Regulation of the labor market doesn’t come for free, and many of its costs fall on low-skilled workers, especially in states like California, writes employer Warren Meyer [Regulation Magazine]
Plus: how he came to write and revamp the piece, with a bit of help from yours truly [Coyote]
“Responding to the surge of website accessibility lawsuits filed under Title III of the ADA, 103 members of Congress from both parties sent a letter to Attorney General Sessions urging action to stem the tide of website accessibility lawsuits.” The group is led by Ted Budd (R-N.C.) and J. Luis Correa (D-Calif.) [Minh N. Vu and Samuel Sverdlov, Seyfarth Shaw]
Related, more trouble coming down the road: “The World Wide Web Consortium just published an expanded version of the WCAG to add 17 more requirements to address new technologies and other digital barriers for individuals with disabilities.” [Kristina M. Launey and Minh N. Vu, Seyfarth Shaw]
And yet more: federal-level reform is one thing, but a California state court decision in Los Angeles sets the stage for costly liability under the state Unruh Act no matter how Washington goes.
“It can’t be overstated what a procedural and logistical nightmare it is to get a car impounded in the city of Chicago.” [C.J. Ciaramella, Reason] Related, Atlanta area: “Lawsuit claims Doraville officials writing tickets for profit, not enforcement” [WXIA, Kaitlyn Schallhorn, Fox News] And Pagedale, Mo., a small St. Louis suburb, has agreed “to stop bankrolling itself by fining its residents into the poorhouse.” [Scott Shackford, Reason]
Eric Goldman, “A Privacy Bomb Is About to Be Dropped on the California Economy and the Global Internet”:
By tomorrow, the California legislature likely will pass a sweeping, lengthy, overly-complicated, and poorly-constructed privacy law that will have ripple effects throughout the world. While not quite as comprehensive as the GDPR, it copies some aspects of the GDPR and will squarely impact every Internet service in California (some of whom may be not currently be complying GDPR due to their US-only operations). The GDPR took 4 years to develop; in contrast, the California legislature will spend a grand total of 7 days working on this major bill. It’s such a short turnaround that most stakeholders won’t have a chance to participate in the legislative proceedings. So the Internet is likely to change radically tomorrow, and most people have no clue what’s coming or any voice in the process.
As bad as this sounds, the legislature’s passage of the bill is likely the GOOD outcome in this scenario. What could be worse?
Read on in the post for a discussion of the peculiar dangers of the contemporary California initiative process. And as predicted, the bill did pass, unanimously [Issie Lapowsky, Wired]
The Supreme Court has agreed to take up the question of whether the Bill of Rights’s Excessive Fines Clause applies to the states [Eugene Volokh] Because the case involves a state’s claim to a seized vehicle, it might also permit the Court to address issues of the constitutionality of asset forfeiture [Ilya Somin, Nick Sibilla, IJ petition for cert in Timbs v. Indiana]
My new opinion piece for the New York Post: “Even after a king we regard as benign steps down, we might want to reflect whether kingship is a good thing….Both Kennedy and O’Connor were famously reluctant to lay down clear rules for future cases, preferring to leave options open for the exercise of their sense of fairness.
“Yet a sense of fairness provides no steady and stable basis for future cases. In the old courts of equity run by England’s Lord Chancellor, it came to be said that ‘Equity is as long as the Chancellor’s foot.’ As John Selden explained in the 17th century: ‘One Chancellor has a long foot, another a short foot, a third an indifferent foot: ’tis the same thing in a Chancellor’s conscience.'”
“A federal court in California dismissed climate change lawsuits by the cities of San Francisco and Oakland against five oil companies, saying the complaints required foreign and domestic policy decisions that were outside its purview.” [Reuters; opinion in Oakland v. BP] Judge William Alsup of the federal district court in San Francisco had gathered extensive evidence before granting the defendants’ motion to dismiss for failure to state a claim.
Andrew Grossman has a thread (courtesy ThreadReaderApp) quoting high points from the ruling, including the “breathtaking” scope of plaintiffs’ theory (“It would reach the sale of fossil fuels anywhere in the world”), the circumstance that all of us, as distinct from some defendant class only, have benefited from the use of energy, the suitability of the problem for a legislative or international solution rather than judicial invention of new law, and the flagship status of the case (The San Francisco and Oakland suits were the most high-profile so far, and Judge Alsup is well known and respected).
More: Tristan R. Brown, Real Clear Energy; Federalist Society written debate on climate change as mass tort, with Dan Lungren, Donald Kochan, Pat Parenteau, and Rick Faulk; earlier here, here, here, here, here, here, and generally]
In yesterday’s Janus v. AFSCME Council 31, the Supreme Court ruled in an opinion by Justice Samuel Alito that the practice of requiring public employees to pay “agency fees” to unions to engage in collective bargaining, including the pursuit of demands concerning workplace policy that may be antithetical to the worker’s own views, is a violation of the First Amendment’s restrictions on compelled speech. The ruling was 5-4 along conservative-liberal lines.
In her dissent on behalf of the four liberals, Justice Elena Kagan outlined the so-called free-rider problem that has been said to justify requiring public employees to pay union fees [citation to 1991 paper omitted]:
Employees (including those who love the union) realize that they can get the same benefits even if they let their memberships expire. And as more and more stop paying dues, those left must take up the financial slack (and anyway, begin to feel like suckers)—so they too quit the union. And when the vicious cycle finally ends, chances are that the union will lack the resources to effectively perform the responsibilities of an exclusive representative—or, in the worst case, to perform them at all. The result is to frustrate the interests of every government entity that thinks a strong exclusive-representation scheme will promote stable labor relations.
The free-rider argument is a weak one on its own terms, even if you leave aside Justice Alito’s observation for the majority that free-rider economic arguments are ordinarily not expected to override First Amendment concerns. To begin with, unions not only still exist in the U.S. states (a majority) that have enacted “right to work” laws curbing agency fees, but sometimes wield much political clout. Janus does not spell a death knell for public unions that provide their members with value.
Moreover, as Cato scholars Trevor Burrus and Reilly Stephens have pointed out, European unions have developed along somewhat different institutional lines: they rely less on models of exclusive bargaining representation and more on collective social representation and solidarity (often linked to direct involvement in provision of fringe benefits and other valued services). Far from being weakened by their departure from the “American” model of exclusive collective representation, they seem to be in many ways more formidable than are American unions.
Expect state and local governments that are closely allied with the political interests of unions to scramble now to enact measures meant to evade Janus. Here is a description of what just happened in California, from Joel Fox at the political site Fox and Hounds:
SB 866 would cement union control over access to individual employee decisions on whether to continue paying union dues, should mandatory agency fees be deemed unconstitutional. …Key elements of the bill include:
- Requiring for any school teacher, state firefighter, college professor, prison guard, environmental regulator, or any of the hundreds of other classes of state and school employees who may wish to reduce or eliminate their mandatory union dues, that they make this request exclusively to the union rather than to their employer.
- Unions would not be required to provide the actual authorizations for dues deduction to the school board or State Controller, but instead would merely certify to the public agency’s payroll department as to who is or is not paying union dues. Public employers must rely on the unions’ representations regarding dues deductions.
- Unions would indemnify public employers over claims made by individual employees for deductions made in reliance on union representations.
- Employees would be prohibited from contacting their employer directly regarding union dues deductions.
- A public employer may not send mail or email to its employees, or provide an oral presentation, about their right to join or refrain from joining a union, unless the employer facilitates delivery of similar messages from the union.
- Government employee unions currently have access to orientation sessions for new employees. This bill would limit disclosure of the date, time and place of these sessions to the employees and unions only. Members of the public and taxpayers would be kept in the dark about meetings of public officials.
If signed by Governor Brown, the measure would take effect immediately.
The California bill was rushed through both houses in quickstep fashion as a budget trailer bill and was signed by Gov. Brown yesterday. Note, however, that section VII of Alito’s opinion, by requiring affirmative consent for fee withholding rather than allowing assumed waiver, could foil some of the scheme above.
Note also our March post on how unions may be planning to reclassify some workers from public to private in order to get around Janus, including workers who had earlier been reclassified from private to public to benefit the same unions.
[cross-posted and expanded from Cato at Liberty] More: earlier, Roger Pilon, Ilya Shapiro (“Today’s decision at long last remedies this violation of all workers’ rights to the freedom of speech and association”), Cato podcast with Caleb Brown and Trevor Burrus.