Congratulations on the wedding!  Take a break from the cares of the world and concentrate on what is truly important.

 The trouble with your extreme form of legal realism is that it proves too much.  By your theory, Republicans should have all voted against (and probably filibustered against) every liberal nominee, and Democrats should do likewise for any conservative nominee.  If that occurs, we'll either get no confirmations or (more likely) confirmations only of those with no track record.  I fail to see how that would result in a better system of justice.  I pretty sure it wouldn't --- we'd likely end up with unpredictable mediocrities.  Besides, if you were correct that it's all about biases, then we should simply elect Supreme Court justices --- with all the consequences we've seen in states that already do so.

The plan the framers of the Constitution came up with is far more sound.  Under that plan, the President can nominate individuals who will naturally reflect the current President's beliefs.  The Senate can then evaluate them for competence, integrity, and fairness but (barring a few extreme cases like Nazis and Communists, perhaps) should otherwise respect the President's discretion.  In Hamilton's phrase, the goal is simply to ensure "fit characters."  In short, liberal presidents get to name liberal nominees and conservative presidents conservative nominees.  The electorate's remedy for nominations they don't like is to elect a different president.

Posted at November 4, 2005 8:10 AM in response to Fighting Alito: Why Chittister is the Key Case

Nathan's post and Jerry's comment illustrate why reading partisan blogs can be so frustrating.  They both substitute animosity and invective for reasoned analysis.  For starters, take a look at a bunch of Althouse's postings.  The vast bulk of her writing is careful, moderate commentary --- just the sort of thing we should expect from a law professor.  Even when she disagrees vigorously with someone else, as in the case of Nathan's use of Chittister, she documents her position with chapter and verse.  On this issue, she wins hands down.  For Jerry to term her a "whackjob" says a lot more about him than about her.

As for Nathan's post, Althouse gets it right:  he starts with a conclusion (Alito is EVIL) and then selectively cites and creatively interprets the record to justify that conclusion.  Anyone wishing to judge the relative merits of Alito and Nathan would be well advised to read Alito's opinion and decide for themselves.  Althouse's Nov. 30 post, at althouse.blogspot.com, has a link to her Oct. 31 discussion of the case; that discussion in turn has a link to the FindLaw text of the case where you can read the whole thing.

The essential problem in evaluating Supreme Court nominees is that observers on the left and the right too often assume that any judicial result they dislike (e.g., interpreting a federal law to allow certain remedies but not others) reflects nothing more than a judge's bias and personal preferences.  In fact, good Circuit Court judges, both liberal and conservative, strive to apply the statutes as Congress intended them and as the Supreme Court has previously interpreted them.  Naturally there's room for debater about whether a particular judge got a particular decision right, but to assume, as Nathan does, that Alito's opinion in Chittister indicates that he hates the FMLA and will arbitrarily strike it down is just sheer partisan nonsense.

Once more:  go back and read the opinion and decide for yourself whether the author is a fanatic or a careful judge trying his best to apply the law.

Posted at November 4, 2005 5:53 AM in response to Fighting Alito: Why Chittister is the Key Case

Close but not quite.  Martha's broker is guilty even if she doesn't act on his inside information, and a CEO who uses speech to fix prices is guilty even if no one follows his suggestion.  In other words, the speech itself can be prohibited. The analogy works even if it's not exact, because the act sought in the union's request, a strike by the other employees, IS illegal even if the remedies would lie only against the initiating union.  I suspect that was part of the 1947 compromise --- forbidding a union to cause a secondary boycott but not trying to punish the employees who actually struck the secondary employer.  That's consistent with other parts of the Act that allow unfair labor practice actions only against the union as an entity rather than against the individuals who perform the acts.  Perhaps Congress assumed that the neutral employer could protect itself through self-help.
 
On the other point, I think you're way off empirically.  My reading of the secondary boycott cases suggests that most of them involve picketing to cause a secondary strike (an act), not just verbal requests.  If the Supreme Court had somehow exempted purely verbal requests from Sec. 8(b)(4) on First Amendment grounds, I imagine Congress would closed that loophole in 1959 when it closed several others.

Posted at October 16, 2005 7:38 PM in response to The Law on Secondary Strikes

The key to the analysis of this issue is the fact that secondary boycotts --- that is, conduct rather than speech --- are illegal, as they have been for almost all of our nation's history.  Speech that is intended to induce illegal conduct can thus be prohibited in this context as in others without violating the First Amendment.  If that were not the case, Martha Stewart's broker couldn't be prosecuted for giving her inside information, crooked CEOs couldn't be prosecuted by conspiring through their telephone calls, and so on, ad infinitum.  The courts have never interpreted the First Amendment as absolute, and the law on secondary boycotts is not out of line with the law on most other aspects of speech.  When Congress changes the law to allow secondary boycotts, speech and picketing to cause them will also be protected.

 In contrast, unions in these cases are free to engage in all the speech they want in support of their primary conduct, including asking people not to work for the picketed employer, not to cross primary picket lines, and not to buy the products produced by the struck employer.

Posted at October 16, 2005 6:37 PM in response to The Law on Secondary Strikes

So Nathan's real beef IS with the ban on secondary boycotts after all.  It's hardly worth arguing about that --- they were against state law for many, many decades before Congress passed the Wagner Act, have been against federal labor law since 1947, and will likely be against the law forever.  Yes, there are good reasons for that ban.  Secondary boycotts enormously widen the scope of a labor dispute and injure many people --- workers as well as employers --- who have no part in the primary dispute.  When the other employers actually do become allies of the primary employer, for example when a subcontractor performs struck work, the union can picket and strike them, too.  That's a very reasonable balance struck by Congress and maintained ever since, no matter which party controls Washington.

 The "slave labor" argument was silly when unions made it in 1947, silly when they repeated it during the Landrum-Griffin debates in 1959, and silly now.  All it did was take the unions out of the debate, so that the final versions of those laws were drafted with minimal union input.  Even the pro-labor senators in those years got frustrated with unions who refused to participate in negotiations even over such obviously improper conduct as "blackmail picketing" (to force an employer to violate the law) or mob looting of union pension funds.

No law forces workers to "stay working or face contempt of court proceedings."  Any worker can quit any job he or she finds repellant, even if the reason is to support some other union.  That's why there's no "slavery" involved in the ban on secondary boycotts.  The only thing they may not do is to "strike" (that is, refuse to work without quitting the job) against some employer other than the one with which the union has a dispute.

 Nathan keeps trying to turn this into a free speech issue.  It isn't.  Unions and their supporters can call the employer any nasty name in the book without violating the law.  They can urge the primary employer's employees to strike, can persuade replacements not to enter the struck workplace, can ask the public to boycott the offender, and any number of other things.  They can give speeches, hold rallies, publish books and articles, go on TV or radio, and write diatribes in blogs.  All that amounts to free speech.  When they seek to coerce others, however (and that's what causing a strike at some neutral employer's business amounts to), the law quite properly makes them liable to injunctions and damages.

 But all this is old hat.  Labor fought that battle in 1947 and several times thereafter, losing each time.  So far as I can tell, there's absolutely no sentiment in Washington or anywhere else outside of the labor blogs for changing the law at this late date.  Trying to fight on that front now would only divert resources from battles that might be winnable.

Posted at October 15, 2005 10:31 AM in response to How Courts Shut Down Union Free Speech

To respond to Scylla's questions:

US law allows primary strikes and picketing --- that is, activity directed against the employer with whom the union has the dispute.  It forbids secondary strikes and picketing, that is, activity directed against OTHER employers such as suppliers and customers (and in the construction situation, other subcontractors).  It's perfectly legal for members of another union to honor a picket line at the primary employer's place of business, although if the second union's collective bargaining agreement waives its members' rights to engage in sympathy strikes, those employees would be subject to discipline by their own employer.  "Hoping" that other employees will respect the picket line ISN'T against the law; engaging in seconday activity to force them or their employers to do so IS.

 General strikes are a pipe dream here, especially with private sector union density now expressed in a single digit.  In theory, though, a general strike would be legal, provided it didn't involve secondary activity or violate general laws like those forbidding trespass, interfering with traffic, or the like.

Posted at October 15, 2005 9:01 AM in response to How Courts Shut Down Union Free Speech

One P.S. on the Ruzicka case itself.  The decision condemned by Nathan affirmed dismissal of some of the employer's claims and simply remanded for trial two others, one for invasion of privacy and one for damages for violation of the ban on secondary boycotts.  the trial court had dismissed the charges without submitting them to the jury.

The invasion of privacy claim involved allegations that private investigators hired by the union went to the company owner's house, went onto his property, and videotaped him and his family at 11 on a Saturday night.  If true, that would almost certainly constitute an invasion of privacy.  The only way to determine whether it was true, was through a trial at which the jury would determine the facts.  That is just what the 8th Circuit ordered.

The court's decision was the same on Ruzicka's claim for damages because of the union's secondary activity.  The court found that Ruzicka had presented sufficient evidence to merit a jury decision on its claim that the union's picketing had violated Section 8(b)(4) of the National Labor Relations Act, despite the union's denial.  It therefore remanded for a jury decision on the merits of the claim.

After reading the decision, I can't for the life of me figure out why Nathan regards it as shocking.  This is just a run-of-the-mill decision, like hundreds of others that fill the pages of the federal reports.  Union's occasionally violate the law, just as employers do.  When they violate Section 8(b)(4) or invade someone's privacy, they get sued.  That's a big deal?  Perhaps Nathan is still mad that Congress banned secondary boycotts nearly 60 years ago, but that fight is long over.  Like it or not, the law is the law, and anyone who breaks it has to be prepared to pay the penalty.

Posted at October 15, 2005 8:44 AM in response to How Courts Shut Down Union Free Speech

Cross-posted from Nathan's blog:

There's nothing new or shocking about this decision.  Except for the briefest of periods, 1935-47, secondary boycotts have always been illegal in the US, for good reason.  The law of secondary boycotts is pretty complex, though, and it's easily misunderstood.  Here are a few of the basics.

It isn't accurate to say that this is simply a "speech" question.  In this area as in others, courts have traditionally recognized that picketing is "speech plus" (that is, an act combined with speech) and can therefore be regulated more closely than "pure" speech.

Nor is  it accurate to say that the union would commit a "crime" if it "asks for help."  First of all, a violation of the National Labor Relations Act is not criminal:  it is a civil violation remedied by an injunction and subject to damages, just as an employer's unfair labor practice could be.  If the NLRB's order is enforced by a court, after a full hearing, a further violation would amount to contempt of court, but that too would normally be a civil violation.  [Addition:  The Muniz case to which Nathan cites proves the point:  the union there first violated the NLRA, then violated a court order and was found in civil contempt.  Only after it continued the violations was it found in civil contempt.  In that respect, it was like J.P. Stevens and other rogue employers whose repeated violations led to criminal contempt proceedings.]

 Second, and more important, the union remains free to picket the primary employer, both at its main offices and wherever it performs work.  No doubt the general contractor has established or would establish a reserved gate where the picketing can take place.

Third, the union also remains free to engage in non-picketing requests for help such as handbilling, speeches, advertisements, consumer boycotts, etc.  The only thing the NLRA forbids in this context is a secondary boycott, such as  picketing OTHER employers to force them to cease doing business with the primary employer.

Posted at October 15, 2005 8:10 AM in response to How Courts Shut Down Union Free Speech

I doubt if there's any feasible way for independent contractors to bargain collectively.  If two or more employers combine to set their charges, it's legally a combination in restraint of trade.  That opens them up to treble damage actions, injunctions, and even criminal penalties.  Some years ago, lawyers in DC who accepted public defender appointments tried to organize and were immediately hit with antitrust threats.  The same thing would happen with truck drivers and others, assuming that they were independent contractors in fact rather than in name.  It doesn't make any difference whether they try to do it through a state law (which is preempted by federal law) or through "direct action."

Posted at July 24, 2005 7:27 PM in response to New Jersey Passes Card Check Legislation

The law may have a slight effect on some occupations, but many of those listed raise serious federal legal questions.  An attempt by independent contractors to organize risks antitrust violations.  Covering those deliberately excluded from the Wagner Act (like supervisors) and those covered by another federal labor law (like railway workers) runs into the preemption doctrine. There may not be many employees of Indian tribes in NJ, but I'd expect the them to argue strenuously that a state cannot impair their sovereign power over their own employees.  I trust NJ has budgeted for the legal expenses it will incur in litigating those items.  In any event, the law is likely to have more symbolic than practical effect.

Posted at July 23, 2005 3:07 PM in response to New Jersey Passes Card Check Legislation