Putting Union Security Clause First Amendment Law in a Broader Context: Charlotte Garden’s Meta Rights

Charlotte Garden, Meta Rights, 83 Fordham L. Rev. 855 (2014).

Meta Rights is a thought-provoking article that addresses concerns about labor law rules governing agency fee payments in public-sector employment by comparing these rules to doctrines in analogous situations in other areas of law. Specifically, after the Supreme Court decided Knox v. SEIU Local 100 in 2012, 132 S.Ct. 2277 (2012), many felt that the Supreme Court was primed to change the default rule for agency payers from “opt-out” (an employee covered by a union security agreement would have to affirmatively state a preference not to pay dues for activities deemed “not related to collective bargaining”) to an “opt-in” system (unions could not require such dues absent specific, individual consent). Many in the field also noted that Harris v. Quinn, 134 S.Ct. 2618 (2014), looming but not yet decided when this article was written, could result in the Supreme Court mandating the “opt-in” system (I thought that was the most likely result in Harris). This is a very important issue in labor law and policy and for the labor movement as a whole. Although these cases explicitly covered only public-sector unions, such unions make up about half the total membership of all unions in the U.S.

Professor Garden could have written an article solely about whether “opt-in” rules were good or bad labor policy, or the extent to which constitutionally mandating such a system would be consistent with previous precedent (e.g., Abood v. City of Detroit, 431 U.S. 209 (1977)). Instead, she wrote a more interesting article by casting her net much more widely, describing when, in other contexts, courts have required Party A to give notice to Party B that Party B has certain constitutional rights. This takes her well beyond labor and employment law, and indeed beyond civil law (e.g., by discussing Miranda rights). Showing that such “meta rights” are relatively rare (e.g., public schools need not give notice to students that they have a First Amendment right to abstain from reciting the Pledge of Allegiance), Professor Garden provides a strong, principled, and broad-based critique of “opt in” rules. Continue reading "Putting Union Security Clause First Amendment Law in a Broader Context: Charlotte Garden’s Meta Rights"

Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys

Briana Rosenbaum, The RICO Trend in Class Action Warfare, 102 Iowa L. Rev. (forthcoming 2016), available at SSRN.

A racketeer, a mobster, and a plaintiffs’ mass-action attorney walk into a bar. What might be a decent setup for a joke is actually dead serious. Like members of organized crime, plaintiffs’ mass-action attorneys are being sued under the federal Racketeer Influenced and Corrupt Organizations (RICO) statutes. Briana Rosenbaum’s The RICO Trend in Class Action Warfare carefully considers existing remedies for frivolous litigation and critiques what she sees as the inefficacy of “the RICO reprisal.”

Rosenbaum readily admits that some mass-action attorneys include frivolous claims among meritorious ones in an attempt to obtain a larger settlement, otherwise known as “specious claiming.” But Rosenbaum argues that remedies for abusive litigation already exist. There are tort remedies such as malicious prosecution and abuse of process, and procedural remedies such as Fed. R. Civ. P. 11 and 28 U.S.C. § 1927. Rosenbaum posits that this existing remedial structure for vexatious litigants, while imperfect, was at least created with important countervailing policy considerations in mind, such as access to justice and administrative efficiency. Continue reading "Racketeers, Mobsters, & Plaintiffs’ Mass-Action Attorneys"

The Challenge of Eminent Domain

Yxta Maya Murray, Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation: The Optics of Eminent Domain in the Motor City, 23 Geo. J. on Poverty L. & Pol’y 395 (2016), available at SSRN.

One usually thinks of law review articles as detached, dry, formal, and arcane. This is particularly true of those dealing with property. Even if articles are billed as an “interdisciplinary” effort, this generally means the occasional introduction of similarly detached and desiccated material from other fields.

The article Detroit Looks Toward a Massive, Unconstitutional Blight Condemnation: The Optics of Eminent Domain in the Motor City, by Yxta Maya Murray, shatters that mold. In this work, Murray – a legal scholar and the author of six novels – writes of the infinitely complex layers of law, politics, psychological bias, and human need that eminent domain involves in a way that it has not been done before. Continue reading "The Challenge of Eminent Domain"

A Cure for Just-In-Time Scheduling

Charlotte Alexander, Anna Haley-Lock, and Nantiya Ruan, Stabilizing Low-Wage Work: Legal Remedies for Unpredictable Work Hours and Income Instability, 50 Harv. C.R.-C.L. L. Rev. 1 (2015) available at SSRN.

Many readers were introduced to the concept of “just-in-time scheduling” when the New York Times explored the exhausting and chaotic work life of a Starbucks barista in August 2014. But the practice is certainly not limited to Starbucks. In response to this broader trend, groups like “OUR Walmart” are calling not only for higher wages and more full-time jobs, but for predictable and dependable scheduling, and left-leaning states and cities are beginning to mandate predictable work schedules for at least some workers. This emerging locus of advocacy and media attention is also the subject of Stabilizing Low-Wage Work, a great new article by Charlotte Alexander, Anna Haley-Lock, and Nantiya Ruan. The article analyzes comprehensively not only the problem of “just-in-time” scheduling for low-wage workers, but also the potential for either collective bargaining or state and local law to solve that problem.

Adapted from the practice of just-in-time manufacturing, just-in-time scheduling refers to the now-common practice of adjusting staffing levels in response to current conditions. While it is a problem for workers with many types of jobs, it has particularly taken hold in the service sector where, the article reports, “almost 30 percent or workers” have schedules with “variable start and end times.” Moreover, as the article shows, modern technology has made just-in-time scheduling attractive; employers can monitor and anticipate customer demand in close to real-time, sending workers home or canceling their shifts altogether if potential customers are staying home. Conversely, employers may want to call people in at a moment’s notice; this requires employees to wait by the phone, but seldom results in on-call pay. Federal law, particularly the Fair Labor Standards Act, does little to address this problem; when that law was drafted, the greater problem was that employers frequently demanded excessively long hours from workers. Continue reading "A Cure for Just-In-Time Scheduling"

Boilerplate and the Boundary Between Contract and Tort

Margaret Jane Radin’s latest work, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law and a companion article and book chapter interrogate how now-ubiquitous fine print buried deep in consumer contracts affects the rights of ordinary Americans. This boilerplate can take many forms. It includes “extravagant exculpatory clauses,” choice-of-law provisions, and waivers of consequential damages. Frequently, and perhaps most importantly, it also includes agreements to arbitrate—and, in so doing, entails consent to eliminate the background protections we take for granted, including juries, reasonable filing fees, rights of appeal, rules of evidence, the ability to join with similarly aggrieved individuals, and stare decisis. Radin finds this fine print deeply troubling. She argues that, considered in tandem, these contractual terms make certain remedies for transgressions practically unavailable and thereby undermine individual autonomy, degrade democratic principles, and, ultimately, subvert the rule of law.

Because Radin is a contracts scholar—and her recent work is, on the face of it, about contract law—it would be easy for those of us who traffic in tort to miss the scholarship’s significance. That would be a mistake. Continue reading "Boilerplate and the Boundary Between Contract and Tort"