Law Commons^™

Employee "Free" Choice In The Mirror Of Liberty, Fairness And Social Welfare, Harry G. Hutchison

Harry G. Hutchison

The publication of Richard Epstein’s book, THE CASE AGAINST THE EMPLOYEE FREE CHOICE ACT provides an opportunity to reconsider (A) the movement to displace the regime of judge-made law that had previously governed labor relationships, (B) the purpose of the NLRA and (C) the revolutionary implications of the effort to transform the NLRA into a law that places its thumb on the scale in favor of unionization. Describing the central provisions of the Employee Free Choice Act (EFCA), its economic consequences, its constitutional implications, and its connection to the decline of unionism, Epstein offers a balanced portrayal of the EFCA …

Choice, Progressive Values, And Corporate Law: A Reply To Greenfield, Harry G. Hutchison

Harry G. Hutchison

In his recent book chapter, CORPORATE LAW AND THE RHETORIC OF CHOICE, Professor Kent Greenfield rejects contractarian justifications for existing corporate governance arrangements. Greenfield advances this critique on two grounds. First, relying on behavioralist scholars, he accepts the demise of the rational actor model and, accordingly, opposes the contemporary use of choice as a construct that legitimates current corporate governance approaches. Second, Greenfield refracts his analysis through the prism of Progressive thought and values.

Greenfield’s approach is disturbing for two reasons. First, he fails to notice that behavioralist scholars often rely on experimental data, while law and economics scholars rely …

Employee Free Choice Or Employee Forged Choice? Race In The Mirror Of Exclusionary Hierarchy, Harry G. Hutchison

Harry G. Hutchison

The Employee Free Choice Act (EFCA) is arguably the most transformative piece of labor legislation to come before Congress since the enactment of the National Labor Relations Act of 1935 (NLRA). Putting the potential impact of the EFCA in historical perspective, one commentator contends that the NLRA marked the culmination of a systematic effort of the Progressive Movement that dominated so much of American intellectual life during the first third of the twentieth century. As it was widely acknowledged at the time, the NLRA was revolutionary in its implications for American Labor Law. Less widely recognized were the adverse effects …

Liberty, Liberalism And Neutrality: Labor Preemption And First Amendment Values, Harry G. Hutchison

Harry G. Hutchison

In Chamber of Commerce et al v. Edmund G. Brown, the Supreme Court offers one theory of judicial invalidation that protects employers’ freedom of speech claims and reinvigorates federal preemption doctrine within the meaning of the National Labor Relations Act (NLRA). Prescinding from an architectonic conception of freedom of speech that is supported forcefully and explicitly by the First Amendment, the Court relies on preemption doctrine to invalidate two provisions of a California statute because the enactment constitutes regulation, which intrudes into a zone that is protected and reserved for market freedom. The Court properly upholds its previous stance permitting …

What Workers Want Or What Labor Experts Want Them To Want?, Harry G. Hutchison

Harry G. Hutchison

Richard B. Freeman & Joel Rodgers, offer an important addition to the industrial relations literature. This work is grounded in survey methodology. The authors’ original thesis, premised on the Worker Representation and Participation Study (WRPS) which Freeman & Rogers designed more than ten years ago, concludes that there is “a large gap between the kind and extent of representation and participation workers had and what they desired.” The updated edition of their book, “What Workers Want,” does not present new or innovative polling or original empirical research directed by the authors. Instead, much of the new data cited comes from …

Work, The Social Question, Progress And The Common Good?, Harry G. Hutchison

Harry G. Hutchison

In Recovering Self-Evident Truths: Catholic Perspectives on American Law, editors Michael A. Scaperlanda and Teresa Stanton Collett offer a collection of essays that revive the connections between faith and reason and between truth and hope as the foundation for progress. Given the importance of papal encyclicals, work, and the increasing demands of the regulatory state, this article concentrates on three central and related themes that surface throughout the book: the difficulty, in America’s current epoch, of acknowledging any shared truths, the question of labor and employment policy in a pluralistic society, and the relative balance needed between state intervention on …

Against Shareholder Participation As An End In Itself: A Treatment For Mcconvill's Psychonomicosis, Harry G. Hutchison, R. Sean Alley

Harry G. Hutchison

It is possible that the director primacy model risks increased agency costs in exchange for more managerial freedom of initiative which leads to superior corporate performance while the shareholder primacy model, if viable, contributes to ex post and ex ante inefficiencies. As an empirical matter, share prices likely reflect the terms of corporate governance. Limited shareholder power is consistent with an accurate description of how corporations work as well a healthy understanding of the necessity of constraining accountability in order to preserve authority. Since we are contractarians, we prefer the director primacy model and hence we embrace shareholder weakness. Whether …

Shaming Kindergarteners? Channeling Dred Scott? Freedom Of Expression Rights In Public Schools, Harry G. Hutchison

Harry G. Hutchison

My thesis is that members of what might be called minority faiths that hold sincere but “divisive views” are likely to be placed at risk by language that reifies society’s “progressive” interest in suppression through conciliation. This process is likely to expand when school hierarchs transmute judicial language and goals into operational dogma while raising the putatively omnipresent specter of division when they confront adherents to deeply-held religious faiths and diverse practices.

I consider the recently decided Baldwinsville case as well as the split among the United States Courts of Appeal. Although I provide some analysis of the facts, the …

Liberal Hegemony? School Vouchers And The Future Of The Race, Harry G. Hutchison

Harry G. Hutchison

More than a decade ago, Professor Girardeau Spann revealed that the Supreme Court had become unreceptive to legal claims brought by, or on behalf of, racial minorities. Paradoxically, the Court's recent decision affirming the constitutionality of school vouchers as part of a program to provide improved educational opportunities to largely black children in a failed school district, implies that the "liberal" minority of the Court may be inclined to preclude programs which might protect and nurture minority interests in a first-rate as opposed to simply a public education. Whether the liberal wing of the Court is correct or incorrect, their …