Faculty Bibliography
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You need only look at the state level to understand who supports workers and who doesn’t.
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In a historical moment defined by massive economic and political inequality, legal scholars are exploring ways that law can contribute to the project of building a more equal society. Central to this effort is the attempt to design laws that enable the poor and working class to organize and build power with which they can countervail the influence of corporations and the wealthy. Previous work has identified ways in which law can, in fact, enable social-movement organizing by poor and working-class people. But there’s a problem. Enacting laws to facilitate social-movement organizing requires social movements already powerful enough to secure enactment of those laws. Hence, a chicken-and-egg dilemma plagues the relationship between law and organizing: power- building laws may be needed to facilitate social-movement growth, but social-movement growth seems a prerequisite to enactment of power- building laws. This Essay examines the chicken-and-egg puzzle and then offers three potential solutions. By engaging in disruption, shifting political jurisdictions, and shifting from one branch of government to another, organizations of poor and working-class people can enact laws to enable the construction of countervailing power.
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Blocked at the federal level, Massachusetts must act by passing a new state law.
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How can support for unions be at an all-time high yet union membership fall to an all-time low? It's because our labor law is a complete disaster.
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If Amazon can move its business online, then labor law requires that the union be able to move its picket line online too.
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What the next big Supreme Court labor case means for workers' right to strike — and what Congress can do about it.
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For those of us who support unions, we have an unfamiliar feeling this Labor Day. It’s a feeling of hope and celebration. This is unfamiliar territory because union organizing has been in a free fall for decades now. But we can smile this Labor Day because American workers have delivered a lot to celebrate and, […]
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In Cedar Point Nursery v. Hassid, the Supreme Court holds that a California regulation granting union organizers limited access rights to agricultural property interferes with the property owners’ right to exclude and therefore constitutes a per se physical taking. But the Court also decides that there are exceptions to its per se takings rule. Most relevant, the Court holds that the government, without effecting a taking, can require property owners to cede access rights as a condition of receiving benefits or in order to avoid a risk posed to the public, as long as the benefits conveyed or the risks avoided constitute a legitimate police power purpose and as long as the access condition bears an essential nexus and rough proportionality to that purpose. This essay shows that Cedar Point is wrong on its own terms because the union access provision that the Court holds to be a taking fits comfortably within the Court’s exception to its takings rule. This is so for two reasons. One, the access regulation – and the general labor statute it implemented – was part of California’s approach to ending violence that had come to define agricultural union organizing in the 1960s and 1970s, violence so rampant that many contemporaries described it as “war.” Two, the access provision facilitated the negotiation of collective bargaining agreements containing robust mechanisms for pesticide safety, pesticides whose use posed a dire threat to farmworker and consumer health. Understood this way, the access provision is germane to two quintessential police power purposes: public safety and health. Moreover, the limited access rights provided by the regulation bear a clear nexus to those purposes and are, to say the least, roughly proportional to the costs they help avoid.
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Ross will soon have our summary of the Court’s decision in Cedar Point, holding that a California regulation granting unions limited access to agricultural employers’ property is a per se physical taking. I write to make a basic point, one which is flagged briefly in Justice Breyer’s dissent. In short, today’s holding – as bad […]
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Our country is wracked by two urgent crises – the COVID-19 pandemic and the plague of systemic racism. COVID-19 presents grave challenges to all of us, but it poses particular – and, in many cases, life-threatening – challenges to working people. Moreover, the costs of the pandemic are being borne disproportionately by low-wage workers, a population made up primarily of women and workers of color. As they work to keep the economy moving despite the pandemic, these workers are being asked to put their lives on the line in ways that are both unacceptable and unnecessary. Indeed, as the economy reopens, more and more workers will be put in harm’s way. Unless, that is, something fundamental changes about the way we approach worker voice and power. In this issue brief, we offer a set of recommendations designed to empower workers so that they are better positioned to cope with the ravages of COVID-19, keep themselves and their families safe, and build a more equitable economy than the one the pandemic shut down. There is strong bipartisan support for the recommendations we are suggesting. A large majority of likely voters support giving workers a formal voice in setting health and safety standards. Only 19% of likely voters said they opposed these reforms. View the full polling results here. As with the original Clean Slate report, the recommendations here are designed so that they apply to all workers regardless of whether the law classifies them as employees, independent contractors, or otherwise outside of traditional labor law’s protection. And a central premise of the Clean Slate for Worker Power project is that any attempt to empower workers must begin with the effort to make labor law, and the labor movement, fully inclusive of workers of color – workers who have faced exclusion from the start. When law empowers all workers to demand equitable treatment – including safe and healthy working conditions – workers can build the kind of nation we all deserve
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Public policy in the United States is disproportionately responsive to the wealthy, and the traditional response to this problem, campaign finance regulation, has failed. As students of politics have long recognized, however, political influence flows not only from wealth but also from organization, a form of political power open to all income groups. Accordingly, as this Essay argues, a promising alternative to campaign finance regulations is legal interventions designed to facilitate political organizing by the poor and middle class. To date, the most important legal intervention of this kind has been labor law, and the labor union has been the central vehicle for this type of organizing. But the labor union as a political-organizational vehicle suffers a fundamental flaw: unions bundle political organization with collective bargaining, a highly contested form of economic organization. As a result, opposition to collective bargaining impedes unions' ability to serve as a political-organizing vehicle for lower and middle-income groups. Public policy in the United States is disproportionately responsive to the wealthy, and the traditional response to this problem, campaign finance regulation, has failed. As students of politics have long recognized, however, political influence flows not only from wealth but also from organization, a form of political power open to all income groups. Accordingly, as this Essay argues, a promising alternative to campaign finance regulations is legal interventions designed to facilitate political organizing by the poor and middle class. To date, the most important legal intervention of this kind has been labor law, and the labor union has been the central vehicle for this type of organizing. But the labor union as a political-organizational vehicle suffers a fundamental flaw: unions bundle political organization with collective bargaining, a highly contested form of economic organization. As a result, opposition to collective bargaining impedes unions' ability to serve as a political-organizing vehicle for lower and middle-income groups. This Essay proposes that labor law unbundle the union, allowing employees to organize politically through the union form without also organizing economically for collective bargaining purposes. Doing so would have the immediate effect of liberating political-organizational efforts from the constraints of collective bargaining, an outcome that could mitigate representational inequality. The Essay identifies the legal reforms that would be necessary to enable such unbundled "political unions" to succeed. It concludes by looking beyond the union context and suggesting a broader regime of reforms aimed at facilitating political organizing by those income groups for whom representational inequality is now a problem.
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Agency fees are mandatory payments that certain employees are required to make to labor unions. In recent years, the Supreme Court has moved closer to declaring these fees an unconstitutional form of compelled speech and association and may soon invalidate them entirely. The Court – and the scholarship on agency fees – proceeds from the assumption that such fees are employees’ money that employees’ pay to a union. This article argues, however, that this is the wrong way to understand agency fees and for two sets of reasons. One, the Court treats agency fees as employees’ money because fees pass through employee paychecks on the way from employers to unions. But this is simply an accounting formalism required by labor law. Because employees have no choice but to pay the fees, the fact that the fees pass through paychecks is irrelevant for purposes of First Amendment analysis. Instead, under the First Amendment, agency fees are – and must be treated as – payments made directly by employers to unions. And payments made by employers to unions raise no compelled speech or association problems for employees. Two, irrespective of the accounting regime, the article shows why agency fees ought to be treated as union property rather than as the property of individual employees. Unionization, by allowing employees to negotiate collectively, produces a premium for employees covered by union contracts. Agency fees are a small fraction of this union premium. Because it is the union that produces the premium out of which agency fees are paid, and because individual employees would never earn the premium as individuals, the premium and the fees that come out of it should be treated – under the Court’s own cases – as the property of the union that secured them. The article thus provides two sets of arguments with the same fundamental implication: agency fees are not properly understood as payments made by employees to unions, and there is accordingly no compelled speech or association problem with agency fees.
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Daryl Levinson & Benjamin I. Sachs, Political Entrenchment and Public Law, 125 Yale L.J. 400 (2015).
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Courts and legal scholars have long been concerned with the problem of "entrenchment" -the ways that incumbents insulate themselves and their favored policies from the normal processes of democratic change. But this wide swath of case law and scholarship has focused nearly exclusively on formal entrenchment: the legal rules governing elections, the processes for enacting and repealing legislation, and the methods of constitutional adoption and amendment. This Article demonstrates that political actors also entrench themselves and their policies through an array of functional alternatives. By enacting substantive policies that strengthen political allies or weaken political opponents, by shifting the composition of the political community, or by altering the structure of political decision making, political actors can achieve the same entrenching results without resorting to the kinds of formal rule changes that raise red flags. Recognizing the continuity of formal and functional entrenchment forces us to consider why public law condemns the former while ignoring or pardoning the latter. Appreciating the prevalence of functional entrenchment also raises a broader set of questions about when impediments to political change should be viewed as democratically pathological and how we should distinguish entrenchment from ordinary democratic politics.
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Benjamin I. Sachs, Privacy as Sphere Autonomy, 88 Bull. Comp. Lab. Rel. 233 (2014).
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Under United States labor law, when a majority of employees in a bargaining unit chooses union representation, all employees in the unit are represented by the union. Federal law, moreover, requires the union to represent all workers in a bargaining unit equally with respect to both collective bargaining and disciplinary matters. As a general rule, federal law enables unions to require employees to pay for the services that unions are obligated to provide them. Twenty-four states, however, have enacted laws granting union-represented employees the right to refuse to pay the union for the services that federal law requires the union to offer. As such, the intersection of federal labor law and state right to work laws results in a mandate that unions provide services for free to any employee who declines to pay dues. This paper proposes three approaches to addressing this feature of U.S. labor law. First, the paper argues that under a proper reading of the NLRA states may not prohibit all mandatory payments from workers to unions. In particular, the paper shows that states must permit collective bargaining agreements requiring so-called objectors (or nonmembers) to pay dues and fees lower than those required of members. Second, the paper argues that in right to work states federal law ought to relax the requirement of exclusive representation and allow unions to organize, bargain on behalf of, and represent only those workers who affirmatively choose to become members. This proposal would implement a members-only bargaining regime in right to work states. Third, the paper contends that the NLRB ought to abandon its rule forbidding unions from charging objecting nonmembers a fee for representation services that the union provides directly and individually to them.
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Public policy in the United States is disproportionately responsive to the wealthy, and the traditional response to this problem, campaign finance regulation, has failed. As students of politics have long recognized, however, political influence flows not only from wealth but also from organization, a form of political power open to all income groups. Accordingly, as this Essay argues, a promising alternative to campaign finance regulations is legal interventions designed to facilitate political organizing by the poor and middle class. To date, the most important legal intervention of this kind has been labor law, and the labor union has been the central vehicle for this type of organizing. But the labor union as a political-organizational vehicle suffers a fundamental flaw: unions bundle political organization with collective bargaining, a highly contested form of economic organization. As a result, opposition to collective bargaining impedes unions' ability to serve as a political-organizing vehicle for lower and middle-income groups. Public policy in the United States is disproportionately responsive to the wealthy, and the traditional response to this problem, campaign finance regulation, has failed. As students of politics have long recognized, however, political influence flows not only from wealth but also from organization, a form of political power open to all income groups. Accordingly, as this Essay argues, a promising alternative to campaign finance regulations is legal interventions designed to facilitate political organizing by the poor and middle class. To date, the most important legal intervention of this kind has been labor law, and the labor union has been the central vehicle for this type of organizing. But the labor union as a political-organizational vehicle suffers a fundamental flaw: unions bundle political organization with collective bargaining, a highly contested form of economic organization. As a result, opposition to collective bargaining impedes unions' ability to serve as a political-organizing vehicle for lower and middle-income groups. This Essay proposes that labor law unbundle the union, allowing employees to organize politically through the union form without also organizing economically for collective bargaining purposes. Doing so would have the immediate effect of liberating political-organizational efforts from the constraints of collective bargaining, an outcome that could mitigate representational inequality. The Essay identifies the legal reforms that would be necessary to enable such unbundled "political unions" to succeed. It concludes by looking beyond the union context and suggesting a broader regime of reforms aimed at facilitating political organizing by those income groups for whom representational inequality is now a problem.
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