- “Coming to Your Workplace Soon? Union Organizing Efforts Via the Company’s Email System” [Daniel Kaplan, Foley & Lardner]
- “Pennsylvania Unions Still Exempt from Harassment [Law], Continue Harassing with Impunity” [Trey Kovacs, Workplace Choice, earlier here, here, here]
- Music production gravitates to right to work states attract in part because union musicians less afraid of discipline for taking gigs there [Variety on union’s dispute with videogame-composer member]
- New definition of “nationwide strike”: protesters show up at a few Wal-Marts, few workers pay attention [On Labor]
- Presently constituted NLRB and U.S. Department of Labor are zealous union partisans, not impartial arbiters [Alex Bolt]
- “Workers filing wage-and-hour lawsuits under Labor Act at record pace” [Crain’s Detroit Business]
- “Despite repeated failures, Card Check still top Big Labor priority” [Sean Higgins, Washington Examiner]
Archive for 2014
Dismissed workers’ comp arbitrator presses disability claim
An Illinois state employee “was dismissed in 2011 from her $115,000 per year job as an arbitrator for the Illinois Workers’ Compensation Commission after a series of stories in the News-Democrat concerning more than $10 million paid to prison guards who complained that turning keys and operating locks caused them to be injured.” The investigation indicated that the arbitrator tried to hide from the press a disability application by a former state trooper convicted of causing highway deaths, and allegedly used her position in an unsuccessful attempt to pressure state officials to speed up her own claim, commenting that she had ‘two mortgages’ to pay.” After her departure from the arbitrator job she “found work training others for the very job from which she was fired,” and now is endeavoring to collect a “pending $25,000 settlement for a disability primarily attributed to typing,” which the state is resisting. [Belleville, Ill., News-Democrat]
On GM, Toyota, politics, and the neglect of safety
I was a guest Tuesday on the Roger Hedgecock program at the San Diego Union-Tribune, discussing the way Washington, D.C. seems to have come down at least as hard on Toyota as on General Motors, maybe harder, even though the safety shortcomings falsely attributed to Toyota appear actually to be present in the GM case.
One striking feature of the GM story is the extent to which a culture of putting as little as possible on paper appears to have undermined GM’s capability to grasp the scope of the safety problem with the flimsy ignitions and their relationship to nonfunctional airbags. Bill Vlasic of the New York Times reports:
To the legal department at General Motors, secrecy ruled. Employees were discouraged from taking notes in meetings. Workers’ emails were examined once a year for sensitive information that might be used against the company. G.M. lawyers even kept their knowledge of fatal accidents related to a defective ignition switch from their own boss, the company’s general counsel, Michael P. Millikin.
As I’ve often noted, organizations gripped by fear of legal consequences or hostile oversight often develop a “put as little as possible on paper” mentality, even though such a mentality regularly proves counterproductive to the organization’s mission by fostering ignorance and lack of coordination and allowing bad practice to take root.
June 12 roundup
- John McGinnis: As information technology disrupts the legal profession, will lawyers’ clout decline? [City Journal]
- Law schools, especially of the more leftward persuasion, collecting millions of dollars in cy pres lawsuit diversions [Derek Muller]
- Who’s still defending embattled medical examiner Steven Hayne? Mississippi attorney general Jim Hood, for one [Radley Balko, earlier here, here, here]
- Life in America will become more drab if Campaign for Safe Cosmetics gets its way [Jeffrey Tucker via @cathyreisenwitz, earlier on “CPSIA for soap”]
- LSAT settled with DoJ demands re: disabled accommodation back in 2002 and again just now, and the differences between the two settlements tell a story [Daniel Fisher, earlier] Some prospective students will be losers [Derek Muller]
- “‘Swoop and Squat’: Staged car accidents, insurance fraud rise in L.A.” [Los Angeles Times]
- Toughen duty for California psychiatrists to inform on dangerous patients? Awaiting backfire in three, two, one… [Scott Greenfield]
FDA backs down on wood aging of cheese
Yes! Following an enormous outcry from cheese makers, commentators, and the general public, the agency beats a hasty retreat. Commentator/ Pepperdine lawprof Greg McNeil has the details at Forbes (and his earlier commentary on the legalities of the agency’s action is also informative). Earlier here.
In a classic bureaucratic move, the agency denied it had actually issued a new policy (technically true, if you accept the premise that a policy letter from its chief person in charge of cheese regulation is not the same as a formally adopted new policy) and left itself the discretion to adopt such a policy in future if it wishes (merely declaring itself open to persuasion that wood shelving might prove compatible with the FSMA).
McNeal:
This is also a lesson for people in other regulated industries. When government officials make pronouncements that don’t seem grounded in law or policy, and threaten your livelihood with an enforcement action, you must organize and fight back. While specialized industries may think that nobody cares, the fight over aged cheese proves that people’s voices can be heard…
There is a less optimistic version, however. It happens that a large number of editors, commentators, and others among the chattering classes are both personally interested in the availability of fine cheese and familiar enough with the process by which it is made to be un-cowed by claims of superior agency expertise. That might also be true of a few other issues here and there — cottage food sold at farmer’s markets, artisanal brewing practices — but it’s inevitably not going to be true of hundreds of other issues that arise under the new Food Safety Modernization Act. In a similar way, the outcry against CPSIA, the Consumer Product Safety Improvement Act, rose to a politically effective level only on a selected few issues (publishers and libraries got a fix so that older children’s books would not have to be trashed; youth motorsports eventually obtained an exemption, and so forth) but large numbers of smaller children’s products and specialties whose makers had less of a political voice simply disappeared.
More: Andrew Coulson, Cato, and on the trade aspects, K. William Watson; Chuck Ross, Daily Caller (quoting me at length for which thanks). On the FDA’s new statement: “Typical bureaucratic doublespeak that seems meant to maximize uncertainty for the regulated community” [Eric Bott of Wisconsin Manufacturers and Commerce] “This was the worst possible outcome. It reinforces elites’ view that regulators are reasonable and wise and will fix mistakes.” [@random_eddie] “Pay no attention to the Leviathan behind the cheesecloth” [Scott Lincicome, in an exchange after a writer at Slate observed that “Libertarians aren’t the only ones” who might want to keep board-aged cheese legal] (Vox, Reason, Carly Ledbetter/HuffPo; & welcome Instapundit, Alexander Cohen/Atlas Society, Q and O readers)
Phone, pen, and Obama’s assertions of executive power
All sitting Presidents try to press the power of their office into doubtful areas. President Barack Obama has been particularly aggressive about doing so, according to the panelists at a May 21 discussion held at the Cato Institute. Georgetown law professor and Cato fellow Nicholas Quinn Rosenkranz noted that the Constitution’s Take Care Clause directs the President to take care that the laws are faithfully executed, and descends directly from centuries of struggle against the “dispensing power” claimed by pre-modern English kings — that is, the power to dispense with enacted legislation entirely where the royal will is better served that way, a claim of power that goes beyond simple prosecutorial discretion or the pardon power.
Rosenkranz pointed to a number of Obama executive actions that are hard to reconcile with the Take Care clause. The text of the Affordable Care Act, for example, states that the employer mandate prescribed by the law was to begin Jan. 1, 2014. “You don’t need a lawyer to interpret this, you need a calendar.” Yet President Obama elected unilaterally to delay the mandate and substitute a later effective date of his own choice. Likewise, the President’s suspension of some immigration regulations overrode the clear letter of U.S. law, aside from any pluses or minuses it may have had as a policy matter.
“President Obama is being the kind of President Nixon wanted to be,” said panelist Jonathan Turley, a well-known legal commentator and law professor at George Washington University: “Many Democrats will rue the day they stood by while the President asserted these kinds of powers.” Panelist Andrew Grossman of Cato said future presidents are likely to follow Obama’s lead and assert their own right to suspend the operation of other laws.
Bonus: At a separate event, Cato welcomed George Mason U. law professor Frank Buckley to talk about his book The Once and Future King: The Rise of Crown Government in America. I offer a question at the beginning of the comment period.
“A presumption of guilt in sexual assault cases”
Civil libertarian Wendy Kaminer, writing at WBUR, says the new White House task force report on campus sexual assault
reflects a presumption of guilt in sexual assault cases that practically obliterates the due process rights of the accused. Students leveling accusations of assault are automatically described as “survivors” or “victims” (not alleged victims or complaining witnesses), implying that their accusations are true….
Thus the task force effectively prohibits cross-examination of complaining witnesses. … But by barring cross-examination, you also protect students who are mistaken or lying, and you victimize (even traumatize) students being falsely accused…. School officials are also encouraged to substitute a “single investigator” model for a hearing process, which seems a prescription for injustice.
More links on the current controversy:
- In the Brown University rape-charge scandal, Sen. Kirsten Gillibrand has declared that the complaining student was “nearly choked to death” and that her former boyfriend “should be in jail.” His side, as told to Cathy Young, is at the Daily Beast here;
- There are no ambiguities. Or are there? [Sandy Hingston, Philly magazine]
- My Commentary piece last summer on related issues: “Sentence First, Verdict Afterward”
- The feds’ Title IX complaint against Tufts [Terry Hartle, Inside Higher Ed]
- KC Johnson coverage, Minding the Campus: OCR will investigate 55 schools; early reaction to White House report; Occidental has assured students and their parents that the process is committed to fairness; suits by male students at Columbia and Drew; taking issue with a Chronicle of Higher Ed investigation;
- More on the feds’ recent crackdown from Megan McArdle: “Rape on Campus Belongs in the Courts” [Bloomberg View]; the Foundation for Individual Rights in Education (FIRE)’s response; Hans Bader; Chronicle of Higher Education.
(& welcome Glenn Reynolds/Instapundit readers)
Drummond Coal vs. Terry Collingsworth
Terry Collingsworth, a well-known attorney specializing in Alien Tort cases against defendants like Chiquita, Coca-Cola, Dole, and Chevron over alleged overseas misconduct, is enmeshed in a bitter fight with the Alabama-based, privately held Drummond Coal empire in which heated allegations are flying in both directions [Daniel Fisher, Forbes]
Reparations: first we say yes, then we find out what’s in them?
If there are insuperable practical objections to the idea of reparations, how about if we find that out first before we’re asked to nod to the idea in principle? [David Frum responding to Ta-Nehisi Coates; earlier]
“Inclusionary” zoning
It squeezes some New Yorkers hard in order to provide what can be a $90,000-a-year windfall for a few [Josh Barro, New York Times] How has the policy worked in Washington, D.C. and nearby Montgomery County, Maryland? [Emily Washington, Market Urbanism]
More: Lots of goodies financed by taxpayers get thrown into the subsidy mix too, says Jim Epstein at Reason.