Warning:

I remember watching the 1960 World Series on television, but the first year that I really followed major league baseball was 1961, the year of Roger Maris and Mickey Mantle’s historic assault on Babe Ruth’s single season home run record. When the baseball season was over, my new-found enthusiasm for sports led me to become a pro football fan as well.

The 1961 season was the second in which the National Football League faced competition from the upstart American Football League. Although everyone I knew and everything I read viewed the NFL as the superior league, no one seemed to deny that the AFL was a major league. As with baseball, my two primary sources of sports information were the sports page of our daily newspaper, the Roanoke Times, and sports cards that came packaged with bubble gum, the purchase of which consumed most of my meager resources.

The local drug store from which I purchased most of my football cards carried the 1961 Fleer Pro Football set, which contained 220 player cards representing all 8 AFL teams and 14 NFL teams, including the expansion Minnesota Vikings. (There were only seven Viking cards, and the player pictured on each was shown in the uniform of his previous NFL team.) Cards came five to a pack with a piece of bubble gum. AFL and NFL cards were never mixed together, so you knew immediately whether you had gotten an AFL or a generally-perceived-to-be-much-more-valuable NFL pack.

For me, picking a favorite football team in 1961 was a real challenge. My home town in southwest Virginia was more than 300 miles from any city with a team; neither of my parents was a professional football fan, and my family, having always lived in rural Virginia and West Virginia, had no connection to any large city. In baseball, I had rooted for the New York Yankees and the Milwaukee Braves (the former because of Maris and Mantle and the latter because my youth league team was called the Braves).

However, these baseball connections did not automatically transfer into my becoming a New York Giants or a Green Bay Packer fan. (I now regret not picking up on the coolness of the Packers until I came to Marquette in 1995. I think the Green and Gold uniforms, which closely resembled those of the Narrows Green Wave, my town’s arch rival, eliminated them as a rooting interest.) I did root for the New York Titans (now Jets) in the AFL, but the AFL counted for very little among my circle—my friend Tommy Powell once offered to trade me his entire collection of AFL cards for my one Johnny Unitas card, but I refused the offer.

The ability to follow an NFL team in Pearisburg, Virginia, in 1961 was restricted in several ways. One was the limited number of television and radio options for following the NFL generally. The one local radio station did not carry any football games at all, and the options available on the one television station that we received were, needless to say, fairly restrictive.

Although the Sports Broadcasting Act was passed in the fall of 1961, the 1961 season was the last in which the previous broadcasting rules applied. Basically, because of judicial interpretations of the Sherman Act’s application to the NFL, the league was prohibited from negotiating a collective broadcasting contract with an individual television network (of which there were then three). As a result, individual teams negotiated with the networks or with independent stations for the rights to their home games. (Allowing the collective sale of broadcast rights was the major change brought about by the Sports Broadcasting Act.)

Throughout the 1950’s, most NFL teams sold their broadcast rights to CBS, but for the 1960 and 1961 seasons, the rights to the home games of the Colts and Steelers were acquired by NBC. In contrast, the AFL games had been sold as a block to ABC shortly after the league’s founding in 1960, apparently on the assumption that the Sherman Act did not apply to the AFL in the same way it applied to the NFL. (Presumably, this was rooted in the notion, given the nature of its founding where teams were started from scratch, that the AFL constituted a single economic entity whereas the NFL was a combination of teams, most of whose economic existence predated their membership in the NFL.

Unfortunately, because of the location of our house (and probably because of the technological limitations of our television antenna which had been purchased in 1955 or 1956), we could only pick up the signal of one television station, WSLS-TV in Roanoke, which was an NBC affiliate. Consequently, the only games I could watch featured either the Colts or the Steelers and whomever they might be playing. (The two teams, which were in different divisions, did not play each other in 1961.) Some people in the town with a better location (or a better antenna) could pick up a CBS station, but no one got ABC.

The other factor affecting the object of my fandom was the enormous popularity of the Baltimore Colts in southwestern Virginia. As far as I could tell, all of the pro football fans in my home town rooted either for the Colts or the Washington Redskins (which was the closest team.) Older adults could probably remember when the Redskins were a top team, but in the recent past they had been dreadful. (Just ask Professor Kossow, who even then was a season ticket holder.) In 1960, the Redskins were 1-9-2, and the year before that, which to me in 1961 seemed like ancient history, they were only 3-9-0. It was also clear to me that most Colts fans were of the view that only life’s losers rooted for the Redskins.

In contrast, the late 1950’s and early 1960’s were the Golden Age of the Baltimore Colts. The Colts had won NFL championships in 1958 and 1959, and the names of their star players—Johnny Unitas, Lenny Moore, Kenosha’s Alan Ameche, Raymond Berry, Gino Marchetti, Eugene “Big Daddy” Lipscomb, L. G. “Long Gone” Dupre, and Art “Fatso” Donovan—were as well known in the Mid-Atlantic region as the Lombardi Packers would be in 1960’s (and later) Wisconsin. The Colts appeared to be on their way to a third straight championship in 1960 until they mysteriously lost their last four games of the season, and were replaced as Western Division champions by Vince Lombardi’s upstart Green Bay Packers, which, before Lombardi’s arrival, had spent most of the 1950’s competing with the Redskins for the title of “sad sack” of the NFL.

So I began the season unsure of which team I liked best. My next door neighbor, Tom Givens, convinced me that I should be rooting for the Redskins, so I started off trying to be a Redskins fan, but after the still all-white team started the season 0-9-0 while being outscored 245-68, I sort of gave up on them. As it turned out, it didn’t get much better for the Skins, who finished the season 1-12-1 with a tie and a final game victory over the Dallas Cowboys, which were in their second year of existence.

Watching the Steelers on television on a regular basis made me sort of a Steelers fan, and they did have some very cool players: halfback Tom “the Bomb” Tracy (who specialized in the halfback option pass, although he only rarely completed his tosses), fullback John Henry Johnson (presumably named after the legendary railroad worker who was a local hero where I grew up), and quarterback Bobby Layne, whom the announcers treated like some revered elderly figure and who kicked extra points, but not field goals.

However, the Steelers didn’t do that well either. They lost their first four games—only one of which was televised–before finally getting their first win of the season, a shutout of the Redskins. (Who else?) Plus, Bobby Layne was injured and missed the middle half of the season, and even though the Steelers won four of their next five games after the 0-4 start, they dropped three of their last five to finish 6-8-0. By mid-season, I was basically a Colts fan.

But the Colts also had problems. The shortcomings that had plagued the team at the end of the 1960 season, which were probably personnel related, continued in the early part of the 1961 season. After opening with a narrow 27-24 victory over the Los Angeles Rams, the Colts lost four of their next six games, including losses to the Packers and Lions, which along with the Colts had been the preseason favorites in the NFL West, and two defeats at the hands of the Chicago Bears in the space of 15 days.

At mid-season, the Packers were in first place in the West with a 6-1-1 record while the Colts were in fifth place, trailing not just the Packers, but also the surprising Bears, the 49ers, and the Lions.

The Colts appeared to be on the verge of rallying in the second half of the season when they pasted the Packers, 45-21, in a November 8 game in Baltimore. Unfortunately, the Colts dropped their next game to expansion Minnesota Vikings, by an embarrassing score of 28-20. This loss left them three games behind the Packers (who that same day bested the Bears 31-28 in Wrigley Field) with only five games to play.

Although the Colts won four of their last five games, the Packers continued to win and actually clinched the West Division championship at the end of Week 12, two weeks before the end of the regular season.

The race in the NFL East Division was much closer, and basically featured a three-way contest among the defending champion Philadelphia Eagles, the New York Giants, and the Cleveland Browns that lasted until the final day of the regular season. The Eagles either held or shared first place for 10 of the first 12 weeks of the season, but at the end of Week 12, the Eagles and Giants were tied for first with records of 9-3-0, with Cleveland a game behind at 8-4-0.

On Sunday, December 10, the Division leaders squared off against each other in Philadelphia. The Eagles led 10-7 after the first quarter, but the Giants then replaced starting quarterback Y.A. Tittle with his aging back-up Charlie Conerly. Conerly rallied his teammates, throwing three touchdown passes and no interceptions as the Giants held off their rivals to the south and came away with a 24-20 victory. This put the Giants one game up on the Eagles with one game to go, assuring them of at least a tie for first place. That same day, the Browns were eliminated by a close 17-14 loss to the Bears in Chicago in a game in which the Browns had led 14-0 in the 4th quarter before faltering.

To retain the East Division title, Philadelphia had to defeat the Lions in Detroit the next weekend and hope that Cleveland could travel to New York and win out over the Giants. In that case, the two teams would play a 15th game to determine the division champion.

The Eagles defeated the Lions, but it was for naught as the Giants and Browns battled to 7-7 in Yankee Stadium. With a record of 10-3-1, the Giants edged the 10-4-0 Eagles by a half game.

Two weeks later, on New Year’s Eve, the Packers and Giants met in Green Bay for the 1961 NFL Championship. Although the Packers had played in the 1960 championship game, their last NFL title had come in 1944, when they bested the Giants 14-7 in New York’s Polo Grounds. The Giants were not strangers to the title game either; in fact, although their last NFL title had come in 1956 when they trounced the Chicago Bears, 47-7, Gotham’s team was playing in the championship tilt for the fourth time in six years.

The 1961 championship was played in 17-degree weather with a 10-mph wind in the Packers still new stadium, which had opened in 1957. Known originally as “City Stadium” or “New City Stadium,” the structure would not be renamed Lambeau Field until 1965. The game was televised on NBC, which held the exclusive rights to broadcast the NFL championship game from 1955 through 1963.

The game itself was a complete anti-climax. After a scoreless 1st quarter, Packer halfback Paul Hornung, the NFL’s leading scorer, ran the ball over the goal line from six yards out. Quarterback Bart Starr then tossed TD passes to wide receiver Boyd Dowler and tight end Ron Kramer. When the next Packer drive stalled at the 10-yard line, Hornung finished off the 24 point quarter with a 17-yard field goal. (In 1961, NFL goal posts were positioned on the goal line, hence the 17 yard field goal.)

In the third quarter it was more of the same, with Horning kicking a 22 yard field goal, and Starr tossing another TD pass to Ron Kramer. The only scoring in the final quarter was a third field goal by Hornung, this one from 19 yards out, giving him a total of 19 points for the game (one touchdown, four extra points, and three field goals)

For the game, the Packers outrushed the Giants 181 yards to 31, with Hornung and Jim Taylor leading the way with 89 and 69 yards, respectively. Starr passed for 164 yards and three touchdowns, compared to a combined 119 yards for Tittle and Conerly. Ron Kramer led the Packers in receptions with four (two for TDs), and both Dowler and Hornung pulled in three catches. Popular wide receiver Max McGee was shut out in the receiving department, but no one really noticed.

The Packer defense was particularly effective that day, as the 37-0 score suggests. In addition to holding the Giant running backs to 31 yards on 14 carries, the defense sacked Tittle twice for losses of 20 yards and intercepted him four times. As in the earlier Giant-Philadelphia game Charlie Conerly was brought in off the bench when Tittle faltered, but in the championship game there would be no magical comeback, as Conerly was able to complete only four of eight passes for a paltry 54 yards.

The names of the starters for the Packers in the 1961 NFL championship game still resonate deeply for many Wisconsin sports fans. The offensive backfield that day included Bart Starr (QB), Paul Hornung (HB), Jim Taylor (FB), and Boyd Dowler (FL). The ends were Max McGee and Ron Kramer, and the offensive line included center Jim Ringo, guards Fuzzy Thurston and Forest Gregg, and tackles Norm Masters and Bob Skoronski. (Starting guard Jerry Kramer missed the game with an injury, forcing Forest Gregg to move to guard from his normal starting tackle position.)

The Packer defensive line was made up of defensive ends Willie Davis and Bob Quinlan and defensive tackles Henry Jordan and Dave Hanner. The starting linebackers were Bill Forester, Dan Currie, and middle linebacker Ray Nitschke, while the defensive backfield included cornerbacks Hank Gremminger and Jess Whittenton, strong safety John Symank, and free safety Willie Wood. Wide receiver Boyd Dowler handled the punting, and Hornung did the place-kicking.

The 1961 NFL season did not actually end, however, until January 14, 1962, the date of the post-season all-star game officially known as the East-West Pro Bowl game. It too was televised by NBC.

I can still remember listening to the game sitting on the floor in our den. I say listening because some time after Christmas 1961, a tube blew out in our television set, a fairly common occurrence in the pre-printed circuit era of electronics. Although the sound continued to work, the screen remained completely blank, effectively turning the television into a radio. When this happened, my parents invariably treated it as a kind of divine signal that my brother and I needed to take a break from TV, and they usually waited a few weeks before getting the tube replaced.

Consequently, I was forced to listen to the game and imagine in my mind what turned out to be the most exciting professional football all-star game of all time. The West led for most of the game, jumping out to a 14-3 lead in the first quarter. However, the East regrouped and managed to narrow the gap to 17-10 at the half. At the end of the third quarter, the West still led, 24-16, as both teams scored touchdowns, but the East’s extra point attempt was blocked by Green Bay Packer (and University of Virginia graduate) Henry Jordan.

However, the East offense caught fire in the final quarter, and put a quick 14 points on the scoreboard when Title passed two yards to his team Alex Webster for one touchdown and fullback Jimmy Brown ran 70 yards for another.

With the East now in the lead, 30-24, the West offense continued to sputter, and with less than two minutes to go in the game, the East had the ball with the intention of running out the clock with a series of rushing plays. However, a crushing tackle by Chicago Bear linebacker Bill George caused an uncharacteristic fumble by Jim Brown, which was recovered by George on the East’s 42 yard line, providing the West with one final shot at winning the game.

West quarterback Johnny Unitas quickly completed a pass of 14 yards to tight end Mike Ditka of the Bears, and then on the next play, one of 15 yards to his Baltimore Colt teammate Lenny Moore. However, a second pass to Moore fell incomplete, and with only seconds remaining, the West had the ball on the twelve-yard line. On the game’s final play, Unitas hit Los Angeles Ram halfback Jon Arnett in the back of the end zone for a game tying six points, and with time expired the West converted the extra point for the victory.

In spite of his fumble, Jimmy Brown was named the player of the game while top lineman honors went to Henry Jordan.

It was a great way to end a great season. We talked about it the next day in my Fourth Grade class, and a half century later, I still remember the 1961 season.

However, for fans of sports law (like myself), the resolution was disappointing.  Had the players’ antitrust suit gone to trial, followed by the inevitable sequence of appeals, we might finally have received conclusive answers to some of the most perplexing questions in the field of sports law.

For example, we might have learned if the “decertify/recertify the union for negotiation leverage” strategy is really a permissible alternative under U. S. labor law, and we might have found out what sorts of owner-imposed restraints could survive “rule of reason” scrutiny under the antitrust laws.  Alas, we will simply continue to argue about the proper answers to such questions until the next major disruption of the professional sports labor-management front raises a new possibility of judicial resolution.

If I had been running the NBA, I would have responded to the NBAPA’s decertification and subsequent antitrust lawsuit by declaring the lockout over and immediately opening the training camps to the now non-unionized players.  I would have then have imposed mandatory drug testing rules and an absolutely rigid, exception-free salary cap.  The cap would apply to all forms of player compensation including the costs of signing new players out of the amateur ranks.   I am confident that both a reasonable drug testing regime and a fixed ceiling on salaries would be upheld under the antitrust laws as reasonable restraints on trade necessary to maintain competitive balance.

I would not have reinstituted the player draft or any restrictions on the signing of free agents — those matters would be adequately dealt with by the salary cap and do little to assure competitive balance.

Of course, for this to work, the NBA owners would all have to be on the same page, which is unlikely. Moreover, such an approach would almost certainly have led to a reformation of the union which would likely then go on strike.  But at that point the sports law carousel would be turning again.

In this presentation, he explored how fear of retaliation limits the effectiveness of whistleblower laws and policies. There are hundreds of whistleblower laws in the United States that provide incentives for people to report misconduct and prohibit retaliation against them for doing so. While recoveries from laws like the False Claims Act are significant, the perception — and often the reality — of what happens to whistleblowers who do come forward is that they pay dearly for their actions. In addition to trying to reward whistleblowers, why are we not also looking for better ways to help people address workplace conflict or misconduct without having to be a whistleblower? Howard argued that an organizational ombudsman can help an organization address this gap between encouraging the reporting of misconduct and protecting those who raise issues.

Several of my students’ comments about the talk are below: 

When a classmate asked me about the Chuck Howard presentation, all I could say is that “the system has failed, and I have no idea how to fix it.”  Howard argued that the current whistleblowing procedures are ineffective.  Businesses have inadequate internal procedures for whistleblowing, which is why the claim makes it to the legal process.  However, Howard spent most of his time explaining that the whistleblowing laws are also ineffective.  The main flaw is that it is still too easy for employers to retaliate against whistleblowers.  Because we live in an adversarial system, once an individual blows the whistle on misconduct in the workplace, he or she will inevitably soon find themselves in a lengthy, expensive, and stressful litigation process.  Howard painted a dark picture of how this litigation process tragically changed the lives of many whistleblowers. He concluded the presentation by offering the ombudsman model as a solution to the problems of whistleblowing laws, but, while good in theory, it would seem that the model’s success will depend on a firm putting forth sound internal rules and procedures around the ombudsman position.  Do firms have the right incentives to adopt such a model?

Is whistleblowing an ethical obligation to ruin your career? After last week’s talk, it is frightful to think that at some point, I may be in the same situation that many unfortunate, yet dutiful, employees have found themselves in. Many careers mandate that certain unethical or unsafe conduct be brought to the higher-ups’ attention. This is exactly what many people have done. In fact, had they not, they would have faced consequences with their own employers or professional associations. That being said, it is remarkable that some whistleblowers are prosecuted, or threatened with prosecution, after choosing to do the moral and legally correct thing. If the laws are not actually protecting what is most important to a professional, reputation, then what is the incentive to blow the whistle, particularly in matters where someone is unsure if a violation or wrongdoing is actually occurring?

Cross posted at Indisputably.

In addition to listing several examples of unlawful behavior under the Act and providing instructions to employees on how to contact the NLRB with questions or possible violations of the Act, the Notice also affirmatively states that employees have the right to

• Organize a union to negotiate with their employer concerning their wages, hours and other terms and conditions of employment.

• Form join or assist a union; bargain collectively through representatives of employees’ own choosing for a contract with their employer setting their wages, benefits, hours, and other working conditions.

• Discuss their wages and benefits and other terms and conditions of employment or union organizing with their co-workers or a union.

• Take action with one or more co-workers to improve their working conditions by, among other means, raising work-related complaints directly with their employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

Employers are required to post the Notice in conspicuous places where the Notice is readily seen by employees, including all places where notices to employees concerning rules or policies are customarily posted. In addition to the physical posting, the rule requires employers to post the notice electronically if personnel rules and policies are customarily posted in that manner.

Failure to post the Notice has its own liabilities for employers. It may result in a finding of an unfair labor practice charge under Section 8(a)(1) of the Act by interfering with, restraining or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. Failure to post may also lead to a tolling of the six-month statute of limitations for the filing of an unfair labor practice charge. Lastly, the Board may consider a knowing and willful refusal to comply with the requirements to post the Notice as evidence of unlawful motive in cases in which motive is an issue.

In the Board’s estimation this Notice will assist employees in exercising the rights afforded to them under the Act including the rights to organize and join a union. Others, including Board Member Hayes, suspect that the rule is simply a means to assist unions in increasing membership by making it easier to organize employees. In fact, Board Member Hayes in his dissent succinctly concluded

“[s]urely, no one can seriously believe that today’s rule is primarily intended to inform employees of their Section 7 rights to refrain from or to oppose organizational activities, collective bargaining, and union representation. My colleagues seek through promulgation of this rule to reverse the steady downward trend in union density among private sector employers in the non-agricultural workforce.”

75 Fed. Reg. 80411, § IV. Nonetheless, it appears that the Board’s rule-making authority or lack thereof in this regard, as argued by opponents to the rule and Board Member Hayes, may come under review by the courts.

Paul considers a variety of policy responses to some of these challenges, but it appears there are no easy fixes.

Paul’s paper, entitled “The Forgotten Employee Benefit Crisis: Multiemployer Benefit Plans on the Brink,” will appear in the Cornell Journal of Law and Public Policy.

Paul Secunda has been exploring the implications of cultural cognition theory for law and employment law. An initial foray is here, and the latest entry in the series is here. The new paper is entitled “Psychological Realism in Labor and Employment Law.”

Paul is concerned that culturally driven fact-finding may undercut the perceived legitimacy of the courts. In the new paper, he suggests a variety of potential reforms for further consideration that might address the cultural cognition and legitimacy concerns. Among the more provocative is a proposal for specialized employment-law courts or judges, analogous to our specialized bankruptcy courts.

The abstract of the new paper appears after the jump.

Facts matter, especially in labor and employment law cases. But not in the way that labor scholars of a generation ago understood. Those scholars correctly posited that judicial perception of facts reflected previously-held values and assumptions rather than record evidence. Yet crucially, those scholars did not describe the psychological mechanism by which judges’ values came to shape facts in labor and employment law cases. Understanding the psychological mechanism by which judicial values shape legal decisions is a necessary first step to set up a framework to counteract the impact of cognitive illiberalism, a form of cognitive bias that impacts society writ large, in such decisions.

Psychological realism in labor and employment law explains that judges in these cases are generally not self-conscious partisans but rather decisionmakers who seek most of the time to get the law right without being ideologically committed to any prior legal or political view. Yet, values matter because judges, as human beings, cannot help but to act based on their culturally-informed perceptions of legally consequential facts.

By understanding the mechanism by which values influence decisionmakers in labor and employment law cases, it is possible to consider ways to reduce needless cultural conflict over, and discontent with, the law. To this end, this article considers a spectrum of judicial reform proposals which seek to help judges address the increasing complexity of labor and employment law cases in a manner which would also reduce the incidents of impact of cognitive illiberalism in American society.

My criticisms of the unusual procedural posture of the case, and of the lack of wisdom exhibited by the four member majority’s rush to resolution, are fully stated in the video.

For the remainder of this post, I would like to expand on my criticism of the majority’s legal conclusion that the legislature lacks the power under the State Constitution to submit itself to the jurisdiction of the courts under the Open Meetings Law.

A basic premise of constitutional interpretation is that constitutions are not statutes.  Instead, a constitution should espouse general principles and guidelines.  This foundational interpretive approach applies to the procedural rules that the legislature is expected to follow when passing a law or when otherwise fulfilling its constitutional duties as the lawmaking branch of the state government.  The text of a constitution is not the place to locate detailed procedural requirements, especially if the particular procedures might be subject to later change or revision which would necessitate the burdensome process of a constitutional amendment.

The delegates at Wisconsin’s state constitutional convention understood this principle.  Consider this explanation by Jack Stark, in his 1997 book THE WISCONSIN STATE CONSTITUTION: A REFERENCE GUIDE (pp. 7-8):

The other salient quality of the ratified constitution is its generality.  On this point, the delegates did speak fairly often, stating that constitutions should enunciate general principles and leave details to legislation.   . . .   This generality has reduced the need to undergo the cumbersome process of amending the constitution when one of its provisions becomes dated or obviously bad public policy.  . . . This generality also makes the legislature accountable to the electorate; whereas a very specific constitution would have allowed legislators to argue credibly that the constitution had tied their hands.  In short, on this matter the delegates chose wisely.

Accordingly, while the Wisconsin Constitution has a specific command that the doors of the legislature are to remain open while it is in session, it follows that the precise policy decisions of exactly how that command should be accomplished have been left to the legislature to decide through legislation.  This is exactly what the legislature did when it enacted the Open Meetings Law.  The legislature also made the choice to include in that statute an express grant of jurisdiction to the circuit courts to hear cases seeking to enforce the procedures of the Open Meetings Law and the express grant of enforcement powers to the courts (including the power to enjoin legislative acts that failed to comply with the law).  It also retained the flexibility to amend or repeal these procedures in the future.

Note that by following the exact provisions of the Open Meetings Law, Judge Sumi was faithful to the policy choices of the legislature, while the decision of the majority in Ozanne replaces the legislative choices reflected in the Open Meetings Law with the majority’s own conception of how best to comply with the State Constitution’s command of “open doors.”

The majority argues that the legislature cannot choose to give jurisdiction and enforcement powers to the circuit courts because of precedent holding that the legislature has the sole power under the Constitution to determine its own procedures, relying principally upon the case of Goodland v. Zimmerman, 243 Wis. 459 (1943).  However, the Goodland case did not deal with the situation where the court was acting under a statutory grant of power to enforce particular procedural rules.  In addition, the Goodland case, which was decided decades before the passage of the Open Meetings Law, never considered the situation where the statute granting enforcement power to the courts was the particular subset of statute that reflects the legislature’s choice of how best to implement a specific constitutional requirement.

In other words, the Goodland case may have decided that the courts lack the power to interfere with the legislative process in the absence of a statute granting the courts such authority, but it never considered or discussed how that analysis might change in the presence of a statute.  To be clear, I am not arguing that it is settled law to disregard the Goodland rule in such circumstances.  However, I do contend that this was clearly an open question under the precedent, and that there are in fact strong arguments that counsel in favor of a different result from Goodland under such circumstances.

The New Hampshire Supreme Court recognized that the separation of powers argument reflected in the Goodland decision and in other cases might not be applicable where the statute in question is tied to the implementation of a constitutional command.  In the case of Hughes v. Speaker, New Hampshire House of Representatives, 152 NH 276 (2005), the New Hampshire Supreme Court distinguished such a situation from the case before it, noting that the text of the New Hampshire “Right to Know” law does not express any intention to tie the statute to a provision of the New Hampshire Constitution and also that the language of the New Hampshire Constitution relating to open government was more aspirational than specific, in contrast to those state constitutions that specifically command public access to legislative sessions.  It takes but a moment’s reflection to realize that the Wisconsin Open Meetings Law and the Wisconsin Constitution present the exact situation that the New Hampshire Supreme Court recognized as presenting an open legal question.    

In its unseemly rush to decide the case, the majority in Ozanne considers none of this.  Instead, the most notable and (at the same time) pernicious aspect of the legal holding of the majority is the manner in which it applies a strict conception of the separation of powers doctrine in order to hamstring the exercise of judicial review.  The separation of powers doctrine is not an absolute command, and, indeed, any doctrine that can countenance both the Independent Counsel Law and the qui tam provisions of the False Claim Act can only be described as a flexible doctrine.  After all, an absolutist view of separation of powers would never have allowed the United States Supreme Court to decide whether an executive branch official was properly appointed by the President (Marbury v. Madison) or whether the President’s claim of Executive Privilege was correct (United States v. Nixon).

If the majority were concerned about the risks of excessive judicial encroachment into the legislative process, it might have considered whether those risks could be obviated by limiting the exercise of circuit court jurisdiction over legislative procedures to those few instances where a statute declares itself to be implementing a constitutional command.  After all, the one point of unanimity among all seven members of the Court in the Ozanne decision was that a bill could not become a law unless the statutory provisions requiring the Secretary of State to designate a date of publication have been met.  This is exactly the legal argument that I have made all along, and I fail to see how holding the Legislative Reference Bureau and the Senate Majority Leader to the terms of the statutes concerning publication is less of an encroachment upon the legislative branch than holding legislative officials to the terms of the Open Meetings Law.

In addition, as I have suggested previously, there are additional ways that the Court could have limited the risk of an undue encroachment on the legislative branch while still providing for judicial enforcement of the Open Meetings Law.  Merely by adopting an evidentiary rule that the official journal of legislative proceedings will provide the conclusive evidence as to what procedures were or were not followed, the majority could have avoided any risk that future courts would engage in contentious fact-finding efforts when questions of compliance with the statute arose.

What are the implications of the majority’s holding in Ozanne for future cases?  For one thing, we have seen that litigants in other states have raised the same absolutist separation of powers arguments adopted by the majority to challenge the power of the judiciary to enforce public records laws against the legislature.  It is likely that these same arguments also would support a challenge to the judicial enforcement of state ethics laws.  I can find no limiting principles in the majority decision that would prevent its use as precedent in these circumstances.

The recent spate of high profile efforts by state governors to roll back public employee pension rights in light of recent budgetary challenges has shone the light directly on the importance to public employees of the Contracts Clause provisions of the federal and state constitutions. Using as an example the controversial budget repair bill in Wisconsin and the application of the bill’s pension provisions to Milwaukee City employee pension rights, this article has sought to show how, under certain specified circumstances, such legislative attempts may be constitutionally impermissible if such laws substantially impair employee contracts with the state without the necessary legal justification.

Although such Contracts Clause litigation might be successful in a suit brought by the City of Milwaukee on behalf of its employees, it is unclear w.hether such arguments will be successful in other parts of Wisconsin or in other states. As the examination of pending pension litigation in other states underscores, there will also be different types of state legislation that may run afoul of public pension rights under the particular provisions of a state’s pension laws. Because of the lack of legal uniformity in public pension regulation from one state to the next, the only possible way to determine whether state curtailment of public employee pension rights will be constitutional is by undertaking an in-depth legal analysis of the applicable pension laws, regulations, ordinances, court opinions, and prior case settlements.

Entitled “Constitutional Contracts Clause Challenges in Public Pension Litigation,” Paul’s paper will appear in the Hofstra Labor and Employment Law Journal.

First, these changes have occurred during a great time in my life.  I consider myself lucky to be able to observe such historic legislative action while enrolled here at Marquette.  We as law students are unique within the political discussion because we have access to such great legal minds.  For example, two weeks ago Professor Paul Secunda spoke to students about the then-proposed Budget Repair Bill.  Professor Secunda reserved time to answer very well thought-out and informed student questions regarding things like: the potential legal avenues of those opposed to the bill, the effect that Wisconsin’s labor reforms could have on a national level, and what specific items within the bill actually mean to citizens and public employees within the state. 

The presentation by Professor Secunda is just one of the many opportunities we have as legal scholars to advance our personal knowledge on very important political issues.  This Marquette University Faculty Blog has provided a forum for other Professors and local attorneys to provide their opinions and thoughts regarding the reform.  These forums provide an outlet for legal thinkers as well as a resource for students like me.

Ultimately, while the bill has been passed (although currently subject to a temporary restraining order) by the Legislature, discussions regarding the changes have only just begun.  As a participant in this emotional and heated discussion, I consider myself lucky to have been in law school during these changes.

Second, the changes to public sector labor law have made me think back to some of the statements made by Justice Antonin Scalia during his presentation at Marquette in the fall. 

Justice Scalia’s address to the students stressed the need for legal education to be well-rounded.  He suggested that students stick with the “core” classes of the curriculum.  While his advice holds true in many respects, the changes in Wisconsin’s labor law make me appreciate how one’s mastery within a specific area of law can be just as beneficial, especially in the tough job market faced by students today.

We as law students hear advice all the time about how we have to make ourselves “marketable” to prospective employers.  When I entered law school, it was suggested that students could really help themselves out if they would spend time immersing themselves in the changes to national health care.  Now as I exit law school, I hear the same advice from attorneys within the community regarding the changes to Wisconsin’s labor laws. 

Marquette does a great job of providing students the opportunity to study many facets of the law.  Professors provide their time to work with students as faculty advisors to numerous student-led legal societies.  These societies then work in connection with the school to create a network within the local community, helping students to gain employment during and after school.  While a general legal education is ultimately a great goal, in this bleak legal market, students can also separate themselves by availing themselves of the many specialized areas of the law available both through Marquette’s curriculum and through extracurricular organizations.

Finally, when able to step back and observe neutrally, this time of political activity has been refreshing for me personally.  As a younger person, I have never lived through, or been so acutely aware of, such a politically charged time.  It has been a moving and an eye-opening experience to watch individuals band together to support a commonly held belief.  To live through such a period is energizing to me personally as I enter the legal community because it is apparent to me that we, as law students, will play an integral role in the next step, whatever that may be, of Wisconsin’s historic legal change.

Wisconsin’s largest newspaper, the Milwaukee Journal Sentinel, has largely failed to take a coherent editorial position on the budget debate.  In fact, the entire local media, both print and television, seem to have bent over backwards in order to appear sympathetic to the arguments of both sides.  In this regard, the local media seems to see its role as something akin to the role of an arms dealer during a civil war: issue statements generally supportive of both sides and hope to sell your product to the widest possible audience. 

However, I believe that there are larger lessons to be learned from the budget battle, and that the issues raised over the last three weeks transcend partisanship.   Even after the dust settles on the particular aspects of the budget bill that have engendered controversy (collective bargaining rights, public school funding, control over state health care programs, etc.), there will remain three broad issues that call out for reform, both in Wisconsin and nationwide.  Everyone in Wisconsin (and that includes Democrats, Republicans, and Independents) shares an interest in preserving a system of government in which it is the voters of the state who hold the ultimate political power.  Overlooked amidst the partisan bickering between Governor Walker and the Democratic 14 are serious fault lines that threaten the long term stability of the democratic process.

1. Political Accountability

The Supreme Court has often stressed that our system of government only works when elected officials are accountable to the voters.  The Court’s interpretation of the U.S. Constitution has elevated the idea of political accountability into a basic structural component of both the separation of powers and federalism.  For example, in the case of Clinton v. City of New York, the Court struck down the Line Item Veto Act.  Justice Kennedy wrote a separate concurrence stressing the manner in which the technique of the line item veto impermissibly allows Congress to avoid being held politically accountable for its spending decisions.  Similarly, in Printz v. United States, the Supreme Court struck down certain provisions of the Brady Bill that required local law enforcement to perform background checks on handgun purchases.  Justice Scalia’s majority opinion stressed the manner in which the Brady Bill acted to shift unpopular enforcement responsibilities away from the federal government and onto the shoulders of state officials.    

From this perspective, the Walker administration’s budget bill was objectionable, on process grounds.  The budget bill incorporated fundamental policy provisions into a fiscal bill that was required in order to fund the state government.  Both political parties in Wisconsin have engaged in this practice in the past, and it is easy to see why.  First, the exigencies of passing a budget, and the desire to keep state government’s services and benefits flowing, work to create time pressures that preclude any reasoned deliberation and debate over the policy changes.  Second, the inescapable need to pass a budget bill in some form typically creates political “cover” for politicians who can vote in favor of the bill in its totality while still claiming to have privately opposed the passage of specific policy provisions.  The result of combining basic policy provisions with budgetary provisions, however, is that it allows elected officials to avoid taking responsibility for their votes.

The number of significant policy changes contained within the Wisconsin budget bill is sufficient to lead to the conclusion that the entire bill was designed to allow Republican legislators to avoid political accountability.  A false sense of urgency was created, using the fiscal needs of the government as an excuse, and the vote on the bill was fast tracked in order to limit public debate.  In addition, items that clearly would have generated a storm of controversy if introduced as a stand-alone bill were quietly buried in the budget bill.  This move allowed nervous Republicans to vote for the entire bill while maintaining plausible deniability with constituents who opposed the controversial provisions.

It is only due to the actions of the Democratic 14, who left the State in order to deny the Senate a quorum, that the issue of collective bargaining rights for public employees was separated from the overall budget provisions in the minds of the voting public.  As a result, and much to their chagrin, individual Republican legislators were forced to take a position on the issue in the face of public scrutiny.  All of these legislators, Democrat and Republican, are now accountable to the voters, who can exercise their power to recall legislators on either side as they see fit.  Contrary to today’s bizarre editorial in the Milwaukee Journal Sentinel, criticizing the recall efforts already underway, the accountability of elected politicians to the voters is a good thing.      

Procedural tricks designed to protect nervous lawmakers from being held accountable for their votes have no place in a democracy.  The Supreme Court is correct: the desire of the Framers to place the ultimate political power in the hands of the voters is meaningless unless political accountability is rigorously enforced.  “Handshake” agreements between the two political parties, whereby they make vague promises to keep policy proposals out of the biennial budget, are too easy to avoid.  Informal practices should be replaced with strong proscriptions that enforce such separation.

2. Money Matters (A Lot)

Even Wisconsin’s Senate Majority Leader admits that the collective bargaining provision contained in the budget bill strikes at the Democrats’ fundraising capability.  The vast sums of money needed to run a modern statewide campaign (primarily due to the cost of mass media advertising) has created an arms race between the two political parties in which both sides endeavor to raise ever increasing sums of cash.  Much of the money raised goes to pay for mass media advertising that solicits even more contributions, and for the salaries of professional fundraisers.    

Both political parties have become dependent upon collective entities, as opposed to individual contributors, for their financial needs.  Unions are the collective entity that provides the Democrats with a large portion of their funding.  Corporations are the collective entity that provides the Republicans with the bulk of their funding.  Both sides attempt to restrict or eliminate the source of their opponent’s funding, while preserving their own.

In the context of public employee unions, some people have complained that the unions are funded by taxpayer-supported salaries, and that these unions merely recycle those dollars to advance self-interested objectives that many taxpayers oppose.  That may be true to a certain extent, but the same point applies to corporations as well.  Corporations spend monies for political purposes that would otherwise flow back to the owners of the corporation.  In the case of publicly traded corporations, a large percentage of the company’s shareholder-owners are pension funds investing the retirement money of teachers and other government employees.  I doubt that the beneficiaries of these pension funds appreciate the fact that profits in companies that they own are being used to fund political speech (oftentimes hostile towards unions) rather than being paid out to them as dividends.

Rather than spend their time and energy plotting to defund their opponent’s main source of campaign dollars, our legislators should enact meaningful campaign finance reform.  This would entail limitations on the disproportionate influence exerted by collective entities on both sides, and force candidates for office to rely more heavily on individual contributions.  Campaign finance reform would also make public financing available for candidates who wish to forego contributions from collective entities (thereby allowing the emergence of candidates who are not financially beholden to either unions or corporations).  We are fortunate to have a national expert on campaign finance reform, Senator Russ Feingold, as a Visiting Professor here at Marquette.

If you include “issue ads,” such as the message advertising that Governor Walker alluded to in his phone call with the pseudo-David Koch, the general public already ends up footing most of the bill for campaign spending by collective entities.  For some of us, these funds are collected from our paychecks in the form of mandatory union dues.  For others, these campaign funds are derived from the cost of goods that we purchase from the dues paying members of Wisconsin Manufacturers & Commerce or members of other corporate lobbying groups.  A process that forces us to indirectly support the political spending of collective entities merely allows the middlemen to leverage our own dollars in exchange for their political influence.  The public should have the right to decide to cut out the middleman, and to support political candidates directly through publicly funded campaigns. 

The roadblock here is the United States Supreme Court.  I have already posted on this Blog concerning the case of Citizens United v. FEC.  I find the majority opinion in that case to be extremely misguided.  The Supreme Court has taken an absolutist view of the First Amendment in the context of campaign finance.  As a result of the Court’s holding in Citizens United, lawsuits have been filed challenging not only legislation seeking to limit the influence of collective entities on the political process, but also challenging the constitutionality of laws that provide for the public funding of candidates.  In essence, the voting public is being told that we are not allowed to regulate the electoral process, and that we have no choice but to accept the status quo.  I continue to maintain that the First Amendment was not intended to provide collective entities with a constitutional right to participate in the electoral process.     

3. Legislative Districting Reform

The third and final area that calls for reform involves the manner in which legislative districts have been drawn so as to amplify the power and influence of the extremes of both major political parties at the expense of the “moderate middle.”  An interesting post from the Washington Post blog looks at the congressional districts in Wisconsin, and considers whether the state legislature can re-district in order to increase the number of safe Republican seats.  The answer, apparently, is that current districts are already gerrymandered to the maximum extent possible.

I have blogged on this topic before as well.  The problem is that legislative districts are specifically designed to amplify a particular political affiliation among the voters, thereby providing a disproportionate influence to the extreme wing of that party.  Politicians elected from politically gerrymandered districts are often warned that they can expect a primary challenge if they stray too far from the extreme position, even though a majority of the voters who self-identify with that party would prefer a more moderate approach to the issue.  Superior organization and fundraising, coupled with lower turnout numbers in primary elections, combine to give a small number of energized activists the ability to mount successful challenges to the incumbent from the extreme wing of the party.  However, this is only possible because districts are drawn on a partisan basis so that the victor of the primary is highly likely to win the general election. 

If legislative districts were not gerrymandered along political lines, then politicians would have a greater incentive to appeal to moderate voters as opposed to “the base.”  Politicians might even recognize that their constituents hold a variety of different views on the issues, instead of dividing the electorate into two categories: opponents versus “one of us.”  Compromise and progress might even replace gridlock and frustration in both the state and national legislatures.  Instead, we find that our elected officials are increasingly polarized.

In 2004, the Supreme Court had the opportunity to do something about this in the case of Veith v. Jubelirer.  Instead, the majority of the Court ruled that the nature and extent of districts gerrymandered on a partisan basis raised a political question that the Supreme Court could not resolve.  As a result, the only way that partisan gerrymandering will end is if the politicians elected via that very process decide on their own to end it.

Contrast this result with the Supreme Court’s 1962 decision in Baker v. Carr .  There, the Court ruled that state legislative districts that resulted in some voting districts having greater representation than others did not present a political question and could therefore be challenged in court.  As recounted in a recent biography of Justice Brennan by Seth Stern and Stephen Wermiel, Justice Clark, who had been tasked with researching alternative ways other than litigation in which the advocates for electoral reform might accomplish their objectives, concluded in a note to his colleagues: “I am sorry to say that I cannot find any practical course that the people could take in bringing this about except through the federal courts.”  Justice Clark’s vote was the crucial fifth vote in the case.  As a result, the Supreme Court created a mechanism whereby an electoral process that had become petrified and detached from the interests of the voters could be challenged in court, struck down, and reformed.             

We are at a similar impasse today with legislative districts that are drawn in order to favor the two extremes of the political spectrum at the expense of the majority of the voters (who reside well within the ideological middle).  However, this time the only institution capable of reforming the system has decided to sit on the sidelines.

The democratic process needs certain fundamental characteristics in order to work.  These necessary components include: holding legislators accountable for their votes, curbing the influence of collective entities so that the interests of individuals can take precedence, and drawing legislative districts in such a way that candidates can successfully appeal to moderate voters.  An electoral process that lacks these three features is doomed to become captured by special interests.  It may well be that we the voters are incapable of governing ourselves, and that my belief in the democratic process is just a myth.  But even so, it is a myth worth fighting for.

If anything, this current fight is only round one, with a second partisan fight over legislative re-districting yet to come.  The Voter ID bill, which previously was viewed by Democratic leaders as a dangerous assault on their electoral power, now in comparison seems to be a minor inconvenience.  While it is always entertaining to watch two political parties seek to destroy each other, one can’t help but feel that someone in Madison should actually be focused on governing the State.  Both Governor Walker, who picked this partisan fight, and the Democrats, who chose to grind government to a halt in order to defend partisan interests, share equal blame in my eyes.

Who will win this fight?  At this moment, public opinion polling shows broad opposition to the idea of ending collective bargaining rights for public employees.  Joe Conason has a liberal take on the polling data in this post at RealClearPolitics.

Over time, one might expect that public pressure in favor of collective bargaining rights might cause Governor Walker to compromise.  However, much money is being spent on advertising to sway public opinion, and many media outlets have reported on this story in ways that seem designed to influence public perception.  It is possible (and intended) that these efforts will eventually cause public opinion to shift.  As usual, George Lakoff has an interesting take on how the language that both sides are adopting in this political debate may ultimately end up influencing the political outcome as much as (if not more than) the merits of the debate.   He writes at the Huffington Post.  Visiting Assistant Professor Rick Esenberg takes issue with Lakoff’s attempt to frame the debate in this post over at Shark and Shepard.  He sees nothing noble in the actions of the Democratic 14.  Meanwhile, David Sirota at Salon has a post that takes issue with the whole idea that any government in possession of the taxing power can ever truly be called “broke.”  Read too much of this kind of analysis, detailing the way in which words influence our political choices, and you are likely to conclude that George Orwell’s novel 1984 should be shelved in the non-fiction aisle.            

Several legal questions have arisen among all of the partisan bickering.  Mike Ivey at the Capital Times looks at the manner in which the budget bill transfers reserves from the segregated health insurance fund, and uses them to offset costs elsewhere in the budget, and asks whether this part of the bill is illegal.  It does look kind of like the transfer of segregated funds by Governor Doyle in the 2009 budget that was ruled illegal, although in this case the offsetting costs are at least related to health care.  Which is more important in the eyes of the law, that the segregated funds are not being used for their intended purpose, or that the alternative use of the funds is similar to the intended purpose?

Milwaukee City Attorney Grant Langley believes that the Budget bill unconstitutionally interferes with home rule.  As Associate Professor Paul Secunda explains at Workplace Prof Blog, the Milwaukee Home Rule Charter places restrictions on the state government’s ability to alter pension rules adopted by the City.  Rick Esenberg questions Langley’s analysis in a post here.

The most recent legal controversy concerns whether the State Senate has the power to order that Democratic Senators be taken into custody if they are found within Wisconsin borders.  At first blush, the State Constitution would seem to provide explicit immunity from arrest for members of the state legislature.  However, Jim Lindgren at the Volokh Controversy has parsed through the history and the precedent in posts here and here.  He has convinced me that the constitutional immunity does not apply in this case.  Elie Mystal is worried that an arrest is possible, and in this post at Above the Law suggests that Republicans might employ “Dog” the Bounty Hunter to track down the missing Democrats.  My advice to Dog:  don’t do anything without an arrest warrant from a judge.    

Finally, Paul Secunda wrote an opinion piece outlining the policy arguments in favor of our society’s recognition of collective bargaining as a legal right.  It appears in the Capital Times here.  I tend to agree with Professor Secunda that collective bargaining advances both societal goals and individual human rights.  Actually, I have no choice but to agree.  My father was a longtime member of the Maryland State Teachers Union.

This is going to be a tumultuous and momentous spring and summer when it comes to education issues statewide. I wonder what all will be different when it comes time to open schools in September.

Permit me to venture into one aspect of what lies ahead that I specifically wonder about:

Walker proposed that public employees pay 5.8% of their salaries toward their pensions and 12% of the cost of their health insurance coverage.  While I wonder how that’s going to play out across the state, I especially wonder how it will play out in Milwaukee Public Schools.

Why? Because MPS management and the Milwaukee teachers’ union agreed last fall to a very unusual four-year contract, retroactive to July 2009 and going through June 2013. In other words, MPS teachers have a contract for the next two school years that includes no payments toward their pension costs and payment of either 1% or 2% of health insurance, depending on whether an employee has a single or family plan.

So what happens if the state, as seems likely, sets the annual cap on spending for general school purposes factoring in higher pension and health insurance payments? And sets the formula for state aid for schools based on schools spending less than originally forecast on benefits? Other school districts have contracts that expire in June. They at least have new contracts to work on for 2011-13 that can be based on these factors. Will MPS be faced with dealing with aid and revenue caps based on Walker’s thinking, but commitments to teachers for the next two years based on decidedly more generous benefit support by the government?  

If so, the squeeze on teachers in terms of job cuts might be worse in MPS than in other school systems – and it’s already shaping up as bad. Just how bad are cuts going to be in MPS and what will they mean in terms of what is offered in schools? Class sizes? School closings?

Will MPS union leaders, already in a surly mood due to what is happening, be willing to re-open the contracts due to the changed financial picture and in order to save jobs? History would suggest that is unlikely at best, but these are sharply different times.

All this is assuming that the Legislature will support something at least close to what Walker proposed, which seems likely. There will be a host of ways these dramatic changes will play-out. But keeping an eye specifically on what happens within MPS will be especially notable.

I believe the Board will likely not prohibit all captive audience meetings as I believe they could, and should, do under current law.  Rather, the Board is likely to engage in a more restrained approach based on already-existing doctrines and cases given the Board’s desire to avoid the misimpression that it is merely engaging in politically-motivated flip-flopping.

Paul’s paper was part of a symposium at Indiana University-Bloomington on labor and employment law under the Obama Administration.  The abstract appears after the jump.

Under the National Labor Relations Act, as interpreted by the courts and the National Labor Relations Board (Board) over the last sixty years, employers have been permitted to give captive audience speeches at work to employees contemplating unionization. Employees must attend such meetings, cannot question the employer representative, and may not have the union come to the workplace to present opposing views. Not surprisingly, these speeches are one of the most effective anti-union weapons that employers currently have in their arsenal. Now that the Board has both a quorum and a sizable Democratic majority, this Essay considers if, and how, the Obama Board might limit the rights of employers to engage in captive audience speeches during union organizational campaigns.

If the issue arises in a representation election case, the Board might expand the Peerless Plywood doctrine to prohibit captive audience speeches for a longer period of time before an election. On the other hand, If a union raises the captive audience speech issue in a case alleging a Section 8(a)(1) unfair labor practice, the Board might reexamine its precedent under Section 8(c) and consider when exactly employer captive audience speech tactics become coercive under Exchange Parts and Gissel. This approach would require a more searching inquiry into the content of the speech. It might also lead the Board to adopt a presumption of employer coercion where employees are unable to leave such a meeting or ask questions of the employer’s speaker. An employer would be able to rebut such a presumption under a modified form of the Struksnes polling standards that would make clear the purpose of such meetings and assure employees against retaliation for not adhering to the employer’s anti-union message.

Paul Secunda helpfully places Garcetti‘s formalism in a broader jurisprudential context in a new paper on SSRN, “Neoformalism and the Reemergence of the Rights/Privilege Distinction in Public Employment Law.”  

More specifically, he connects Garcetti and similar public employment cases to the “unconsitutional conditions” cases outside the employment setting, in which the Court has embraced a distinction between government subsidies and penalties.  As to subsidy programs, the Court will permit the government to act in ways that burden a constitutionally protected actitivity as long as there remain opportunities to engage in the activity.  In both lines of cases, Paul accuses the Court of ignoring the practical consequences of its decisions.  He writes, “The solution to this cold and insensitive neoformalist approach is to argue for more standards and balancing of interests than bright-line rules.”  (47)

The paper will appear in the San Diego Law Review.  Here is the abstract:

The First Amendment speech rights of public employees, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, have suddenly diminished in recent years. At one time developed to shut the door on the infamous privilege/rights distinction, a new version of the unconstitutional conditions doctrine has been increasingly used to rob public employees of their constitutional rights.

Three interrelated developments explain this state of affairs. First, a jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Second, although initially developed in the government as sovereign context, this subsidy approach to the unconstitutional conditions doctrine has now infiltrated the government as employer context and eviscerated large parts of the holding in Pickering v. Bd. of Education. Third, and most significantly, the subsidy approach in the government as employer context has morphed into the government speech doctrine, through which the government employer claims the speech of its employees as its own and regulates it freely. It is this neoformalism of the subsidy school that explains the reemergence of the privilege-right distinction in public employment law.

This article argues for the restoration of Pickering, its constitutional balancing standard, and the penalty version of the unconstitutional conditions doctrine. Only when government actions that practically truncate the rights of public employees are not tolerated, will public employees be able again to speak without fear of retribution, assume the role of the vanguard of the citizenry, and protect fellow citizens from government fraud, waste, and abuse.

So within this specialized area, I believe the most important case is the public employee free speech case of Pickering v. Board of Education, decided by the United States Supreme Court in 1968.  On October 8, 1964, the Board of Education of Township High School District 205 in Will County, Illinois, fired teacher Marvin Pickering for writing a blistering editorial about the Board and Superintendent in the local Lockport Herald on the previous September 24th.  The letter concerned a series of four tax referenda initiated and supported by the Board of Education which sought to allocate tax money for a variety of school-related purposes.  Pickering believed that the Board and Superintendent had bungled the matter and that tax money was better spent on teachers’ salary, funding for school lunches for non-athletes, and educational needs generally.

Not surprisingly, the Lockport School Board viewed Pickering’s public statements as insubordination.  The same seven-member, elected Lockport School Board that had already decided to dismiss Pickering held a hearing over two days in the Lockport East High School library in November 1964.  Of course, Pickering was not surprised when the Board unanimously decided, on December 7, 1964, to terminate him, as the Board acted as judge, jury, and prosecutor during the hearing.  The Board concluded that numerous statements in the letter were false and it was in the “best interest of the school” to dismiss him from employment.

Eventually the case made its way up to the United State Supreme Court. In a 8-1 decision, written by Justice Thurgood Marshall, the U.S. Supreme Court held that Pickering had a First Amendment right to free speech that could not be forfeited because of the “best interests” of the school district.  Although Justice Marshall recognized that the government’s relationship to individuals was necessarily different in the employment context, he nevertheless firmly stated that public employees have constitutional rights, including rights to free speech.

In any such dispute between a public school teacher and the school board, a court must balance the conflicting interests of the parties.  Justice Marshall described the balance this way: “The problem in any case is to arrive at a balance between the interests of the [public employee], as citizen, in commenting upon matters of  public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”  This principle applies regardless of the public employee’s contractual or other claims to a job.

To be clear, the governmental interests recognized in Pickering are not in any sense constitutional rights, but rather interests that a government employer has in maintaining “a significant degree of control over their employees’ words and actions” because “without it, there would be little chance for the efficient provision of public services.”  The balance undertaken in Pickering is therefore required because even though the government employer performs “important public functions,” and consequently possesses far broader powers in its employer capacity than in its sovereign capacity, “a citizen who works for the government is nonetheless a citizen.” The First Amendment therefore limits the ability of the public employer to condition employment of that employee on the forfeiture of his or her constitutional rights under the doctrine of unconstitutional conditions.

Perhaps equally important, the Court majority in Pickering also noted how critical it was to allow public employees, like Pickering, to speak out on matters of public concern since such employees are many times in the best position to have “informed and definite opinions.”  In other words, public employees help to ensure the transparency and accountability of representative, democratic governments.  Public employees, however, will only speak out on matters of government abuse, waste, or fraud, if they are reassured that they do not risk those very jobs every time they speak.  Unfortunately, more recent case developments since Pickering suggest that the Supreme Court has not focused enough on this important aspect of the Pickering decision.

The reason that Pickering is so important to public employment law is because it represented the end of the rights-privilege distinction in this area. No longer could public employers treat public employment merely as a privilege, but had to respect the constitutional rights of their employees. This is important when one considers the legal landscape before Pickering.  Justice Oliver Wendell Holmes once stated that a person “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.” McAuliffe v. Mayor & City of New Bedford, 29 N.E. 517 (1892).  So although the government has greater latitude when conditioning public employee rights in the workplace, it cannot completely ignore them.

Unfortunately, the Pickering holding is now under attack by a more conservative and anti-civil rights Supreme Court.  The coup de grace against Pickering was delivered by the Roberts Court in Garcetti v. Ceballos, 547 U.S. 410 (2006).   In Garcetti, a deputy district attorney for Los Angeles County, Richard Ceballos, was subjected to adverse employment actions for speaking out about an allegedly defective search warrant in a criminal case.  Although the Garcetti Court paid lip service to its commitment to public employee free speech rights, Justice Kennedy for the 5-4 majority nonetheless held that if employees are engaged in speech “pursuant to their official duties” at work, they are not speaking as “citizens” and thus, enjoy no First Amendment protection for their speech.  Because Ceballos was engaged in speech pursuant to his job duties, he was not speaking as a citizen on a matter of public concern, but only as a government employee. As such, the Court concluded that Ceballos did not have any First Amendment protection and there was no need to conduct a Pickering balancing of interests.

Garcetti thus drastically cuts down on public employees’ First Amendment expression rights.  In the name of managerial prerogative, federalism, and separation of powers, Garcetti has the effect of making government less transparent, accountable, and responsive. Again, this is because public employees are now less secure in their ability to speak out against governmental fraud, abuse, and waste, without facing retribution from their public employers.  Garcetti thus does nothing less than redefine the whole conception of what role public employees should play in ensuring the fair and efficient administration of government services.  Indeed, the perverse incentive set up by Garcetti is that public employees may feel forced to air their dirty laundry outside of the job so that they can be seen as speaking as citizens outside their normal job duties.

In conclusion, although government employees do not have the same free speech protections under the First Amendment as citizens do, Pickering v. Bd. of Education at one point in time established a substantial degree of free speech protection for such employees. Indeed, without Marvin Pickering’s unyielding belief that, “a man doesn’t give up his right to freedom of speech when he becomes a school teacher,” public employee free speech rights might have remained unrecognized for a substantial period of time.

Yet, in the period since Pickering, the doctrine of unconstitutional conditions has been turned on its head. The notion advanced by the majority in Garcetti that public employee free speech is nothing more than government speech when these employees speak pursuant to their duties has wreaked havoc on the Pickering doctrine and has even revitalized the rights-privilege distinction in public employment law.  It has also undermined the ability of public employees to make fellow citizens aware of critical issues inside government.

The time has therefore come again for another Marvin Pickering to arrive on the scene and preach the importance of a robust and engaged public workforce in the United States.  Only through a recommitment to the Pickering balancing test, and its general principles, may it once again become possible for government employees to escape sanction for exercising their constitutional rights to free speech.

Although the Borough argues that this case should be handled like other free speech cases and be dismissed because the dispute does not meet the Connick “matter of public concern” test, the police chief argues that there should be different standards applied for Petition Clause claims as opposed to free speech claims.

Interestingly, a similar argument arises over whether the Connick/Pickering/Garcetti framework should apply in association claim cases under the First Amendment. 

In Reflections on the Techicolor Rights in American Labor and Employment Law, I observed:

There is some dispute over whether an association claim must relate to a matter of public concern before the Pickering balance applies. See Shrum v. City of Coweta, Okla., 449 F.3d 1132, 1138 n.3 (not reaching the question but observing that “[f]ive Circuits have adopted the public concern requirement for freedom of association claims and two have not . . . . The 11th Circuit recently reaffirmed its allegiance to the no public concern test faction. See Cook v. Gwinnett County School Dist., 414 F.3d 1313 (11th Cir. 2005)).

Bill Herbert has also written on this topic in The First Amendment and Public Sector Labor Relations.  Bill points out:

Keep in mind that the right to petition was one of the arguments against granting exclusive collective bargaining representation in the public sector to an employee organization. Also, the clause has a distinct history for those on the Court who claim to be originalists (never mind the history of the congressional refusal to accept anti-slavery petitions).

So all and all, Guarnieri has the makings for a very interesting public employment decision. I will certainly have additional thoughts on the question presented after oral argument in the case, so stay tuned.

Here are some highlights: 

Having read the transcript, it seems likely that the Court will reverse the Ninth Circuit and hold that the government may ask open-ended questions as part of a security clearance process for government employees. Beyond that, though, very little is clear . . . .

Justice Scalia’s approach to the case seems fairly straightforward.  Justice Scalia believes on originalist grounds that the Constitution does not protect a constitutional right to information privacy.  He — and the other justices — recognized that the two 1970s Supreme Court decisions invoked by the plaintiffs — Whalen and Nixon — do not squarely hold that the Constitution protects such a right.  Scalia would therefore answer the open constitutional question and hold that limitations on the government’s ability to ask its employees and job applicants questions do not arise under the Constitution . . . .

Chief Justice Roberts did not seem particularly interested in Justice Scalia’s approach to Nelson.  So my hunch is that the Scalia approach ultimately wins over just his own vote and that of Justice Thomas, along with perhaps Justice Alito.  (Justice Alito asked one question that followed Scalia’s lead, but most of his questions went in other directions.)  With Justice Kagan recused, it is possible that five or six of the remaining justices will favor an approach that maintains ambiguity about the existence of the constitutional right but holds that NASA has not violated such a right even if it exists.  That would require the other justices to develop a framework for determining when the Constitution is violated.

While Lior finds Justice Scalia’s analysis persuasive, I am not similarly persuaded. I think the right of privacy previously recognized in other constitutional contexts also can be seen to include a right to informational privacy.

As to the scope of that right and how constitutional violations should be determined, I would suggest a balancing of interest approach that the Court has already established in both the Pickering First Amendment speech context and the Quon/Ortega Fourth Amendment privacy context.  Indeed, in a previous paper, I have argued that where rights under the substantive due process clause have been violated (as in Lawrence v. Texas), the Court should adopt a balancing test to balance the public employee’s right to privacy against the government’s interest in running an efficient government service.

I agree with Lior that Justice Scalia will not have more than three votes and that may lead to a very splintered decision since Justice Kagan has recused herself. Maybe something like 3-2-3, with the issue of a whether a constitutional right to privacy exists not being decided (think of the Court’s analysis in Quon in this regard).

For nearly six months, Andrew Shirvell, an assistant attorney general for the state of Michigan, has waged an Internet campaign against college student Chris Armstrong, the openly gay student assembly president at the University of Michigan in Ann Arbor.

Using the online moniker “Concerned Michigan Alumnus,” Shirvell launched his blog in late April.

“Welcome to ‘Chris Armstrong Watch,’” Shirvell wrote in his inaugural blog post.  “This is a site for concerned University of Michigan alumni, students, and others who oppose the recent election of Chris Armstrong — a RADICAL HOMOSEXUAL ACTIVIST, RACIST, ELITIST, & LIAR — as the new head of student government.”

Among other things, Shirvell has published blog posts that accuse Armstrong of going back on a campaign promise he made to minority students; engaging in “flagrant sexual promiscuity” with another male member of the student government; sexually seducing and influencing “a previously conservative [male] student,” so much so that the student, according to Shirvell, “morphed into a proponent of the radical homosexual agenda”; hosting a gay orgy in his dorm room in October 2009; and trying to recruit incoming first-year students “to join the homosexual ‘lifestyle.’”

Should Shirvell continue to be employed as a representative of the State of Michigan?

Shirvell talks of being a Christian citizen exercising his First Amendment rights on his own time, but even off-duty speech or actions can have an impact on someone’s public employment. Because he is now identified as Michigan state attorney and his craziness is national news, can’t it be said that he is substantially disrupting the Michigan Attorney General office by becoming the news and undermining the impartiality and good judgment of his office.  Under a Pickering balance, the analysis would appear to support adverse employment action against Shirvell to protect the effectiveness and efficiency of the government service.

I think if he is fired, the State of Michigan should be free of First Amendment liability, whether he is talking as a private citizen and whether he refuses to discuss his public employment himself.

Hat Tip: Denise Faili

A teacher at a Bronx elementary school has been reassigned after writing on a Web site about her past as a sex worker.

In a short online article in The Huffington Post on Sept. 7, the teacher, Melissa Petro, criticized Craigslist for shutting down its “adult services” section, which carried sex-related advertising.

Ms. Petro wrote that from October 2006 to January 2007, she “accepted money in exchange for sexual services I provided to men I met online.”

She said that she used Craigslist to meet men and it provided “a simple, familiar forum through which I could do my business with complete anonymity, from the safety and convenience of my own home.”

This is a fairly standard public employee free speech case applying the Pickering framework, probably coming down to whether the online article in question substantially disrupted the teacher’s ability to be an effective teacher in the school (by dint of her relationship with her supervisors, colleagues, parents, or students). When you are talking about elementary school, you also have to consider concerns about good role models and the impressionable age of the children.

The interesting part to me and my student was the tenure part. Most tenure protections at the K-12 level provide some type of statutory just cause protection.  Did the school district have good cause to terminate her based on exposing herself (pun intended) as a former prostitute?  Who knows how an arbitrator might rule, but I think good cause could be found.  So as long as the school district here affords the proper procedural protections a la Roth and Sindermann, I do not see a problem with the school district’s actions.

Do I condone the firing personally?  That’s a hard one, especially since I have children currently in elementary school.  I can’t imagine her past occupation coming up in the classroom or the children finding out (unless a parent shares this information with their children), but really who knows?

At issue specifically was whether the court should allow in so-called “social framework evidence.” As Melissa Hart and I described in our recent article, A Matter of Context: Social Framework Evidence in Employment Discrimination Class Actions, 78 FORDHAM L. REV. 37, 39 (2009), such evidence involves using general research results to construct a frame of reference or background context for deciding factual issues crucial to the resolution of a specific case.  More specifically, in employment discrimination cases, we wrote: “Social framework evidence, offered by qualified social scientists, plays a central role in modern employment discrimination litigation. By offering insight into the operation of stereotyping and bias in decision making, social framework experts can help fact finders to assess other evidence more accurately.”

The court excluded the evidence in Bloomberg, and I agree with Colin’s thoughts on why the court’s reasoning was less than persuasive:

Under Federal Rule of Evidence 702, expert opinion testimony is only admissible if it “will assist the trier of fact to understand the evidence or to determine a fact in issue.” The court found that Dr. Borgida’s proposed testimony did not meet this standard because, as noted,

“[i]nformation about and commentary on gender issues is so abundant in our society that it has become a common stereotype that women receive disparate and often unfairly discriminatory treatment in the workplace.”…In addition,…“[g]ender stereotypes are the stuff of countless television situation comedies and are the focus of numerous media treatments on nearly a daily basis. It is unarguable that virtually all adults in our society know about gender stereotypes.”

Really? So, the average juror watches “Modern Family” and fair and balanced news broadcasts, and all of a sudden he or she is an expert on gender stereotypes and discriminatory treatment in the workplace such that testimony from an actual expert in the field wouldn’t help the juror? Great! So, I think we can also assume that the average juror watches one of the CSIs, so who needs testimony by crime scene investigators? That testimony wouldn’t be helpful! And, I’m sure the average juror watches “Bones,” so there should never be any need for testimony by forensic anthropologists.

And while we’re at it, I’m certain that most people have seen one of the Law & Orders, so who needs law school and the bar exam? You want to go to marriage counseling? Why? If “Modern Family” is your go-to source for gender discrimination information, why shouldn’t it be your source for how to be a good spouse and parent? Heck, double it up with “The Middle,” and you get a full hour of great advice a week.

In all seriousness, it seems to me that the United States District Court for the Southern District of New York made three primary assumptions in Bloomberg, none of which are defensible: (1) We live in an enlightened world where everybody recognizes that gender discrimination is prevalent; (2) sitcoms and news reports are reliable sources of information for real world issues; and (3) the average person has a good enough grasp of gender issues such that testimony from a bona fide expert would not be helpful to jurors hearing a gender discrimination case. Do you agree?

You go, Colin. Perhaps other reasons might have existed to keep Dr. Borgida’s social framework evidence testimony out, but the court’s reasoning here is, well, absurd.

The name of the program is: Promoting Employee Voice in the New American Economy and features, among other prominent speakers, Professor Kenneth Dau-Schmidt, the Willard and Margaret Carl Professor of Labor and Employment Law at Indiana University–Bloomington, Maurer School of Law.

All are welcome. There is no fee for this conference, but registration is required.  Please reserve your spot by September 23, 2010 by filling out and sending in this this form. 

Here is the schedule with speakers:

8:15 -Registration and Continental Breakfast

9:00-9:30 – Welcome

9:30-10:30
Principal Paper: Promoting Employee Voice in the American Economy: A Call for Comprehensive Reform

Kenneth G. Dau-Schmidt, Willard and Margaret Carl Professor of Labor and Employment Law
Indiana University–Bloomington, Maurer School of Law

10:45-Noon
Responses and Critiques: Lessons From History

Moderator: Paul M. Secunda, Associate Professor of Law
Marquette University Law School

Laura J. Cooper, J. Stewart and Mario Thomas McClendon Professor in Law and Alternative Dispute Resolution, University of Minnesota Law School

Aditi Bagchi, Assistant Professor of Law
University of Pennsylvania Law School

1:00-2:15
Responses and Critiques: Lessons from the Public Sector

Moderator: Phoebe W. Williams, Associate Professor of Law
Marquette University Law School

Ann C. Hodges, Professor of Law
University of Richmond School of Law

Joseph E. Slater, Eugene N. Balk Professor of Law and Values
University of Toledo College of Law

2:30-3:45
Responses and Critiques: Ideological Insights

Moderator: Jay E. Grenig, Professor of Law
Marquette University Law School

Richard Michael Fischl, Professor of Law
University of Connecticut School of Law

Scott A. Moss, Associate Professor of Law
University of Colorado School of Law

3:45-4:30
Rebuttal and Closing Remarks

Questions? Write me at paul.secunda@marquette.edu or call me at 414.288.6497.

There is a huge, obvious problem with the law. The bar studiously ignores it. Even the legal academy generally pretends it’s not there. It’s so large as to be beyond overwhelming.

The problem is this: Our system of justice is absurdly complex and time consuming.

. . .

There are three basic aspects to the mess: Endeavoring to understand the law is unduly complex and expensive, determining the facts is unduly complex and expensive, and teeing up the law and the facts for judges and juries is unduly complex and expensive.

In addition to a lively string of comments (including a couple by our own Rick Esenberg), Eric’s comments also prompted a thoughtful responsive post by Paul Horwitz.  Paul questions, among other things, what the alternative is to our current, complex system and whether such an alternative really would be an improvement.

The civil litigation costs that are Eric’s real target are, it seems to me, simply a part of the transaction costs that result from the way we in the United States have chosen to regulate ourselves.  One could imagine a number of other systems that might have significantly lower transaction costs (e.g., we could regulate ourselves by giving executive branch bureaucrats unreviewable discretion to resolve social problems however they see fit), but it is at least highly questionable whether any such alternatives would be preferable to what we have.  To be sure, we should seek to minimize transaction costs, and there are undoubtedly many small reforms that we could adopt that would help the legal system to operate more efficiently.  But, from a big-picture perspective, it is not clear to me that litigation-related transaction costs are an especially large drag on the American economy.  Indeed, I would be surprised if they were not significantly less than the transaction costs associated with health care delivery.

Elsewhere in the blawgosphere, Corey Yung has an insightful post at Concurring Opinions on federalism in the Rehnquist and Roberts Courts.  He writes,

As a result of the [Rehnquist] Court’s opinions in Lopez and Morrison, many legal scholars felt that the Commerce Clause was seemingly reinvigorated as a means of limiting federal power. . . . To many, the revolution came to a screeching halt with the Court’s ruling in Raich. However, it was still possible to reconcile the doctrine in Raich (as a logical extension of Wickard v. Filburn) with Lopez and Morrison. . . . However, with the Court’s recent decision in United States v. Comstock, the legacy of Justice Rehnquist in regards to the Commerce Clause seems to have vanished.

. . .

One could simply view the Roberts’ Court’s counter-revolution as having shutdown Justice Rehnquist’s efforts. However, I think it is simpler and more accurate to say that there was never any revolution.

Finally, also at Concurring Opinions, Lawrence Cunningham has a helpful summary and critique of the new executive pay provisions of the Dodd-Frank Act.

The overall struggle that transgender people face is similar to the struggle that gays and lesbians face, but for transgender people, the progressive change for their legal rights seems to be slower.  Currently, in 38 states it is still legal to discriminate based on gender identity.  Comparatively, 30 states have not yet developed laws against sexual orientation discrimination.  Wisconsin was the first state to ban employment discrimination based on sexual orientation, and it did so in 1982.  However, as of yet, it has not created equal legislation regarding gender identity.

Discrimination based on gender identity is more commonplace than most people realize.  According to the Human Rights Campaign, transgendered individuals suffer from a wide array of injustice including hate crimes, work place discrimination, housing discrimination, credit discrimination, public accommodation discrimination, and even health care discrimination:

[F]emale-to-male transsexual Robert Eads of rural Georgia developed cervical cancer but [he] could not find a doctor to treat him. Twenty simply refused to do so.  He eventually found one more than 130 miles from home, but by then, Eads’ partner said, it was “just too late.” He died in 1999.

Even in the states that have established anti-discrimination gender identity laws, the fight for equal treatment in the workplace is not a closed book.  Organizations like the Traditional Values Coalition (TVC) continue to advocate against the protection for transgender individuals on the basis that schools would be required to keep teachers who undergo sex changes.   TVC argues that children should not be “subjected to [a transgendered] man’s bizarre sexual transformation,” as it claims transgender individuals are “seriously mentally disturbed,” despite psychological studies that say otherwise.

One  blog post offered the conservative estimate that transgendered individuals are over ten times more likely to be murdered than individuals of the general population.  The “trans panic defense”—a variation on the classics of insanity, diminished capacity, provocation, and self-defense –has been introduced as a means to justify, or at least excuse, some of these murders.  Cousin to the “trans panic defense” is the “gay panic defense,” which was used in the case involving the high profile murder of Matthew Shepard.  Both defenses are built around the psychological phenomenon called homosexual panic. Psychiatrist Edward J. Kempf in 1920, who coined the phenomenon, described it as an acute, brief reactive psychosis suffered by the target of unwanted advances by homosexual or transgendered individuals.

The phenomenon and its subsequent legal defense seem ludicrous on a number of grounds.  First, it is troublesome that as legal defenses they seem to reinforce and promote negative stereotypes about homosexual and transgendered individuals as sexual deviants and sexual predators. Second, they are unsettling because the defenses seek to substantiate a subconscious bias in favor of heteronormativity, which is prevalent in today’s hetero-centric society. Lastly, a disturbing analogous defense comes to mind. Should there be a similar justification for unwanted or unsolicited flirting with women by heterosexual men, and what would that mean for the male population?  The last critique is somewhat tongue-in-cheek, but the point remains that this phenomenon gives an unbelievable amount of legal weight to what might be a simple come-on.

By and large, as this blog has acknowledged, jurisdictions across the US are progressively restricting the use of the “insanity defense.”  Thus, a call for the elimination of the “trans panic defense” in cases concerning mental defect might be unnecessary.  But the insanity defense is only half of the issue.  These defenses, when tied to claims of provocation, have been relatively successful.  The use of the “gay panic defense” and the “trans panic defense” in the judicial system show no real signs of going away.

In addition to recounting Pickering’s colorful life story and the history of the case that made him famous, Paul’s paper also critically appraises the post-Pickering cases that have pared back the First Amendment rights of public employees.  The paper appears as a chapter in the book First Amendment Law Stories.  An abstract appears after the jump. 

The story of Pickering v. Bd. of Education, a foundational case in public employment law, prominently foreshadows more generally the coming prominence of the doctrine of unconstitutional conditions in constitutional law. Under that doctrine, the Supreme Court limits a government actor, like a government employer, from being able to condition governmental benefits, like public employment, on the basis of individuals forfeiting their constitutional rights. It would thus seem to follow that a public employee should not have to sacrifice constitutionally-protected rights in order to enjoy the benefits and privileges of public employment. Yet, today, that is far from the actual case.

So why have First Amendment public employee speech rights, which have traditionally enjoyed protection under the doctrine of unconstitutional conditions, suddenly diminished in recent years? I want to suggest in this contribution to First Amendment Law Stories that a certain jurisprudential school of thought – the “subsidy school” – has significantly undermined the vitality of the unconstitutional conditions doctrine through its largely successful sparring with an alternative school of thought, the “penalty school.” Under the subsidy school of thought, in contexts as different as abortion funding to the provision of tax exemptions, the unconstitutional conditions doctrine has become largely toothless, as government actors can simply compel a given result by saying they are doing nothing but subsidizing (or not subsidizing) a right a citizen or public employee already has under the Constitution.

In order to more concretely illustrate the genesis of the unconstitutional conditions doctrine, and its recent distortions, this Chapter returns to an in-depth exploration of the case that started it all: Pickering v. Bd. of Education. Although the Court decided this case in Marvin Pickering’s favor, the resulting framework has, over the years, been interpreted by the Supreme Court in a manner that significantly limits public employee free speech rights.

Entitled “The Contemporary ‘Fist Inside the Velvet Glove’ — Employer Captive Audience Meetings Under the NLRA,” the paper will be published in a symposium issue of the Florida International University Law Review devoted to the NLRB.  The abstract appears after the jump. 

One of the more effective anti-union techniques used by employers during labor organizational campaigns is the holding of employee captive audience meetings. Employees, in the midst of deciding whether or not to join a union, are compelled to attend an assembly where management has a one-way conversation with them about the evils of unionism. These meetings occur during working hours, when the employer is best able to exert its economic authority over employees and to play on fears of job loss if employees vote for the union.

While employees are free to leave these meetings in the formal sense, they may only do so at the peril of losing their jobs. Further, employers can exclude pro-union employees from such meetings and can fire employees for attempting to ask questions. When one also considers that unions generally lack access to employer property to disseminate pro-union messages, one begins to understand the imbalance of this workplace dynamic. What is most amazing to those who hear about the captive audience meeting tactics for the first time is that such actions by employers are not only tolerated in the United States, but have been considered lawful under the National Labor Relations Act for over sixty years.

Based on employee free choice, the conduct/speech distinction in labor picketing cases, and the threadbare nature of NLRB precedent in this area, this Article contends that the Board should return to its Clark Bros. doctrine and make employer captive audience meetings a per se violation of Section 8(a)(1) of the NLRA. No need exists for statutory amendment of the NLRA because the current language of the Act, even in light of the Section 8(c) employer free speech provisions, readily supports this alternative interpretation. Without the proverbial gun to their heads, employees will again be able to exercise free choice in deciding whether they wish to be represented by a labor organization.