Protecting Liberty? State Secret Ballot Initiatives in the Shadow of Preemption and Federalism

New York University Journal of Law and Liberty, Vol. 6, No. 3, 2012, pp. 409-496

George Mason Law & Economics Research Paper No. 11-42

89 Pages Posted: 19 Oct 2011 Last revised: 26 Oct 2012

Harry G. Hutchison

Centre for the Study of Law & Public Policy at Oxford; Regent University - School of Law

Date Written: October 18, 2011

Abstract

Commendably, a number of states have recently approved initiatives to protect workers’ right to participate in a secret ballot election before a labor union can represent them. Reifying liberty and the anti-subordination principle, state secret ballot initiatives prioritize employee protection over national uniformity. At the same time progressive scholarship offers potentially useful arguments concerning the need to relax existing labor preemption rules. These arguments may encourage future state and local regulatory diversity and provide an environment conducive to the acceptance and expansion of all sorts of proposals that are protective of workers’ liberty interests.

Optimism about the possibility of doctrinal convergence between the efforts of progressive and classical liberals ought to be tempered; this move is riven with the risk that constraining preemption doctrine may further constrain workers’ freedom and liberty since there is also a corresponding move afoot that favors federalization, centralization and uniformity and can be explained by the pursuit of self-interested rents.

Keywords: Alexander Bickel, Arizona Secret Ballot Referendum, board, card-check, EFCA, Employee Free Choice, Epstein, FLSA, Henry Drummonds, horizontal federalism, hyper-centralization, law and corporatist approach, Lochner, NLRA, NLRB, National Labor Relations Act, Richard Weaver, SBPA, Section 7, vertical

JEL Classification: J50, J51, K31

Suggested Citation

Hutchison, Harry G., Protecting Liberty? State Secret Ballot Initiatives in the Shadow of Preemption and Federalism (October 18, 2011). New York University Journal of Law and Liberty, Vol. 6, No. 3, 2012, pp. 409-496; George Mason Law & Economics Research Paper No. 11-42. Available at SSRN: https://ssrn.com/abstract=1945834

Harry G. Hutchison (Contact Author)

Centre for the Study of Law & Public Policy at Oxford

Belsyre Court, 57 Woodstock Road
Oxford 0X2 6HJ
United Kingdom

Regent University - School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

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