Law Commons^™

Mandatory Agency Dues: Beneficial Or A First Amendment Violation?, Steph Nathaniel

GGU Law Review Blog

Unions have long been recognized as a major cornerstone to American culture – they have helped ensure fair wages, hours, and benefits for American workers for over a century. However, the question has continuously come up in legal discourse of whether unions modernly maintain their importance and effectiveness as exclusive bargaining representatives. This question raises an array of issues – one of those being whether public employees should be required to pay union dues when they are not members and do not support the union.

A case recently before the Supreme Court could end laws in 22 states that requires …

The Motive Power In Public Sector Collective Bargaining, Martin Malin

All Faculty Scholarship

In the private sector, George Taylor referred to the strike as providing the “motive power” in collective bargaining. A major reason behind the enactment of public employee collective bargaining laws is to reduce the interruption of public services from job actions. This was the case with the enactment of New York’s Taylor Law.This paper, written for a conference commemorating the 50th anniversary of the Taylor Law and published in a special issue of the Hofstra Labor and Employment Law Journal focused on the Taylor Law, examines what, in the absence of a right to strike, provides the motive power for …

Crossing The Thin Blue Line: Protecting Law Enforcement Officers Who Blow The Whistle, Ann C. Hodges

Law Faculty Publications

Law enforcement makes headline news for shootings of unarmed civilians, departmental corruption, and abuse of suspects and witnesses. Also well-documented is the code of silence, the thin blue line, which discourages officers from reporting improper and unlawful conduct by fellow officers. Accordingly, accountability is challenging and mistrust of law enforcement abounds. There is much work to be done in changing the culture of police departments and many recommendations for change. One barrier to transparency that has been largely ignored could be eliminated by reversal of the Supreme Court’s 2006 decision in Garcetti v. Ceballos. Criticism of the decision has …

A Few Observations About The Curious State Of Massachusetts Labor Law: Public-Sector Unions After Janus, Maria O'Brien

Faculty Scholarship

This essay focuses on this hurried, even panicked response to Janus in Massachusetts and evaluates the likely outcome that encouraging a public union to treat member employees in one way and non-member employees in a distinctly less generous way will have for employees and the unions. I begin, in Part II, by noting (and explaining) the first and most apparent oddity in this story: why is an employer - i.e. the state - rushing to help its putative, arms-length bargaining partners? In Massachusetts, there are many different public-sector unions. School teachers, ¹³ firefighters,¹⁴ clerical workers, ¹⁵ state and local …

Reply Brief. Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark

Court Briefs

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” …

Petition For A Writ Of Certiorari, Crouse V. Caldwell, 138 S.Ct. 470 (2017) (No. 17-242), Eric Schnapper, Steven H. Goldblatt, Shon Hopwood, Marybeth Mullaney, Jennifer Munter Stark

Court Briefs

QUESTIONS PRESENTED (1) When disputes of fact arise regarding whether speech by a public employee is protected by the First Amendment, should those factual issues be resolved by a trier of fact (the rule in the Second, Third, Sixth, Eighth and Tenth Circuits), or by the court as a matter of constitutional law (the rule in the Fourth Circuit)? (2) When a government employee engages in speech on a subject of public concern, and a court applying Pickering balances the First Amendment interest against any contrary interests of the employer, should the extent of that First Amendment interest be “lessened” …

Checking The Government’S Deception Through Public Employee Speech, Helen Norton

Publications

No abstract provided.

Optimizing Government For An Optimizing Economy, Cary Coglianese

All Faculty Scholarship

Much entrepreneurial growth in the United States today emanates from technological advances that optimize through contextualization. Innovations as varied as Airbnb and Uber, fintech firms and precision medicine, are transforming major sectors in the economy by customizing goods and services as well as refining matches between available resources and interested buyers. The technological advances that make up the optimizing economy create new challenges for government oversight of the economy. Traditionally, government has overseen economic activity through general regulations that aim to treat all individuals equally; however, in the optimizing economy, business is moving in the direction of greater individualization, not …

What Is A Lien? Lessons From Municipal Bankruptcy, David A. Skeel Jr.

All Faculty Scholarship

From the outset of Detroit’s bankruptcy, an unlikely set of issues kept coming up: What exactly is a lien? Who has a property interest or its equivalent in bankruptcy? Did general obligation bondholders have special status, due to Detroit’s promise to use its “full faith and credit” for repayment? What about Detroit’s pension beneficiaries, who could point to a provision in the Michigan Constitution stating that accrued pension benefits cannot be diminished or impaired. In this Article, I explore these and related issues that have arisen in Detroit and other recent municipal bankruptcy cases.

Part I of the Article briefly …

Not My Job: Determining The Bounds Of Public Employee Protected Speech, Stephen Allred

Law Faculty Publications

This article reviews the Supreme Court’s rulings in public employee free speech cases, discusses the significant departure from precedent that Garcetti made to those cases, summarizes the Court’s most recent ruling in Lane, and argues that the Court should return to the broader standard the Court originally announced in Pickering.

Brief For Respondent. Madigan V. Levin, 571 U.S. 1 (2013) (No. 12-872), 2013 U.S. S. Ct. Briefs Lexis 3187, Eric Schnapper, Harvey Levin, Edward Theobald

Court Briefs

No abstract provided.

Introduction: Guaranteeing The Rights Of Public Employees, Kenneth G. Dau-Schmidt, Ann. C. Mcginley

Articles by Maurer Faculty

No abstract provided.

Petition For A Writ Of Certiorari. Opp V. Office Of The State's Attorney Of Cook County, 565 U.S. 815 (2011) (No. 10-1163), 2011 U.S. Lexis 6893, Eric Schnapper, Brian R. Holman, Dennis H. Stefanowicz, Tara Beth Davis, Susan Bogart

Court Briefs

QUESTION PRESENTED Five major federal employment statutes, including in this case the Age Discrimination in Employment Act, exclude certain government workers "at the policymaking level" from the definition of employees protected by those laws. The question presented is: who is a worker "on the policymaking level"?

Constraining Public Employee Speech: Government's Control Of Its Workers' Speech To Protect Its Own Expression, Helen Norton

Publications

This Article identifies a key doctrinal shift in courts' treatment of public employees' First Amendment claims--a shift that imperils the public's interest in transparent government as well as the free speech rights of more than twenty million government workers. In the past, courts interpreted the First Amendment to permit governmental discipline of public employee speech on matters of public interest only when such speech undermined the government employer's interest in efficiently providing public services. In contrast, courts now increasingly focus on--and defer to--government's claim to control its workers' expression to protect its own speech.

More specifically, courts increasingly permit government …

Employee Speech & Management Rights: A Counterintuitive Reading Of Garcetti V. Ceballos, Elizabeth Dale

UF Law Faculty Publications

In the two years since the decision came down, courts and commentators generally have agreed that the Supreme Court's decision in Garcetti v. Ceballos sharply limited the First Amendment rights of public employees. In this Article, I argue that this widely shared interpretation overstates the case. The Court in Garcetti did not dramatically change the way it analyzed public employees' First Amendment rights. Instead, it restated the principles on which those claims rest, emphasizing management rights and the unconstitutional conditions doctrine. By making those two theories the centerpiece of the decision, the Court in Garcetti defined public employee speech rights …

Government Workers And Government Speech, Helen Norton

Publications

This essay, to be published in the First Amendment Law Review's forthcoming symposium issue on Public Citizens, Public Servants: Free Speech in the Post-Garcetti Workplace, critiques the Supreme Court's decision in Garcetti v. Ceballos as reflecting a distorted understanding of government speech that overstates government's own expressive interests while undermining the public's interest in transparent government.

In Garcetti, the Court held that the First Amendment does not protect public employees' speech made "pursuant to their official duties," concluding that a government employer should remain free to exercise "employer control over what the employer itself has commissioned or created." …

Balancing Act : Public Employees And Free Speech, David L. Hudson Jr.

Law Faculty Scholarship

More than 20 million Americans work for federal, state or local governments. Sometimes these employees are disciplined for speaking out against government corruption, belonging to a particular political party, criticizing agency policy or engaging in private conduct of which the employer disapproves. Granted, government employers need some leeway when dealing with their employees. After all, the primary function of a government agency is to provide efficient services to the public, and if a government employer were second-guessed every time it disciplined a public employee, services could grind to a halt. On the other hand, such employers do not have unfettered …

Restricting Public Employees' Political Activities: Good Government Or Partisan Politics?, Rafael Gely, Timothy D. Chandler

Faculty Publications

The article starts by reviewing, in Part II, the history of the regulation of political activities by public employees, and in Part III, the regulation of patronage. Part IV develops the argument that both sets of regulations, although justified on different grounds, are better understood as political control mechanisms. Part V provides some empirical evidence for this argument by examining voting patterns on federal legislation restricting public employees' political activities. Part VI discusses the relationship of these laws to public sector unionization. Part VII concludes the article.

Municipal Ethics Remain A Hot Topic In Litigation: A 1999 Survey Of Issues In Ethics For Municipal Lawyers, Patricia E. Salkin

Scholarly Works

No abstract provided.

1998 Survey Of Ethics In Land-Use Planning, Patricia E. Salkin

Scholarly Works

No abstract provided.

Introduction (Symposium On Municipal Liability), Patricia E. Salkin

Scholarly Works

No abstract provided.

The Interplay Of Civil Service And Collective Bargaining Law In Public Sector Employee Discipline Cases, Ann C. Hodges

Law Faculty Publications

This article undertakes such a review with respect to one aspect of the potential conflict between merit systems and collective bargaining- employee discipline and the appeal of discipline decisions. Protection from arbitrary or unjust discipline is a primary motivation for employee unionization. As a result, achieving protection from unjust disciplinary action becomes a fundamental goal of unions in collective bargaining. Public sector unions in the United States are particularly interested in "discipline, grievance procedures and organizational due process"....

Section IV of this article reviews the approaches of the various states that have addressed the issue, analyzing them in light of …

The Steelworkers Trilogy In The Public Sector, Ann C. Hodges

Law Faculty Publications

This article will examine the role of the Trilogy principles, including the public policy exception, in judicial enforcement of arbitration agreements in the public sector. First the article will review the applicable law in the private sector regarding judicial arbitration enforcement. Then, the article will discuss the role of the courts in public sector arbitration, concluding that while courts frequently pay lip service to the Trilogy principles, in reality they often fail to apply them. Finally, the article will analyze the arguments for and against application of the deferential Trilogy standards in the public sector in light of the distinctive …

The Personal Accountability Of Public Employees, Robert Vaughn

Articles in Law Reviews & Other Academic Journals

INTRODUCTION: The most important developments in the nature of the public employment relationships have been those which increased the personal accountability of public employees. Civil service systems, particularly in regulatory areas, have been criticized as insulating public employees and removing incentives to perform their public duties.' Recent judicial decisions developing tort liability of public employees and the recent action of the United States Congress in passing the Freedom of Information Act [FOIA) sanctions provision portend future use of the concept of personal accountability as a means of controlling administrative abuse. Throughout deliberation on the FOIA sanctions provision, opposition to the …

Elfbrandt V. Russell: The Demise Of The Loyalty Oath, Jerold H. Israel

Book Chapters

In Elfbrandt v. Russell, the Supreme Court, in a 5-to-4 decision, declared unconstitutional Arizona's requirement of a loyalty oath from state employees. At first glance, Elfbrandt appears to be just another decision voiding a state loyalty oath on limited grounds relating to the specific language of the particular oath. Yet, several aspects of Mr. Justice Douglas' opinion for the majority suggests that Elfbrandt is really of far greater significance: it may sharply limit the scope and coverage of loyalty oaths generally and, indeed, may presage a ruling invalidating all such oaths. Of course, only the Supreme Court can determine this. …

Final Offer Arbitration: The Last Word In Public Sector Labor Disputes, Rena C. Seplowitz

Scholarly Works

No abstract provided.

The Private Lives Of Public Employees, Robert M. O'Neil

Articles by Maurer Faculty

No abstract provided.

Of Justice Delayed And Justice Denied: The Welfare Prior Hearing Cases, Robert M. O'Neil

Articles by Maurer Faculty

No abstract provided.

Public Employment, Antiwar Protest And Preinduction Review, Robert M. O'Neil

Articles by Maurer Faculty

No abstract provided.

Unconstitutional Conditions Upon Public Employment: New Departures In The Protection Of First Amendment Rights, Harold H. Bruff

Publications

No abstract provided.