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Cognitive Illiberalism And Debiasing Strategies, Paul Secunda

Paul M. Secunda

Legal realist scholars of a generation ago posited that judicial perception of facts reflect previously-held values and assumptions rather than record evidence. Yet crucially those scholars did not describe the psychological mechanism by which judges’ values come to shape facts. Understanding the psychological mechanism, culturally-motivated cognition, is a necessary first step to counteract the impact of cognitive illiberalism. Cognitive illiberalism results from the manner in which legal decisionmakers explain their decisions, and how those explanations are processed by “losers” in the politico-legal wars of our society. The phenomenon of cognitive illiberalism delegitimizes legal decisions and causes societal discontent with the …

The Forgotten Employee Benefit Crisis: Multiemployer Benefit Plans On The Brink, Paul M. Secunda

Paul M. Secunda

This article provides a first time look at the numerous challenges facing multiemployer or Taft-Hartley benefit plans in the post-global recession and health care reform world. These plans have provided pension, health, and welfare benefits to union members of smaller employers in itinerant industries for over sixty years and even today, these plans collectively have over ten million participants in over 1500 plans.

Multiemployer plans are increasingly mired in financial trouble and are finding it more difficult to continue to provide adequate retirement and health benefits to their members. Although they once represented one of the great triumphs in American …

Neoformalism And The Reemergence Of The Rights/Privilege Distinction In Public Employment Law, Paul Secunda

Paul M. Secunda

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, the unconstitutional conditions doctrine has now been increasingly used to rob these 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 …

“The Longest Journey, With A First Step”: Bringing Coherence To Sovereignty And Jurisdictional Issues In Global Employee Benefits Law, Paul Secunda

Paul M. Secunda

One of the most neglected areas of employee benefits law in the United States today is the extraterritorial application of ERISA to U.S. employees in other countries. Additionally, the courts and legislature have not spent the necessary time to discuss ERISA coverage issues for foreign employees, both legal and illegal and both working for foreign government and non-government employers, in the United States. These are increasingly crucial areas of U.S. employee benefits law as the globalization of the world's workplaces continues apace.

After surveying the tangled web of ERISA law in this context, the article proposes two statutory fixes and …

Reflections On The Technicolor Right To Association In American Labor And Employment Law, Paul M. Secunda

Paul M. Secunda

It is time to rethink how the United States enforces the right of association in the workplace. The proliferation of political associational rights, intimate association rights, and expressive association rights in the constitutional sphere over the last thirty years has made the scope of this fundamental civil liberty confusing and hard to enforce. Outside of the constitutional framework, which generally applies only to public employees, low union density and the lack of common law associational claims have made private-sector employees' associational rights vulnerable. The unfortunate consequence may be that American workers currently enjoy less associational freedoms than almost any other …