To Strike or Not to Strike (Review of Julius Getman, The Betrayal of Local 14: Paperworkers, Politics, and Permanent Replacements)

This is a book review of Julius Getman, The Betrayal of Local 14: Paperworkers, Politics, and Permanent Replacements (1998

To Strike or Not to Strike (Review of Julius Getman, The Betrayal of Local 14: Paperworkers, Politics, and Permanent Replacements)

This is a book review of Julius Getman, The Betrayal of Local 14: Paperworkers, Politics, and Permanent Replacements (1998

Intentionalism\u27s Revival

This essay responds to an article by Professors Boudreau, Lupia, McCubbins, and Rodriguez (hereinafter BLMRod ) that was posted in Legislation and Statutory Interpretation Abstracts on July 26, 2007, (http://ssrn.com/abstract=997924) and that will appear in the San Diego Law Review, vol.44, no.2, 2007. The essay situates BLMRod\u27s article in the context of recent efforts by a number of scholars to reclaim foundational legitimacy for intentionalism as an approach to construing statutes. The essay first applauds BLMRod\u27s use of insights from communication theory to conceptualize statutes as compressed substantive or procedural commands that cannot be adequately understood without an appreciation for the compression process that generated them. The essay explores certain implications of this thematic focus. It discusses how the authors\u27 approach may help clarify the status of legislative history as evidence of ascribed or imputed intent. It also suggests how that approach may enhance the value of legislative history when contrasted with key interpretive resources generated by the two other branches of government - i.e., the canons of construction and agency rules or adjudications. The essay then adopts a more critical perspective toward BLMRod\u27s treatment of the compression (lawmaking) and expansion (law-interpreting) processes. It suggests that by viewing the compression process as essentially a majority party domain, the authors undervalue important congressional conversations involving minority party members, especially although not exclusively in the Senate. Further, the essay discusses how the architecture of congressional conversations may differ across subject matter areas more than the authors\u27 basic model seems to contemplate. Finally, the essay addresses the process of expansion, particularly BLMRod\u27s approach to conversations among a bill\u27s coalition of supporting members. It suggests ways in which the authors\u27 analysis of what motivates ardent and pivotal supporters, and how courts should treat these two key groups when elaborating the meaning of text, may be in need of some refinement

To Strike or Not to Strike (Review of Julius Getman, The Betrayal of Local 14: Paperworkers, Politics, and Permanent Replacements)

This is a book review of Julius Getman, The Betrayal of Local 14: Paperworkers, Politics, and Permanent Replacements (1998

Recrafting a Trojan Horse: Thoughts on Workplace Governance in Light of Recent British Labor law Developments

In June of 2000, Britain established a statutory union recognition procedure applicable to all private and public employers with more than twenty workers.For a country with a history of voluntarism in labor-management relations, the creation of a legal mechanism by which unions could compel recognition from employers was a major change. The Labour Party government modeled its new approach to a considerable extent on our National Labor Relations Act (NLRA).3 Unions seeking statutory recognition must apply through a government agency; disagreements over proposed unit size or scope are to be resolved early by the agency; the union must show majority support to succeed; this support can be demonstrated through nonelectoral means but upon agency review a supervised election may be ordered; and any such election is preceded by a campaign period of several weeks during which rules against employer threats and intimidation are enforced by the agency. In addition, paralleling a philosophy ascribed to our Taft-Hartley Amendments, Britain\u27s new recognition procedure reflects a commitment to employee freedom of choice. Workers may decide either to join a union that seeks legal recognition or to refrain from doing so. The public policy value attached to having union recognition and collective bargaining enforced through a government agency derives primarily from that arrangement being freely chosen by the employees, not from the preferred status of collective bargaining. Domestic criticism of the NLRA has persisted with some intensity since the early 1980s. Union leaders and many labor relations scholars in the United States believe that the statute as written and enforced has played an important role in the steady decline of union organizing and collective bargaining among private sector employees. British union leadership, aware of such widespread misgivings, had reason to fear the arrival of this gift from across the Atlantic The concern was that an American-style union recognition system, based on adversarial representation campaigns and government-supervised elections, would invite if not encourage many of the same problems of excessive delay, employer abuse, and protracted and bitter litigation that have become entrenched under the NLRA. The British statutory procedure is now in its seventh year of operation, and American-style problems have yet to materialize on any substantial scale. Although the number of employees organized through statutory recognition awards has been lower than anticipated, there has been a surge in voluntary recognition agreements negotiated in the shadow of the law. Further, the statutory procedure itself seems to have been well received by both labor and management, with only eight instances of judicial review sought for the first 600 agency determinations. It remains early in the life of this new approach-NLRA implementation in its seventh year (1941) hardly resembled or even foreshadowed the changed legal circumstances that emerged in ensuing years and decades. Further, there are culture-specific factors involved in British experience with workplace governance that caution against easy transplantation, even as concepts borrowed from the NLRA are likely to evolve very differently in British legal soil. Still, initial developments under this recognition procedure may offer some guidance as we contemplate ways to reinvent our own statutory approach to labor-management relations. This article briefly addresses two aspects of the new British procedure, with an eye toward what they might contribute in the American setting. Part I discusses the multi-stage recognition arrangement, and why it has stimulated both sides to seek voluntary recognition agreements at various points. Part II examines the Central Arbitration Committee (CAC), the agency that administers and enforces the statute, focusing on how the CAC\u27s decisionmaking framework and its method of appointment have contributed to an efficient and non-partisan adjudication process. In each part, the article suggests ways in which elements of the British experience might relate to the American context. A threshold question is whether to bother with such an inquiry as part of a symposium addressing the future of governing the workplace. Both the United States and Britain have experienced a steady erosion in union membership since the 1970s, and there is reason to believe that union density may continue to decline, especially in the private sector. Given that collective bargaining agreements have been supplanted by statutes and regulations as the principal source of employee protections in the United States, why discuss ways to promote or preserve such collective agreements when examining possible new directions for workplace governance? Paul Weiler wrestled with this question nearly two decades ago, and as in so many other respects he was ahead of his time. Professor Weiler recognized that collective bargaining was unlikely to regain its former position of pre-eminence for reasons that went well beyond the inadequacies of the NLRA legal regime. He pointed unflinchingly to American workers\u27 general perception of the labor market as delivering decent wages and employment conditions under a loosely competitive structure, and to workers\u27 general reluctance to embrace traditionally hierarchical union organizations as an alternative to individual bargaining with their employers.9 At the same time, Weiler made a powerful case for why the nonunion labor market operates to distort workers\u27 perceptions and expectations regarding the economic advantages associated with their jobs.\u270 Absent some form of ongoing workplace representation, employees often are denied benefits in a market-oriented system. They also are left unable to remedy employer misconduct much of the time in a rights-based regime. Weiler\u27s proposed solution included a different kind of employee participatory mechanism-mandated by statute at the workplacespecific level and charged with addressing a range of distributional decisions inside the firm. 2 Political realities in the United States may well preclude such a distinctive statutory approach, although a version of Weiler\u27s proposal has been developing in Britain with assistance from the European Community. 3 Meanwhile, labor organizations authorized to speak for employees as a group remain relevant in the American setting for the economic and participatory reasons Weiler elegantly recounted. Accordingly, for present purposes I accept that unions should and will continue to play a role in overcoming certain market-based barriers to improved working conditions, in monitoring the effective delivery of statutory rights, and in offering employees a meaningful voice to address their employer\u27s resource allocation policies. I further assume (with guarded optimism) that incremental reform of our labor law statute may become possible within the foreseeable future. Against this background, I focus on two aspects of Britain\u27s recent statutory experience with union recognition that warrant attention when considering revisions to our own statutory scheme

Liberal Justices\u27 Reliance on Legislative History

This Article presents a strong case against the conventional wisdom that legislative history is a politicized\u27 resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions-if true-should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When the eight liberal Justices use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors explain how liberal Justices use legislative history to illuminate the contours of complex statutory bargains that often favor conservative or pro-employer positions. After considering alternative explanations, the authors conclude that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion. The Article also describes how, in the face of Justice Scalia\u27s fervent opposition to legislative history, liberal Justices since 1986 have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals\u27 strategic restraint is that their use of legislative history in the remaining (mostly pro-employee) majority opinions appears more ideological than it was before Scalia joined the Court. Intriguingly, Justice Scalia\u27s strong resistance to legislative history when used by liberal Justices does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues more of a free ride: he is as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not

Protean Statutory Interpretation in the Courts of Appeals

This Article is the first in-depth empirical and doctrinal analysis of differences in statutory interpretation between the courts of appeals and the Supreme Court. It is also among the first to anticipate how the Supreme Court’s interpretive approach may shift with the passing of Justice Scalia. We begin by identifying factors that may contribute to interpretive divergence between the two judicial levels, based on their different institutional structures and operational realities. In doing so, we discuss normative implications that may follow from the prospect of such interpretive divergence. We then examine how three circuit courts have used dictionaries and legislative history in three subject matter areas over the past decade and compare these findings in detail to the interpretive approach taken by the Roberts Court in the same three fields. We determine that the appeals courts have followed a protean approach, adapting their usage patterns in ways that differ substantially from patterns in the Supreme Court. Court of appeals judges use dictionaries far less relative to legislative history than do the Justices; we found no semblance of the distinctive dictionary culture that is prevalent on the Roberts Court. In addition, the relative frequency of dictionary usage between the two court levels varies considerably depending on the subject area and the type of dictionary (general or legal). With respect to relative frequency for legislative history, the Supreme Court, far more than the circuit courts, invokes the record of changes in statutory text—either modified over multiple Congresses (statutory history) or developed in successive preenactment versions of a bill (drafting history). This “vertical history” is apparently more attractive, or less unattractive, to textualist Justices than is traditional legislative history commentary such as committee reports. More broadly, circuit courts regularly use legislative history to resolve ambiguities, confirm apparent meaning, or simply explicate legislative intent, all without characterizing its legitimacy or systemic value. For both dictionaries and legislative history, the eclectic approach of the appeals courts differs markedly from the Supreme Court’s more self-consciously articulated methodological path. We suggest how certain sources of interpretive divergence contribute to these differences, notably the Justices’ interaction with their colleagues in every case and their experience as objects of continuing media and congressional attention, some of which reflects attention that carries over from the judicial confirmation process. We conclude that the eclecticism of the appeals courts is likely to limit judicial discretion more effectively than the Supreme Court’s current approach, which favors clear interpretive rules or priorities that are applied on a presumptively consistent basis

Liberal Justices\u27 Reliance on Legislative History

This Article presents a strong case against the conventional wisdom that legislative history is a politicized\u27 resource, invoked opportunistically by federal judges. The premise that judges regularly rely on legislative history to promote their preferred policy positions-if true-should find ample support in the majority opinions of liberal Supreme Court Justices construing liberal (pro-employee) labor and civil rights statutes. By analyzing all 320-plus majority opinions in workplace law authored by eight liberal Justices from 1969-2006, the authors establish that legislative history reliance is actually associated with a constraining set of results. When the eight liberal Justices use legislative history as part of their majority reasoning, they do so to justify a higher proportion of their pro-employer outcomes than their pro-employee decisions. The authors explain how liberal Justices use legislative history to illuminate the contours of complex statutory bargains that often favor conservative or pro-employer positions. After considering alternative explanations, the authors conclude that Justices Brennan, Marshall, Souter, Stevens, and others are willing to follow so frequently a legislative history trail leading away from their presumed ideological preferences mainly because they have invoked this interpretive resource in principled fashion. The Article also describes how, in the face of Justice Scalia\u27s fervent opposition to legislative history, liberal Justices since 1986 have opted not to rely on that resource in a series of pro-employer majorities that Scalia joins. One result of the liberals\u27 strategic restraint is that their use of legislative history in the remaining (mostly pro-employee) majority opinions appears more ideological than it was before Scalia joined the Court. Intriguingly, Justice Scalia\u27s strong resistance to legislative history when used by liberal Justices does not extend to majorities authored by his conservative colleagues. Scalia seems prepared to give these conservative colleagues more of a free ride: he is as likely to join their majorities, or vote for their results, when they rely on legislative history as when they do not