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Abstract:
This paper represents an initial effort to test, quantitatively, whether the class or collective action is a necessary vehicle for resolving employment disputes because typical claims are not valuable enough for individuals to pursue them on their own. Because most class actions ultimately settle, this study begins the process of evaluating the hypothesis by calculating the potential recoveries individual members of class actions are slated to receive in class action settlements as a comparison point for awards obtained in individual employment arbitration. Examining public data on employment class or collective action settlements, we find that with the exception perhaps of certain off the clock wage-hour and ERISA claims, the average individual potential recovery found was not an insignificant amount, though still generally smaller than the average employment arbitration awards. This result calls into question the negative value justification for the claimed superiority of class action litigation.

Much work needs to be done to determine if these potential recoveries would be obtainable in individual litigation or arbitration, or whether there is something special about the class action vehicle that makes possible such potential recoveries. We would also need to account for a selection bias in class action cases - that plaintiff lawyers may under-report less favorable settlements and are highly selective in picking cases for class action treatment. If so, the characteristics of individual and class claims may differ in systematic ways. In the interim, our data shows that potential individual recoveries for many types of employment disputes are valuable enough to place in question the arguments that these are negative value cases that will be brought forward, if at all, only through the class action vehicle.

class actions, employment law, labor markets, discrimination, empirical analysis

Abstract:
President Theodore Roosevelt was famous for remarking that one should "talk softly and carry a big stick." Justice Powell did not need a big stick, garnering long-term acceptance of his views by writing soft-spoken concurrences that served to limit the reach of broadly framed majority and plurality opinions. This paper focuses on Powell's ability to influence the path of the law through arguably precedential concurrences as opposed to withholding his vote from the majority and then dissenting. We examine cases during the 1975-1981 Terms when his vote was the fifth vote necessary to form a majority and when his was but the sixth or seventh vote; in our data set, the Powell opinion often was taken by lower courts as stating the holding of the Court. Powell's preference for concurrence and his position as the swing vote during much of his tenure on the Court allowed him to have a significant impact on future courts and cases, and may serve as a salutary example for judges on multimember courts.

Constitutional Law, Supreme Court, Judicial Behavior, Multimember Courts

Abstract:
A great deal of discussion and controversy surrounds whether Congress will enact the proposed Employee Free Choice Act (EFCA), a measure that would establish union bargaining authority without elections and allow arbitrators to impose first-time collective bargaining agreements where the parties are unable to. Comparatively little attention is being paid to what can be done under existing law. Whether or not EFCA becomes law, attention needs to be drawn also to how the National Labor Relations Board (NLRB), the agency responsible for enforcing our labor law, can better organize its resources to minimize the serious problem of administrative delay in holding elections and seeking court injunctions, use forms of rulemaking and advisory opinions to give parties better notice, and opportunity to participate in the formulation, of legal change, and recast existing approaches to give unions better access to the employee electorate once it is clear an election will be held and improve available remedies under existing law to deter employer violations. This paper develops an agenda for regulatory change at the NLRB.

Abstract:
The decline of unionization rates in private companies, while at an especially low point below 10% in the U.S., is a worldwide phenomenon, hastened by the emergence of global labor and product market competition. The dilemma for public policy is that while strong unions can promote worker voice and economic participation, they do so in a manner that harms firm performance where all companies competing in the same product market are not subject to the same union standards. Global markets make it increasingly difficult for unions to pursue traditional redistributive goals, bringing to the fore an alternative model of workplace representation that emphasizes pursuit of objectives that do not undermine firm profits. Although global labor standards are often suggested as a means of improving the ability of U.S. workers to compete on a "level playing field" with workers in other countries, this approach is not likely to succeed if developing countries are to pursue their competitive advantage as lower-cost producers. Rather, the path for U.S. public policy should be two-pronged: (1) strengthening the protections for workers seeking collective representation, while (2) removing disincentives in current institutional arrangements that retard the evolution of unions as integrative bargaining agents.

Labor Law, Competition, Global Labor Markets,Global Product Markets, Integrative Bargaining, Redistributive Bargaining

Abstract:
Employer reputational costs - that is, the loss in value of the firm's reputational assets if the firm reneges on its promises to workers, both express and implied, - has played an important role in the economic literature of employment contracts, but this factor has itself generated little sustained analysis. Reputation is often offered as a late-appearing deus ex machina explaining why opportunistic behavior by employers even in internal labor markets is likely to be relatively unimportant.

This standard explanation for the enforceability of implicit labor contracts in internal labor markets is problematic for at least three reasons. It assumes a well-functioning market in information about past and projected firm behavior, for a loss in employer reputation can only occur if job applicants from the external labor market are able readily to distinguish between "opportunistic" behavior (where, say, a termination of employment reflects an employer's reneging on implied promises of deferred compensation or late-career immunity from close monitoring of performance) and legitimate behavior (where a discharge reflects an appropriate response to shirking on the job or unforeseen business conditions). Second, the reputational-loss account is a static one; it assumes that employers in the first period (when they make the implied promise of deferred compensation or late-career job security) are in the same product market position in the later period (when they are expected to perform these implied promises). If the employer in the later period has disappeared, operates in a different product market, or has a need for workers with a different skill mix than in the first period, it will become even more difficult for job applicants in the external labor market to evaluate whether the firm's past behavior is a good predictor of their probable job experience with that firm. Finally, the explanation also makes certain problematic assumptions about how workers process information.

The deficiencies of the standard explanation require either a reconsideration of implied labor market theory, or if implied labor market arrangements remain economically desirable an identification and possible strengthening of institutions that might enhance the firm's reputational costs in breaking promises to workers.

Employment Contracts, Implied Labor Market, Reputation, Opportunism, Signaling

Abstract:
In Parents Involved in Community Schools v. Seattle School Dist. No. 1, 127 S.Ct. 2738 (2007), the Justices again divided 5-4, issuing impassioned disagreements over the extent to which public schools may invoke diversity as a compelling purpose for the use of racial classifications when making certain admissions and transfer decisions, and whether the plans under challenge were narrowly tailored to serve that purpose.

As long as analysis of racial classification cases turns on the familiar two-prong inquiry into whether government has asserted a compelling interest and, if so, whether, the challenged program reflects narrow tailoring, the Court's jurisprudence in this area will prove deeply unsatisfying and difficult to predict.

We customarily think of equal protection from the stand-point of preventing the state from visiting physical or other harm either directly through its instrumentalities or indirectly by withholding the customary protective force of the law and law enforcement authorities. But because the state can also violate equal protection by distributing goods and services or other valuable benefits or opportunities to members of a favored group rather than to those of a disfavored one - indeed, the classic concern over withholding of law enforcement resources is itself a form of discriminatory distribution of a government benefit - a better conceptual approach may be to think of equal protection as based on a principle of state neutrality or state non-preferment of members of one racial or ethnic group over those of another. I call this the non-preferment principle.

The non-preferment principle does a fairly good job of explaining the course of Supreme Court decision-making in this area. It also helps explain Justice Kennedy's critical fifth vote for the judgment in Parents Involved: Where the state acts through racially neutral means, there is no preferential allocation of government goods and services on the basis of one's race. There is, for example, no racial division of the spoils, no basis for constitutional concern when a magnet school is created in a poor neighborhood, even if turns out to be predominated by African-Americans or Hispanics; or if the top 10 percent of every high school class is automatically granted admission to the state university system; or if active recruiting for students takes place in economically disadvantaged neighborhoods. The key question is whether the opportunity is allocated on the basis of race or ethnic group status and is available on equal terms to all races and ethnic groups.

Under the non-preferment principle, there is also no warrant for strict scrutiny because the government classification is not based on race. Hence, one can avoid the conceptual awkwardness of recognizing an interest as compelling and yet declaring off-limits all direct means of pursuing the objective. One can deal affirmatively with the problem of equality through means that are consistent with government neutrality on matters of race and ethnicity.

constitutional law, equality, education, equal protection, race, affirmative action

Abstract:
We are now beginning to see a qualitative change in labor’s relationship to the state: trade unionism as a supplement to politics. Labor’s economic objectives have not changed; the means are undergoing change. The thesis of this paper is that largely in response to the deepening of competitive forces in private markets in the U.S. – from deregulation, changing technology and the opening up of global labor and product markets (due to decreasing transportation and communication costs and the lowering of trade barriers) -- organized labor increasingly will function predominantly as a political organization. Collective bargaining will continue to provide an institutional raison d’etre and critical funding source for unions but only one (and a diminishing one) of several means for advancing the interests of its members and other constituencies. This is not to suggest the emergence of a labor party on the European model; it is an American variant: the fortunes of the labor movement will become ever more tightly tied to the fortunes of the Democratic Party and economic goals increasingly will be achieved not at the bargaining table but through the provision of public resources.

Trade Unions, Globalization, Politics, Voluntarism, Labor Markets

Abstract:
In this essay, the authors analyze the Supreme Court's decision in Board of Trustees of the University of Alabama v. Garrett, where the Court last term held that the employment provisions (Title I) of the Americans With Disabilities Act were not a valid exercise of Congressional power under Section 5 of the Fourteenth Amendment. The authors argue that whether or not earlier cases from the Court in the 1990's construing Congress' section 5 power narrowly were correctly decided, the Court in Garrett makes a number of questionable analytic moves that demonstrate a disrespect for Congress' constitutional role in vindicating equal protection rights. In particular, the authors argue that the Court's treatment of earlier equal protection caselaw in the disability arena, its treatment of Congress' fact-finding record and the inferences Congress could draw from that record, and its treatment of who should count as a state wrongdoer for purposes of Congress' section 5 power are all unworthy of the Court.

Abstract:
The article seeks, first and foremost, to demystify conceptions concerning the Section 5 of the Fourteenth Amendment power of Congress. Properly understood, Section 5 enactments raise no issue of separation of powers. The infirmity of the statute struck down in City of Boerne v. Flores, 521 U.S. 507 (1997), was not due to its provenance in Section 5. Rather, the statute sought directly to enlist the judiciary in implementing a congressional substitute for the equal protection analysis the courts would perform; in effect, Congress was commandeering the courts to do its bidding in the course of engaging in constitutional adjudication. Unlike the statute at issue in Boerne, Section 5 legislation generally should be understood as providing supplementary protection of groups, supplemental regulation of conduct that implicates no separation of powers concerns. Thus, while Congress unquestionably exercises substantive authority under Section 5, it enjoys no definitional authority over the Constitution's meaning.

Section 5 enactments do raise federalism concerns, and the Supreme Court properly should inquire whether the ends of the legislation can be said plausibly to "enforce" the self-operative provisions of the Fourteenth Amendment. But enforcement authority is not limited to codifying, or providing additional sanctions for, conduct that courts on their own would find unconstitutional. Congress enjoys a remedial authority to act in a prophylactic fashion to prevent violations ever from occurring; to establish an environment conducive to the practical enjoyment of equal protection and due process. On the issue of permissible ends of Section 5 legislation, the question ordinarily should be whether the Court has acted in an area that the Court has identified as (or will agree is) one warranting heightened constitutional concern. Classifications the Court has subjected to intermediate or strict scrutiny are such areas, while classifications that are held to merit only rational basis scrutiny generally are not. However, classifications in the latter category may be proper subjects of Section 5 laws when they are found to implicate constitutional values (as recognized by the Court).

The Court's "congruence and proportionality" test plays a useful role in cases, like Kimel v. Florida Bd. of Regents, 120 S.Ct. 631 (2000), where despite the invocation of Section 5, the absence of findings and the size of the gap between what the statute requires and what the Fourteenth Amendment requires of its own force raise the question whether Congress was, in fact, animated by Fourteenth Amendment concerns in passing the law. The test is unnecessary in cases like Boerne; it is inappropriate in cases like United States v. Morrison, 120 S.Ct. 1740 (2000), for it results in judicial scrutiny of the means Congress has chosen to advance an otherwise legitimate Section 5 objective.

At one level, we should welcome the renewed attention to Congress's Section 5 authority, for an appropriate set of ground rules can serve both to quiet legitimate concerns that Congress impermissibly will overtake state functions and to initiate a new era of candor, encouraging Congress to legislate in the service of equality and due process norms under Section 5 rather than under the guise of regulation of commercial activity under the Commerce Clause. Morrison gives pause, however, and presents a threat to the capacity of the national legislature of address national problems through national solutions.

Abstract:
Unedited "transcript" of conversation among three union representatives, C, or "cooperationist", A, or "adversarialist" and S, or "stay the course". A wide-ranging conversation over the future of labor unions in the U.S. private sector. Topics include trade and employee involvement, contingent work, card-check certification, and optimal arrangements for resolution of employee disputes.

labor, trade, employee involvement, employment dispute, union density

Abstract:
I argue that union democracy regulation is misguided for a number of reasons. First, the regulations do not do a good of reducing agency costs of union leadership because internal union elections are not salient to most union members who rationally do not make the investments in time and information to participate. Second, they are misguided because the franchise is limited to full-fledged union members. Employees, therefore, must expose themselves to the risk of union discipline in order to have any say in critical economic decisions concerning the terms of their collective representation. Finally, the rules artificially limit the supply of representation service providers to non-profit membership organizations whose structure conforms to federal requirements.

I propose in place of existing regulations a legal regime that is indifferent to the form that bargaining agencies take. They can be for profit or nonprofit, oligarchies or democracies. The Landrum-Griffin Act model is only one option. What federal law should require is that employees in a bargaining unit have statutory rights, irrespective of membership, to cast secret ballots on whether (i) they want collective representation, (ii) who the collective representative shall be, (iii) dues structure, i.e., costs of representation, (iv) employer's last offer in bargaining, (v) strike authorization, (vi) contract ratification, and (vii) reauthorization or deauthorization of the bargaining agency.

These "critical voting opportunities" should be made available irrespective of whether the employee is a union member and should be available without any prior showing of interest by represented employees. What the bargaining agent does with union dues and other income is its business, subject to the usual rules for enforcement of contracts and prohibition of fraud. Because the proposal envisions an "easy out" approach to deauthorization, consideration might also be given to an "easy in" approach to authorization of the bargaining agency without elections and on the basis of card signatures, although this is not necessary to the proposal. The government's job is to facilitate these elections by regularizing the format for ballots and perhaps using the Internet to give potential competitors information about upcoming election dates, etc. The proposal should promote a better functioning marketplace for representational services, and give employees a greater set of options in deciding whether to pursue (or retain) collective representation.