add, what value does my school add, and what value will my students receive?" Odds are the profession would be stronger if most of the schools represented in this thread went belly-up.
"With research emphasized, law profs are people who were at the top of their class from a good law school and presumably could have become $800/hour attorneys but chose not to." Lol this is the biggest myth around. Yeah you probably could have gone into biglaw and worked your way up to $800 per hour IF you were willing to work the hours, deal with the stress of a supervising attorney, and the demands of the clients. Most attorneys leave biglaw within the first five years for these reasons. The argument that your law professor salary is meager in comparison to that biglaw partnership you could have had is ridiculous. Becoming a biglaw partner takes a ton of work and a lot of luck. And even if you "win" the big money you still lose by having a miserable life. When TTT's like SLU shut down because they can't fill their 1L classes, we'll see how wonderful the legal job options are for experienced law professors. SLU increased tuition from $27,250 (04-05) to $36,440 (12-13). That's a 33 percent increase in eight years. You should be ashamed of yourself.
"Law school isn't vocational training. Nazi Germany's monstrous legal system also had its share of excellent practitioners. In law school, we teach social values, norms, and a host of other things unassociated with pragmatic exclusivity." Do you also teach them the law? Specifically, http://en.wikipedia.org/wiki/Godwin%27s_law "I'm always curious by these anti-intellectual arguments about law professors. I wonder whether the folks who hold them would also do away with philosophy, classics, English, and other liberal arts programs that are not pragmatic and are areas few people get jobs in. After all, most undergrads will in the end get non-theoretical jobs. Doing away with theory in law school would have the same harmful effect on students and society as a whole as doing away with it in undergrad would have. I'm just glad the vocational training mentality hasn't taken root; otherwise, the result would be shallow lawyers. This is particularly true of students who haven't had the benefit of a liberal arts education, like engineers, who can be excellent lawyers but need to learn analysis and rigor that scholars can provide."
I'm a recent law school graduate of a top school and can tell you where my newfound anti-intellectualism comes from. Before law school, I never gave much thought to the anti-intellectual opinions that pervaded my family and community. I thought cries of "limousine liberalism" were overblown and baseless. Then I went to law school. And I saw professors speak in one breath about "social justice" and progressive ideology and in the next breath raise my tuition by 1-2K per year in a deep recession and tell me "you signed the contract" and "can just drop out if you don't like it." I saw law schools engage in conduct that is arguably fraud and defend their behavior with "caveat emptor." Standards of conduct professors would decry when done by banks or corporations, such as counting on people to make irrational decisions on incomplete information, were ignored or accepted when done by their own institutions for their own pecuniary benefit. This is why people don't like you, not because they don't share your values. It is because when push comes to shove, you are no better than anyone else. This would have been amusing, but for the fact that I took out about 110K in debt and am about to spend the next 30 years of my life in a profession that had taken a MASSIVE reputation and prestige hit because of your actions. Just today I talked to a recent BA holder working at a coffee shop who told me she would never go to law school because it costs too much and she personally knows graduates with high debt and no job. The quoted argument is an especially frustrating one. Rather than engage in the necessary value analysis from the perspective of the student, you would suggest that because theory adds SOME discernible value, that justifies whatever you charge. Unfortunately, that is not the case. Most people go to law school to get jobs as lawyers. That gives you some freedom to teach theory, for as long as people are getting jobs as lawyers, you can pretty much teach whatever you want. But the flip side to this is that when the jobs disappear, or when the cost becomes to high to justify the expected starting salary, students will abandon the effort. This discussion itself is part of the problem. The simple fact is that there are too many law students and they have too much debt. If law schools graduated fewer law students, and the decision to go to law school was not financially ruinous, you could stand on your head and read 50 Shades of Grey all day for all I care. You should be focusing your efforts on how you would structure a law school with 50% of current enrollment that charges around 15K per year.
Monday, August 13, 2012
Ben Sachs (Harvard) has an interesting and important commentary up at The Atlantic Monthly's Wire entitled: Corporate Shareholders Deserve Equal Rights on Campaign Finance.
As the 2012 election season rolls forward, campaign cash is taking center stage. And when it comes to money in politics, the debate seems inevitably to end in a fight over the Supreme Court’s Citizens United decision. Many believe Citizens United unleashed new torrents of spending. Others think the decision merely nudged along an escalation that was occurring anyway. But we’re all missing a central feature of Citizens United that will have a major impact on the balance of political power in the country, in 2012 and beyond.
Here’s the issue. The conventional wisdom is that Citizens United treats political spending by corporations and labor unions equally. And, as a formal matter, the case does free both groups to spend their general treasuries on politics. But the freedom that the Court’s Citizens United decision gives to corporations and unions alike, other cases take away from unions alone. The result? A legally constructed advantage for corporations over unions when it comes to politics . . . .
What should be done? Many approaches are possible, but one promising strategy – and one that would have the virtue of treating these political spenders equally – would be to take the opt-out right currently available to employees and offer it to shareholders. It would work like this: When you invest in a corporation — either directly or through a mutual fund — you would be given the right to object to spending corporate assets on politics. The firm would then figure out what percentage of its overall expenditures go to politics, and return to you your pro-rata share of these expenditures (depending on how many shares you own) in the form of a dividend. Since unions have faced a similar obligation for decades now – they have to divide all of their expenditures into political and non-political, and then reduce the dues payment of objectors accordingly – we could look to the union example as a source of guidance when crafting and administering the corporate rule. (If the Supreme Court were ever to require private sector unions to secure employee opt in to union political spending — as an aggressive extension of the Knox decision might entail – then corporations should similarly be required to secure shareholder opt in to corporate political spending.)
With the recent decision in Knox v. SEIU, many (including Matt Bodie on this blog) have weighed in on the difficulties union have in keeping up with the political spending of corporations. Ben has been front and center in this debate, both in law reviews and other commentaries, and makes a persuasive argument that corporate shareholders should have similar opt-out rights as dissenting union members.
Read the whole thing. This is going to be an on-going debate for many months and years to come and an essential issue if unions are to flourish in the American public and private-sector.
Friday, August 10, 2012
UPDATE: There are so many comments that the blog hasn't been displaying all of them. To comment on this post or its comments, click here to the Comment Glitch post.
It is extremely rare that we engage in navel gazing on this blog, although we do talk about university and law school employment issues on occasion. Each one of us also rarely promotes our own institution or own work, instead leaving it to our co-editors or to others entirely, but I'd like to make an exception to those cultural norms given some of the extraordinary things going on connected with people at my own institution, Saint Louis University School of Law, or SLU. And before I begin, please note that the contents of this post reflect only my own views, not those of my co-editors, my school, my colleagues (all of whom are fabulous teachers, scholars, mentors, administrators, and people), or our wonderful students and alums (who are smart, hard working, and will make or already are great lawyers).
I'm sure many of you have read about how our Dean, Annette Clark, resigned and you may also have read the letters she wrote to President of the University and to us, and his response to us and appointment of our new Interim Dean -- or at least read about them. You may also have read, like I have, some of the reactions to these letters and actions. This controversy is not the only one that touches people connected to SLU. Jeff just posted about the recent Sixth Circuit case concerning my colleague Lynn Branham, holding that tenure provided no job protection unless it was defined in the annual contract between the faculty member and the school. Both of these developments show us that even those with tenure in powerful positions don't necessarily have any job security or protection.
I'm not going to talk about the details of these events or the letters related to Dean Clark's resignation (I have strong feelings, but this is not the place to discuss those), but I do want to have a conversation (or contribute to an ongoing one) about how it all fits into bigger changes and what they might mean.
One of the most compelling pieces of this for every law professor, student, or person thinking about going to law school is the way these events are seen as having some relationship to the problems law schools and universities face right now: the high cost of higher ed. and especially law school, declining enrollments, declining financial support from sources outside of tuition, and the "worth" of earning a law degree. Above the Law (I'm sorry, I can't link to it because the comments give me Auto-Admit flashbacks) saw the resignation as resistance to university efforts to use the law school as a cash cow, and much of the debate in the comments there (shudder) and at least some to Paul Caron's initial post have focused on whether, to the extent the fight is over money, the money is for the benefit of students or faculty.
Implicitly, and sometimes explicitly, the message on one side is that if the money was to be spent on research stipends for faculty, that expenditure is not legitimate and should not be made by the law school (or the university) in the first place. Sometimes that's expressed as skepticism that any research actually is done, hostility that it should be separate from and in addition to the "regular" salary a professor earns, or hostility to the value of research period. In the events at SLU it has at least partially been suggested that those who engage in scholarship or encourage students to do so are not teaching students what the students need to learn. On the other side, there seems an unspoken assumption that research is not only a legitimate part of what a law school should do, but that it's imperative to engage in a lot of it. These themes resonate with the larger scamlaw narrative so popular at the moment -- and no links here either because I don't want to promote that narrative -- which has us "stealing" from students for our own selfish desires, or the more measured critiques by people who call our attention to the problems with the current "business model" of the law school.
Absent from all of this debate, at least what I have seen of it, is much real progress with the pressing issues that we individually and institutionally are all struggling with. In particular, what it is a law school should be doing for students, what they need to know or have mastered by the time they leave, who else is served who wouldn't be if we didn't exist, and how to structure it all to serve those constituencies. And of course I'm thinking of many of these things in employment terms (like job security and status) as well, considering that it's the kind of workplace I am in and because that's just how I see lots of things (hence the whole Workplace blogging). Increasingly, I'm frustrated by what looks like the same old dualistic tropes --teaching v. research, skills v. doctrine, doctrine v. theory, academic v. professional school, liberal arts v. technical education, tenured v. contract, at-will v. job security -- without digging into these labels or categories in the first place. And the rhetoric that puts what we do in business terms -- business model, deliverables, outcomes, opportunity costs, returns on investment -- troubles me too because it seems to already presume that some things may not have value unless they are easily commodified.
Anyone who has talked to me recently is already tired of hearing me say it, but I think each of us and each of our institutions needs to be able say what students and the public gain from what we provide and how. Fundamentally, if we can't articulate that, then why are we doing it? The next challenge will be to make our explanation explicit enough -- devoid of jargon and assumptions as insiders -- so that someone outside of our environment will understand, but we can't hope to get there if we don't start internally.
Here's my take. I think there is great value in legal scholarship. The public benefits by getting legal and government structures that make real people's lives better. Students benefit from the scholar's ability to turn chaos into order and communicate both the chaos and the order to someone who hasn't done the same work. The students have to start with order and see how it is constructed from chaos and how to explain that before they can learn to do the same thing, which really, is what lawyers do for their clients.
Teaching, of course, is vital, but teaching requires learning, and learning is not something that occurs within the teacher. Learning occurs inside the head of the student, and students have to learn, not just information, but more importantly to perform a process that is fluid and adaptable, and to master a number of difficult skills, internal and external. We can't just open the top of a student's head and pour in the learning. Most of the law professors I know and have worked with take this very seriously and constantly work at ways to accomplish this for their students who have different needs and abilities, but we don't talk much publicly on how we do that.
Finally, there are many ways in which different members of the law school community contribute to teaching and mentoring students, serving the public, and contributing to the growth of their professions. Those need to be identified, explained, and valued too.
I'll end here because I've rambled quite enough, but I see this debate also fitting into other debates right now, some of which only seem to have one side:
- the view that elementary and high school teachers are the enemies of students, obstacles to their education and lacking any expertise on how to help kids learn or what they should master;
- the debate over public employee pay and benefits;
- the debate over unions in both the private and public sectors;
- the debate over the worth of higher education;
- the push to marketize everything.
I'm sure I'm missing some, but in all of these debates, there are assumptions about value (to whom), cost, and support that are unspoken and unexamined.
Thursday, June 21, 2012
Cross-Posted at PrawfsBlawg by Matt Bodie (St. Louis/Notre Dame):
Earlier this week, the WSJ touted a new Manhattan Institute study showing that political contributions by corporations have a positive effect on the bottom line. The study found that "most firms, like most individuals, behave rationally and strategically in their spending decisions on campaigns and lobbying, devoting resources in ways that, they have reason to expect, will benefit the corporations themselves and their shareholders." And benefits do come, in the form of lower taxes, more favorable regulation, and earmarks that help the business. The authors calculate that these political benefits improve returns for shareholders by 2% to 5% a year.
It should not be a surprise that corporate political spending helps corporations. This recent study follows upon research by Jill Fisch on FedEx's political spending, which found that "FedEx has successfully used its political influence to shape legislation, and FedEx's political success has, in turn, shaped its overall business strategy." The WSJ uses the Manhattan Institute report to beat back critics of Citizens United who are looking to get corporations out of politics. The Journal opines:
Liberals have been trying to persuade CEOs and corporate boards to stop spending money on politics by claiming that it doesn't pay. But according to a new study by the cofounder of the Democratic-leaning Progressive Policy Institute, corporate participation in politics works for the companies and their shareholders. * * *
In a better world, corporations wouldn't have to devote money and time to politics. . . . But politicians have created a gargantuan state that is so intrusive that businesses have no alternative than to spend money to defend themselves and their shareholders from such arbitrary looting as the medical device tax in ObamaCare. Liberals want business to disarm unilaterally.
Oddly, neither the Journal nor the Supreme Court seem to understand these principles when it comes to unions.
In today's Knox v. SEIU, the Court again privileges the rights of represented employees to opt out--or rather, not to have to opt-out in the first place--from union political spending. The Court clings to the trope that the union's political spending is somehow extraneous to the core services provided by the union to the represented employees. But political spending is perhaps even more important to unions than it is to corporations. I have posted before about SEIU's electoral activity, but it bears repeating--SEIU spent an estimated $85 million to help elect Barack Obama in 2008. Although the Obama administration failed to get the Employee Free Choice Act passed, it did pass healthcare reform -- which was arguably more of a SEIU priority. (See Chapter 9 of this book by Steve Early, entitled "How EFCA Died for Obamacare"). Former SEIU President Andy Stern had the highest number of oval office visits of any outsider--22--during the president's first six months in office. Stern was not in there based on his individual perspicacity about the nation's various problems. He was in there as president of the fastest-growing union in the U.S. -- one whose members largely worked in the health care field and would benefit from an expansion of health care benefits.
Knox v. SEIU concerns a "Political Fight-Back Fund" levied against represented employees, including nonmembers, to fund political activities in California. Two propositions were on the California ballot: Proposition 75, which would have required an opt-in system for charging members fees to be used for political purposes, and Proposition 76, which would have given the Governor the ability to reduce state appropriations for public-employee compensation. In response to the petitioner's objection to the special assessment, an SEIU employee said, "we are in the fight of our lives," and it's easy to see the urgency. If you accede to the principles that (1) employees can choose as a majority whether to have union representation, and (2) all represented employees need to pay for their representation, then political spending should not be excluded. In an era where state governments are reconsidering collective bargaining rights for public sector unions, political spending is critical to the unions' very existence as businesses. Unions need to have collective bargaining rights in order to bargain collectively on behalf of represented employees.
The majority's opinion in Knox v. SEIU assumes the distinction between collective bargaining expenses and political expenses without much discussion, other than an interesting block-quote from a Clyde Summers's book review. (I would argue that all of Summers' examples don't really prove his or the Court's point.) And at this point, not even the dissent questions the Hudson framework. But it makes no sense. Unions and academics should start fighting the framework: unions are businesses, and political spending is business spending.
I did see one glimmer in the Court's opinion, in the following passage:
Public-sector unions have the right under the First Amendment to express their views on political and social issues without government interference. See, e.g., Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010). But employees who choose not to join a union have the same rights.
The Manhattan Institute report, like the Wall Street Journal, recognizes that corporations are not merely "express[ing] their views on political and social issues" when they make political contributions. They are fighting for their businesses. The Court should not continue to disarm unions unilaterally in a post-Citizens United world.
Wednesday, June 6, 2012
As one of the few labor law professors here in the State of Wisconsin, and as a close election watcher, I think it is incumbent upon me to give my two cents on the meaning of the Walker recall election for the labor movement in Wisconsin and in the United States.
Although Governor Walker survived the recall with a 53%-46% margin, there are a number of points I wish to emphasize:
1) First and foremost, the Citizens United decision played a huge role. Walker raised some $31 million for the recall (much from out-of-state billionaires like the Koch Bros) while Barrett raised only $ 4 million. Given the 8-1 disparity in spending, perhaps it is surprising that there was a not a bigger win for Walker. Also, these numbers belie the sometime allegation of conservatives that unions are raking in huge sums of cash through union dues. Citizens United primarily favors large corporate donors, plain and simple.
2) I think that the result might have been more about the recall process then saying anything about Walker's agenda or labor's future. Truth be told, a good segment of the Wisconsin electorate never bought into the idea that a recall was appropriate even if they were against Walker's policies (exit polls from Wisconsin show that 60% of voters think recalls are inappropriate except for malfeasance -- not just when you disagree with policies). Indeed, when one considers that 19% of Walker voters (according to exit polls) were planning to vote for Obama in November, that makes a lot of sense if one considers that people do not like special process elections like the one we had last night. So, in short, surviving a recall is not the same as winning an election.
3) Union voters came out in droves to vote (from 26% of electorate in 2010 to 32% of the electorate last night). Yet, and this is important, the labor vote was not monolithic. Some 36% of union voters (again, according to exit polls) voted for Walker. Many union members, especially those in the police and firefighter union are Republicans, so no surprise there. But there is anecdotal evidence tha some union members who did not approve of Walker's anti-labor policies, still voted for him in the recall, saying that a recall was not the appropriate process given the situation. Again, the recall may be more about people being against special process elections than anything else.
4) Silver linings? Two. (a) Obama did very well in exit polls (winning 45%-38%) among the voters. Although Obama has been far from a great President for labor, he is still a much better option for labor types than Romney; (b) the State Senate flipped back to Democratic control which means even though the Senate has no planned sesssions for the rest of the year, Walker will be unable to hold special sessions to discuss right-to-work legislation and other conservative agenda items. However, elections occur in Nov. 2012 again for all state assembly seats and some state senate seats, and the important thing for Dems will be to hold the Senate majority for Jan. 2013. If they can, Walker's agenda will be dead in the water for the last two years of his governorship.
5) What does the recall mean for Walker? Although some say he should be emboldened and bolstered by the victory, his victory speech last night sounded a conciliatory tone. Whether his words are sincere or they result from his realizing that he can't govern by fiat anymore, is anyone's guess. He also might recognize that he is very much the target of a John Doe investigation and still may be indicted. Either way, I doubt that he is a viable Vice President candidate given his pending legal issues, his polarizing nature, and the unlikelihood that Romney could win Wisconsin.
6) Finally, what impact, if any, does Walker's recall victory have on other states considering similar labor law reforms. Personally, I think the impact will be small. If anything, the lesson of Wisconsin is that one can get more bees with honey than vinegar. Although most of Walker's labor reforms remain in place (though legal challenges are still pending), Walker, and allied state Senators, have had to endure a year's worth of recall efforts that wasted their time and money. For other Governors contemplating similar changes, the lesson should be not to go Walker's route if they want to avoid the problems that he has faced. One also has to remember that the Wisconsin recall did not take place in a vacuum and that just last November, Ohio voters resoundingly defeated an anti-collective bargaining bill. So, I think the ripple effects will be miminal in other states from this recall, given the totality of results across the states, and we won't know for sure how aggressive GOP Republican governors will be on the labor front until the voters have spoken again in November.
So, in all, not a good night for Democrats and their labor allies in Wisconsin. A fatal blow? No. Unions, private and public, will live to fight another day. Union values are too important for many in Wisconsin and elsewhere in the country. And at the end of the day, 1.1 million Wisconsonites voted to recall one of the nation's most anti-labor, pro-corporate Governors in the country.
Am I making lemonade out of lemons? Perhaps. But it would be mistake to draw too many definitive conclusions for the labor movement or for the Presidential election in November based on the Wisconsin recall experience.