Friday, March 16, 2018

McCabe Will Get Last Laugh: Here’s Why

Let’s assume that Attorney General Sessions had a right to fire Andrew McCabe for dishonesty—even though Sessions failed to disclose under oath that he met with Russians on at least two occasions.
The right to fire is not the right to humiliate. Employers who pile on during a termination face heavy damages.
In short, here are some likely “last laughs” that McCabe will have once he sues.
For openers, he’ll have discovery. He’ll be able to get documents and depose people such as Sessions and the president to establish motive for discrimination.
What kind of discrimination, you say? Federal, state and private sector pension laws prohibit discrimination. Yes, in public plans termination can also end a pension. But why did Sessions wait for the Friday night news dump to fire McCabe at the last possible moment? If this creates a “preponderance of evidence” (51%) of intent to exact some form of political revenge, the pension can be restored.
Our class looks at cases in the public and private sector where employers are just brutally mean. In one, a 61-year-old vice president was given a choice between resigning with three months’ severance or being demoted to a warehouse as a janitor with six-figure pay. He took the latter. He was then subjected to unrelenting harassment. He eventually was put in a psychiatric hospital, where he stayed for four years. $3.2 million dollars later, the employer learned that firing him would have cost nothing—but humiliating him was very expensive (emotional distress).
We study the case of a school janitor in a town of 800 people who was suspected of stealing from the school. He was arrested in the morning while kids were present, and marched out in handcuffs. The whole town knew. He couldn’t get a job there. The federal appeals court ruled that whether he stole or not, the district had no right to drive him out of the labor market by participating in this intentionally stigmatizing behavior.
That’s what we have here: an intentionally stigmatizing termination. Tonight and through the weekend, McCabe will be fodder for tweets and Fox News headlines. The damages will only pile up.

Tuesday, March 13, 2018

How The Ku Klux Klan Might Read “Keep America Great!” KIGY! & KAG!

By chance, I listened to President Trump’s speech on Saturday when he mentioned his new campaign theme for 2020. The way he said it jarred me: “Keep American Great, exclamation point.” Just as Make America Great Again became MAGA, I would think that Keep America Great! will morph into KAG!
Having researched the KKK, I have learned that the Klan has an underground vocabulary. The Southern Poverty Law Center—the best source for KKK information—lists the Klan’s secret vocabulary.
It includes this: “KIGY!: A password meaning "Klansman, I greet you!”

Is KAG! a shout out-- a presidential greeting-- to the Klan? There is no definitive way to know. Still, the exclamation point caught my attention immediately. Will it have the same effect on KKK members?

K words and K acronyms are used frequently by the KKK: Klaliff – vice president; Klokard – lecturer; Kludd – chaplain; Kligrapp – secretary; Klabee – treasurer; Kladd – "conductor", in charge of initiating new members; Klarogo – inner guard, serjeant-at-arms; Klexter – outer guard; Klokard (officers at the Province and Realm level); Klazik Head of the department of the realm; Klokann is a group of three Klokans (officers); Kloncilium is a supreme governing council; Kalendar: Klan calendar, which dates events from both the origin and its 1915 rebirth Anno Klan, and means "in the year of the Klan," and is usually written "AK"; Kardinal Kullors: White, crimson, gold and black. Secondary Kullors are grey, green and blue. The Imperial Wizard's Kullor is Skipper Blue; K.B.I.: Klan Bureau of Investigation; KIGY!: A password meaning "Klansman, I greet you!"; Klankfraft: The practices and beliefs of the Klan; Klanton: The jurisdiction of a Klavern; Klavern: A local unit or club; also called "den"; Kleagle: An organizer whose main function is to recruit new members. In some Klans, he gets a percentage of the initiation fees; Klectokon: Initiation fee; Klepeer: Delegate elected to Imperial Klonvokation; Klonkave: Secret Klavern meeting; Klonverse: Province convention; Kloran: Official book of Klan rituals; Klorero: Realm convention.

Monday, March 12, 2018

Revisiting Auschwitz: Its Bookkeeper Has Died in Prison

Oskar Gröning, the “Bookkeeper of Auschwitz,” died last week at age 96.
I pass along excerpts of his lengthy obituary in the New York Times. In doing so, I’ve taken the liberty of highlighting facts that I believe show clear guilt, and those that are mitigating. These are my judgments—the question is, how do you judge these facts? Feel free to post on FB or write privately to me at
Guilt: Gröning volunteered to work in Auschwitz. While working at the death camp, he kept ledgers of money brought to Auschwitz by Jews on the pretense that they were being relocated for safety and a new life. His ledgers recorded currency taken in the form of Polish zlotys, Greek drachmas, French francs, Dutch guilders, Czech korunas, Italian lire, among others.
He led a privileged life in Auschwitz, dining on tinned sardines, bacon, vodka and rum. He admits that he knew that he received special treatment for his work.
Gröning admitted that he was present on two occasions when Jews were killed: when a camp guard smashed an abandoned baby’s head against the metal side of a truck; and when escaped Jews were cornered in a farmhouse and gassed. 
His defense? He didn’t kill; he observed the killings.
Mitigation: He was brainwashed at an early age to view Jews as enemies of the German people.
In court as a 94 year old defendant, Gröning said: “It is beyond question that I am morally complicit. This moral guilt I acknowledge here before the victims with regret and humility.”
But “as concerns guilt before the law,” he added, “you must decide.”
After Auschwitz, he never spoke of his experiences—that is, until a fellow stamp collector told Gröning that the Holocaust was a hoax. Gröning wrote a note to the man saying: “I saw everything — the gas chambers, the cremations, the selection process. One and a half million Jews were murdered in Auschwitz. I was there.”
Later, he wrote an 87-page memoir about his experiences. In 2005, he recorded nine hours of taped interviews for a BBC documentary.
Gröning was accused as an accomplice in the murder of some 300,000 Hungarian Jews who had been transported to Auschwitz in 1944. This would have included my grandparents, aunts, and uncles. For me, his testimonials to history are more important than determining his guilt and incarcerating him. With deeply mixed emotions, I value his moral confession and bearing witness to the horrors of Auschwitz.

Saturday, March 10, 2018

Two Illegal Immigrants, Mexican & Jewish: Same Voices

An illegal Mexican, Anthony Claude Acevedo, crossed the U.S. border— after he was deported— to join the U.S. Army during WWII. Mr. Acevedo died last month. After he enlisted, he was trained as a medic. In early 1945, he and hundreds of soldiers were captured by Nazis.

Similar to current thinking among America First “nationalists,” Nazis separated Jewish soldiers and this Mexican medic. The solidiers' experiences in a special POW camp for “undesirables” was horrifying, even by Nazi standards.
Shortly after the Berlin Wall came down and Germany was unified, my father wrote to the Wall Street Journal. For a man who came illegally to the U.S.—on false papers and a false name (from Otto Lefkovits to Robert LeRoy), his written account is perfectly haunting. My dad learned English—and so did Mr. Acevedo, who chronicled the cruelty suffered by his American compatriots.
Anyone who takes a minute or two to read testimonies from Mr. LeRoy (just click on top photo for enlargement) and Mr. Acevedo ( will be fortified to speak out and act against the popular hate of our times.

(Technical note: Crossing the U.S. border without permission is termed "unlawful entry." It is unlawful but not criminal. Crossing the border after you are deported is a criminal offense, and so is presenting false documents to border officials. Here, both men were truly illegal aliens.)

Friday, March 9, 2018

How John Lennon and Yoko Ono “Created” DACA— Amazing Intrigue

Everyone seems to know about DACA—but where did this presidential authority come from, and is it valid? DACA stands for Deferred Action for Childhood Arrivals. See the words in red, “Deferred Action?” It comes from a president’s inherent powers under immigration law to defer deportation. It’s somewhat similar to a prosecutor’s discretion. Prosecutors often agree to a plea deal where the defendant takes responsibility for a lesser offense. "Deferred Action" means a person is deportable but the U.S. will hold off removal.
Until today, I never knew the origin of this power. A law review article by Shoba Sivaprasad Wadhia, The Role of Prosecutorial Discretion in Immigration Law (2010), gives us the following explanation (which I quote in full):

The use of prosecutorial discretion and the “nonpriority program” specifically was revealed by INS in 1975 as a consequence of a lawsuit involving John Lennon and Yoko Ono. Before this time, the  nonpriority program was a secret operation of the INS. Leon Wildes represented the couple and has since written extensively about the nonpriority program.
As described by Wildes, John Lennon entered the United States in the summer of 1971 as a visitor and was thereafter placed in deportation proceedings for overstaying his visa. Lennon and his wife came to the United States in order to assume custody of Kyoko, Yoko Ono’s daughter from a previous marriage. While Lennon and Ono were awarded custody over Kyoko by the family court, their situation was complicated by the fact that the child’s father had kidnapped Kyoko and could not be found.
Because he believed he was charged with deportation for political reasons, Lennon requested for nonpriority status, among other forms of relief. Through his attorney, Lennon spent more than one year trying to gather information from INS about the nonpriority status program and related procedures. At the time, INS contended that data on the nonpriority status program was “not compiled.” Even when Lennon motioned his immigration judge to depose a member of the Government who was informed about the nonpriority status program, the immigration judge denied his request.
Ultimately, Lennon was able to obtain information through a Freedom of Information Act (FOIA) action. Specifically, information about the nonpriority program was available under the INS’s “Operations Instructions” which, until the Lennon lawsuit, remained private information on the INS “Blue Sheets.” As a consequence of the FOIA Action, and despite the numerous statutory exceptions to the publication of information, INS migrated information about the nonpriority program from the INS “Blue Sheets” to the published “White Sheets,” signifying the newly public nature and existence of the program.
The Evolution of Deferred Action: 1975-1997
In 1975, following the Lennon case, the INS issued guidance on deferred action under its "Operations Instructions." The governing section stated: "(ii) Deferred action. In every case where the district director determines that adverse action would be unconscionable because of the existence of appealing humanitarian factors, he shall recommend consideration for deferred action category." The Operations Instructions also listed factors that should be considered in determining whether a case should be designated for deferred action:
When determining whether a case should be recommended for deferred action category, consideration should include the following: (1) advanced or tender age; (2) many years' presence in the United States; (3) physical or mental condition requiring care or treatment in the United States; (4) family situation in the United States effect of expulsion; (5) criminal, immoral or subversive activities or affiliations recent conduct. If the district director’s recommendation is approved by the regional commissioner the alien shall be notified that no action will be taken by the Service to disturb his immigration status, or that his departure from the United States has been deferred indefinitely, whichever is appropriate.
If we think about President Obama’s use of DACA, he appears to have considered “tender age,” many years of presence in the U.S., effect of expulsion, and (lack of) criminal or subversive activities. In other words, he followed pre-existing guidelines.

Thursday, March 8, 2018

How President Chester Arthur Viewed the Second Amendment (Very Narrowly)

I am researching every executive order since the first one was issued in 1826 by John Quincy Adams (it’s a project on how presidents regulate labor markets with respect to immigration and race).
The NRA peddles a fiction that the Constitutional fathers would have approved assault weapons. Opponents have duly pointed out that a musket took about 30 seconds to load with shot at that time.
This short order gives a nice sense of what the expectation was for gun ownership before the NRA strangled our legislatures.
This Executive Order was issued by President Arthur on March 30, 1882
To Collectors of Customs:
Under the provisions of section 1955, Revised Statutes, so much of Department instructions of July 3, 1875, approved by the President, as prohibits the importation and use of breech-loading rifles and suitable ammunition therefor into and within the limits of the Territory of Alaska is hereby amended and modified so as to permit emigrants who intend to become actual bona fide settlers upon the mainland to ship to the care of the collector of customs at Sitka, for their own personal protection and for the hunting of game, not exceeding one such rifle and suitable ammunition therefor to each male adult; also to permit actual bona fide residents of the mainland of Alaska (not including Indians or traders), upon application to the collector and with his approval, to order and ship for personal use such arms and ammunition to his care, not exceeding one rifle for each such person, and proper ammunition.

The sale of such arms and ammunition is prohibited except by persons about to leave the Territory, and then only to bona fide residents (excluding Indians and traders) upon application to and with the approval of the collector.
H. F. FRENCH, Acting Secretary.

Wednesday, March 7, 2018

Look-a-Likes, Trump and Polk, Differ on Tariffs

President James Polk had a strong and successful presidency, including a victory in the Mexican-American War and annexation of Texas.
When he was elected in 1844, tariffs were a major issue. The Tariff of 1842 (also called the Black Tariff) set high tariff rates to protect Northern manufacturing. This hurt agricultural states in the South and Midwest.
Compare this to President Trump’s imminent tariffs on imported steel and aluminum, and emerging concern from Midwest and Southern states, where there is growing concern about retaliation against corn, wheat, soybeans, sorghum, and Kentucky bourbon.
Like departing Senior Economic Advisor, Gary Cohn, Polk believed that protective tariffs for American manufacturing were unfair to other economic activities.
Once he was elected, Polk directed his Treasury Secretary to draft a new and lower tariff. Polk then had a friendly congressman propose the lower tariff to strengthen the acceptance of the policy through legislation. In a razor-thin vote in the Senate, Congress approved the lower tariff schedule (leading to the Walker Tariff of 1846).
Lower tariffs led to economic growth. England—so upset with American industrial tariffs that it passed its “Corn Laws”— repealed their retaliatory tariff on American agricultural. A boom in Anglo-American trade resulted.
Our new tariffs appear to be on course to revisit the sad history around the Black Tariff of 1842.
Photo Credit: Chattering Teeth

Tuesday, March 6, 2018

Church Worker Fired for Facebook Posts About Safety. Church Pays $62,000 Settlement

Meet Shepherd’s Chapel Church, based in Gravette, Arkansas. They are spreading the gospel in radio and TV broadcasts on 150 stations.
Darrin Carnahan worked as a printer for this church. Darrin died recently from lung cancer. Prior to his death, he complained numerous times to his employer that the printing operation he ran for the business had poor ventilation.
Eventually, he posted his complaints on Facebook. After three negative posts about the church’s failure to address noxious fumes in his workplace, the church fired him. They didn’t give Darrin a reason; but they told Kimberly that’s what happens for “biting the hand that feeds you.”
Kimberly and Darrin viewed that as retaliation for complaining about unsafe working conditions. Retaliation for making a safety complaint is prohibited by OSHA (Occupational Safety and Health Act). The federal agency, OSHA, sued in behalf of Darrin Carnahan. This lawsuit was filed under the Obama administration; and it was continued under the Trump administration.
Once the Trump administration pressed forward with the lawsuit, the church offered a $62,000 settlement ($32,500 in back wages, plus $30,000 in compensatory damages for emotional distress).  Darrin wasn’t alive to accept it. His wife did.

Sunday, March 4, 2018

Why Are Judges Hard to Hold Accountable?

In Nebraska, a supreme court justice hurriedly resigned in the past two weeks. The state judicial ethics board isn’t commenting on allegations that he was accused of misconduct “in line with the national #MeToo movement” (quoting Omaha World-Leader). Why is this supreme court justice given cover by the judicial ethics board? The board suggests that it’s to protect the judiciary against false accusations, and he has not had a hearing—but then why did he quit suddenly, and why is a state senator seeking to have him disbarred? Doesn’t the public have an interest in knowing more?
In Arkansas, former judge Joseph Boeckmann was recently sentenced to five years in prison. He had cut sentencing deals with scores of young men who were charged with criminal offenses. He gave them community service in return for sexual favors provided in the privacy of his chambers. His misconduct gives new meaning to the MeToo Movement. Why did he get away with this for so many years? Where was the state's judicial ethics board during this time?
In Cook County (Illinois), a circuit judge, Jessica Arong O’Brien, was convicted last month of a $1.4 million federal mortgage fraud scheme. She pocketed $325,000 illegally. She will be sentenced on July 6th.  O'Brien remains in her position, collecting on her annual salary of $198,075 (as of February 28th), though she faces a disbarment hearing in early April. As of today, no complaint has been filed to the Illinois Judicial Inquiry Board. Maybe they don't read the Chicago newspapers, or maybe they are waiting for someone to act on this. Don't they have  authority to start an inquiry upon the felony conviction of a sitting Illinois judge? If not, why not? And why is a convicted judge still drawing a high salary on the taxpayers' dime?
In Champaign County (Illinois), there is nothing new to report on an ethics complaint against Judge Robert Steigmann. In early August, the state judicial board charged him with a variety of ethical violations stemming from his use of office staff and stationery to solicit speaking gigs of $1,250 before health care and police organizations. He doesn't deny the factual allegations, just the interpretation of the rules. Illinois' judicial code bars the use of a judge’s office for private gain. It's now seven months and counting, with no ruling from the ethics board.

Friday, March 2, 2018

Runaway Teachers Strike a Glimpse of the Future (and Past)

Many conservative Americans don’t like collective bargaining. This term refers to a legal process in which a union is designated the sole bargaining agent for employees. The union negotiates a labor agreement with an employer. The union can strike; the employer can lock out workers; but usually they make mutual concessions and have an agreement. Once that contract is in place, there can be no strikes or lockouts. A court can issue an injunction—and jail people for noncompliance—if “labor peace” is broken.
West Virginia is the kind of state that many conservatives favor—a red state that outlaws public sector collective bargaining. Teachers can join a union—but their union cannot bargain. It can only press lawmakers for better pay and conditions.
This system has produced no pay raises for teachers since 2014. During this time, teachers have found a bigger part of their paycheck going to health insurance. Take home pay has reached crisis proportions for many teachers.
Now for the “glimpse of the future (and past)”: After a week of striking, the state has agreed to raise pay 5%-- but has not made concessions on health insurance. The teachers union is urging teachers to return to work. The union must think this is the best deal that can be had. But teachers are having none of it. They are rejecting calls from the governor and from their union to stop the strike.
Collective bargaining was enacted in 1935 after the nation experienced 2,000-2,500 strikes every year in the early 1930s. There was no mechanism, short of jailing striking workers or hiring replacements to cross furious picket lines, to create labor peace.
West Virginia teachers aren’t Socialists; nor are they the type of people who like to cause disruption. They are ordinary people who have been pushed to their breaking point. Now that their anger has boiled over, there is no legal process (i.e., collective bargaining) to bring them back to work.

Court Holds Up End to DACA: Here’s Why

President Trump announced last September 5th his intention to terminate President Obama’s DACA program. And earlier this week, the president also announced a sweeping tariff policy while answering a reporter. As of this hour (Friday, 1:00 p.m.), the U.S. has not officially stated a tariff policy for steel and aluminum. Markets and foreign governments are reacting, nonetheless.
The Federal Register is a daily publication of the U.S. federal government that issues proposed and final administrative regulations. Anyone can visit the Federal Register (it’s here
The Register announces rules—“proposed,” “interim,” and “final.” The public is solicited for comments.
For example, today’s Federal Register announces that the Department of Education will begin to accept applications for new charter schools. 
Against this backdrop, a study by USA Today finds that there is a discrepancy between White House policy annoucements that occasionally post inaccurate versions of President Trump's executive orders on its website, and official versions published in the Federal Register.
What’s wrong with this?
First, it indicates an unprecedented degree of sloppiness and unprofessionalism in the White House.
Second, it raises questions as to what policies are being set by the executive branch. Are they tweets? Interviews? Or are they actual notices in the Federal Register?
Third, it is “haste makes waste.”
Finally, there are legally binding rules about how the executive branch announces and implements policy (under the Administrative Procedure Act). If a rule is proposed or implemented without following the proper procedures, courts can void or hold up the rule.
That is a key reason, among several, that a federal court has put President Trump’s March 5th deadline for ending DACA on hold. If you want specifics, see (Feb. 13th ruling).

Tuesday, February 27, 2018

You Think Professors Are Liberal?

Not so for the NYU Law Conference on Liberty and Fairness.
Today’s conference was organized by law professors and students who embrace libertarian ideas. They strongly oppose government regulation of markets, including labor markets. They don’t like unions at all. 
To them, unions are government-sanctioned monopolies that deprive individuals of freedom, bargain a “level” rate for all (unfair to individuals), and strangle government, especially state governments. Unions, in their view, are the single biggest reason states such as Illinois are essentially bankrupt.
All good points.
I was invited as a counter-voice. My libertarian colleagues believe union dues are compelled speech in violation of the First Amendment.
So I brought up the West Virginia teachers’ strike. These public employees do not have collective bargaining.
Is there a public good in paying teachers so poorly that they are on food stamps? 
Someone said the solution to that is to take away food stamps. 
Will that improve public education, I asked? 
Create more charter schools.
Alright, then: If public employees have a First Amendment right not to pay mandatory dues on grounds of free speech, what happens if we return to the days when unions were treated as criminal conspiracies. (They were.)
Does the First Amendment grant teachers and other public employees a right of free association to join an “illegal” organization called a labor union?
No one answered that question. No one. 

Saturday, February 24, 2018

Can Arizona Avoid Paying Basketball Coach If He Bribed Star Recruit?

Arizona Head Basketball Coach Sean Miller was allegedly caught on multiple FBI wiretaps talking about offering a recruit $100,000 to commit to Arizona, according to ESPN.
Miller has about $10 million left on his employment contract.
But there is something odd and disturbing about this agreement. Arizona bargained for the right to fire Miller for cause. While cause is not defined, there is no doubt that violating the law and NCAA rules would be sufficient cause to terminate the contract.
And it is—BUT, a report in Forbes (
shows that his contract also provides for “liquidated damages” for Arizona’s right to exercise this clause. In this case, Arizona could be on the hook for 85% of the unpaid contract—close to $8 million.
Yes, that is crazy. It shows just how desperate some schools are to hire star coaches.
Currently, I am teaching an employment law course that deals with terminating employment relationships, including discharge for cause.
We will discuss this case soon. For now, I offer two thoughts on how Arizona might deal with this situation. Both involve withholding payment.
1. Arizona is in a tough spot because courts uphold contracts, even bad bargains. There are rare instances where a party can ask a court to go beyond the four corners of a contract. This involves the doctrine of “good faith and fair dealing.” This means that every contract creates a presumption that the parties to a contract will deal with each other honestly, fairly, and in good faith, so as to not destroy the right of the other party or parties to receive the benefits of the contract. It is implied in every contract in order to reinforce the express covenants or promises of the contract. Often, it comes into play when technical or strict compliance with a contract would create a manifest injustice; or alternately, where one party (here, Miller) violates the contract in bad faith. Make no mistake: This is a longshot strategy. Again, if courts intervened every time a deal turned sour, the value of contracts would be greatly diminished.
2. Arizona can seek to avoid payment on grounds that the contract, as applied to Miller, is illegal (the doctrine of illegality). This, too, would be a really tough sell to a court. The employment contract has no illegal terms. An example might be a New York billionaire who sells condos at far above market value to Russian oligarchs in order to launder money and avoid U.S. tax laws. If a Russian breached the contract, the New York real estate mogul would have no recourse to collect on the contract. For Arizona, they would need to argue that payment of $8 million to Miller would reward illegality—IF, that is, he were indicted or convicted (and he is neither). But again, the contract itself is not an illegal bargain—so I have strong doubts.
If Arizona fires Sean Miller, and if they bargained this insanely stupid “for cause” termination clause, they will likely need to pay up.

Friday, February 23, 2018

Thinking of Unfriending Someone? Read Late Wisdom

An old poetry book tumbled from my office shelf. The book opened itself to Late Wisdom, by George Crabbe (early 1800s). It seems to speak to our divided society, choosing and losing friends, and persuading our friends to temper their viewpoints. I don’t know if the short poem tells us what to do about annoying Facebook friends, or whether virtue can never overcome tyranny—but it may stir you to think. As for me, I hope for more virtue, less tyranny ... and friends.

Late Wisdom
WE’VE trod the maze of error round,    
  Long wandering in the winding glade;
And now the torch of truth is found,     
  It only shows us where we strayed:     
By long experience taught, we know—          5
  Can rightly judge of friends and foes; 
Can all the worth of these allow,            
  And all the faults discern in those.       

Now, 'tis our boast that we can quell    
  The wildest passions in their rage,          10
Can their destructive force repel,           
  And their impetuous wrath assuage.—              
Ah, Virtue! dost thou arm when now    
  This bold rebellious race are fled?       
When all these tyrants rest, and thou      15
  Art warring with the mighty dead?
Credit: Oxford Book of English Verse, p. 572 (1900)

Thursday, February 22, 2018

Most Teachers in West Virginia Set to Strike (Illegally)

Teachers in West Virginia have voted by overwhelming margins to go on strike Thursday—and to stay out.
They have not had a pay raise since 2014. Since that time, their health insurance premiums have soared as the state has refused to pay for these increases.
West Virginia has no collective bargaining law for teachers. They are voluntary members of two teachers unions. Those organizations lobby for pay raises.
All of this means that teachers could be ordered by a judge to return to work—and if they violate the order, face jail time.
This scenario unfolded in Chicago during an illegal fire fighters strike in 1980 (photo below). Anywhere from 50% to 87% of fire fighters walked off the job.
In West Virginia, unions essentially lobby lawmakers to pass legislation improving pay and benefits, rather than bargain directly on behalf of members. The lack of a labor law means there is no mechanism for bargaining, and strike-avoidance measures such as mediation or arbitration. Labor disputes come down to street-level protests and action/inaction by the statehouse.
Teachers might lose the strike. Districts already allow non-certified instructors to teach in public classrooms.

Wednesday, February 21, 2018

A Mickey Mouse Contract Proposal


Aren’t the $1,000 pay raises wonderful! … Well, not when you look carefully at what’s going on. When have employers ever made bonus payments in exact increments to everyone in their company, from the least skilled to the most skilled, or the lowest performers to the best performers? And how is that Wal-Mart’s one million employees (low skilled) get the exact pay raise of 145,000 Bank of America employees—people who have more skill and education?
The answer seems to be politics—for sure, it’s not about labor markets or company compensation plans because at no point do firms get together and discuss how they will pay their workforces.
That takes us to Disney. They’ve paid the $1,000 bonus to nonunion employees.
But they are not paying this to union-represented workers on Disney properties. Those 38,000 employees were in wage negotiations before the tax bill was passed and companies began to hand out these politically-motivated bonuses. What the company apparently wants is some give-backs for the bonus—and likely, to send a signal to the 38,000 employees that the union is their real problem. Good luck with that Mickey Mouse idea—even Goofy would see through that sham approach to pay raises.  

Tuesday, February 20, 2018

Trump Rule Speeds-Up Hog Killing: Danger to Workers and Consumers

On a visit to a beef slaughterhouse in December, I was told by workers they feared that the Trump administration would speed up allowable “chain speeds” for slaughterhouses.
Under USDA and Department of Labor rules, the chain speed for moving dead steers is 400 per hour; hogs are 600 per hour.
Now, the Trump administration is raising chain speeds in hog plants.
Speed limits are in effect to protect workers from injuries. Workers are especially prone to slicing injuries because they work in a cold room, and cut carcasses that have globs of fat that are slippery in that setting.
The new chain speed for hogs will rise to 1,106 per hour—a feverish pace.
This will impact consumers, too. There are meat inspectors at every plant. They cannot keep up with that blistering speed.
The workers I met—about half from Mexico, the other half from Nebraska and Iowa—were already looking into other jobs in December. They told me they won’t make as much money. But the unemployment rate in Sioux City, Iowa is 1.8%. They said they’d settle for a buck or two less per hour—from $15/hour—to save their fingers and protect their backs from rotating heavy carcasses at blinding speeds. Also, they predicted that meatpackers would have trouble maintaining a full workforce under oppressive chain-speed conditions.

Sunday, February 18, 2018

Is President Trump’s “Hire American” Executive Order Racist (and Therefore Unconstitutional)?

What if President Trump literally said that his executive orders would allow more whites to enter the U.S. but not people of other races? Of course, that was the gist of his “shithole country” comment when he fulminated over a bipartisan agreement for immigration reform.  Haiti, the nation to which he referred, is 95% black.  Norway’s population, the better immigration alternative in his view, is 92% white.  A president’s constitutional powers over immigration are plenary; but does this legal doctrine mean that President Trump can favor whites over other races?

I pose this as my research question. More specifically, I ask whether the “Hire American” preference in Executive Order 13,788 is constitutional. 

I conclude that this order is a thin veil of race discrimination aimed at Asian Indians. For this reason, I believe it would not survive a court’s heightened scrutiny under the Fifth Amendment’s Due Process Clause.

Why do I think the order is a racial classification?

In a paper I’ll present next week at a conference at NYU Law School, I end by stating:

This order has broad ramifications for the American economy. 

Each year, Congress allows for 60,000 H-1B visas and 20,000 related "STEM" field visas.

The "Hire American" order seeks to choke that number down to only the best and most highly paid foreign workers. That's close to zero.

America’s IT workforce has 4.6 million jobs— ten times the size of the mining sector that President Trump seeks to protect,  and larger than the population of 25 states. 

Most of this large workforce employs U.S.-born workers. There are only 525,000 H-1B visa-holders, compared to 4.6 million IT workers.

Among U.S.-born workers, 85% are white but only 3% are Asian.

In the much smaller group of foreign-born IT workers, Asians make up 66% of that group, with Indians dominating all other Asian countries of origin, while whites comprise just 25%.

In short, the visa-jobs in this labor market are mostly held by Indians, but the regular jobs are mostly held by white Americans.

Executive Order 13,877 turns this fact-based reality on its head, and traffics in another Trumpian conspiracy theory— Indians are stealing lots of jobs from white Americans.
To deny that this orders is racial discrimination ignores the White House press conference announcing the order; disregards the Indians-hurt-Americans 60 Minutes program that inspired it; overlooks labor market data in recent Census Bureau and USCIS reports; denies first-hand accounts of America’s racially-stratified IT workplace, where Indians sit at the bottom of a corporate caste system; and whitewashes President Trump’s overt equivalence of skin color and country of origin to justify his racist immigration regulations. Like his travel bans, transgender ban, and DACA termination, his “Hire American” order is likely to be enjoined by a federal court. 

Whites Versus Indians:
Is the “Hire American” Preference in Executive Order 13,788 Constitutional?
 Michael H. LeRoy
School of Labor and Employment Relations, and College of Law
University of Illinois at Urbana-Champaign
New York University School of Law
NYU Journal of Law & Liberty Symposium
Freedom versus Fairness:
The Tension Between Free Market and Populist Ideals in Labor
February 27, 2018 

Saturday, February 17, 2018


With President Trump ending DACA, some portion of 2 million Dreamers could be stateless—that is, if places such as Mexico bar entry to them.
My mentor, Prof. Gene Gressman, was Special Counsel to the U.S. House of Representatives in a key 1983 Supreme Court case, I.N.S. v. Chadha.
A bit like today’s dreamers, Jagdish Rai Chadha was born in The British Empire's colony in Kenya to Indian parents. Chadha came to the U.S. as a university student in the late 1960s.
At the time of his birth, he was a UK citizen. He entered the U.S. on a British passport.
After Kenya's declaration of independence from Britain in 1963 he was not recognized as a legitimate citizen or resident of Kenya.
India did not recognize him as a citizen because he was born in Kenya.
Britain stripped all people born in Kenya of citizenship.
That left Chadha with no country—save, perhaps the U.S.
After his student visa expired, the U.S. moved to deport him. He appealed his order. The INS, under the president’s direction, relented. The House of Representatives was upset by this: Where, in the law, was he permitted to stay in the U.S.? It was a decision for Congress to make, not the president.
Why did Prof. Gressman argue that the stateless man should be removed? Isn’t that heartless?
Prof. Gressman had a profound mistrust of the presidency as that branch of government administers immigration law. He was a clerk on the Supreme Court when President Roosevelt issued an Executive Order to put 117,000 Japanese resident aliens and Japanese Americans in internment camps.
He wanted to make sure that Congress never loses its constitutional role in shaping and implementing immigration law.
Prof. Gressman—and the House of Representatives—lost that big case. Mr. Chadha stayed in the U.S. Prof. Gressman was thrilled for him. 
But the loss amounted a big win for presidential power to run our immigration laws without checks and balances.
Prof. Gressman rued the day that a future president would take immigration law into his own hand, without authority from Congress. Having watched Roosevelt enact a deeply racist immigration policy by fiat, he thought that day would come again. Checks and balances were essential to halt the march of racism and nativism—then and now.

Friday, February 16, 2018

Bankruptcy: The New Gun Control

Remington, an iconic gun maker, filed for bankruptcy on Monday. The Second Amendment cannot save the firm (it is reorganizing, not liquidating, due to $1 billion in debt it cannot pay).
The company has more than one business problem. They sold guns with defective triggers, and  settled a massive class action lawsuit filed by gun purchasers.
But Remington also makes the Bushmaster AR-15, the weapon of choice by mass killers. That gun was used in Florida this week.
Parents of slain children from Sandy Hook Elementary have a case pending against Remington before the Connecticut state supreme court. 
They are using tort law (think of negligence law) to go after the gun maker. 
Using a century-old common law rule— negligent entrustment— they are arguing that Remington should have foreseen that a psychopath would eventually buy their weapon of mass killing and turn it on—in this case—school children and teachers. The precedent they cite: A highly regarded opinion from Michigan in the 1800s holding a sling-shot maker liable for negligent entrustment of its eye-damaging weapon.
It’s not an easy proof at all—but the argument goes that unstable people, bent on revenge, will find a way to buy that gun. This is foreseeable.
Since the Connecticut case was argued just four months ago, we have had the Parkland, Florida massacre and the Sutherland Springs massacre. 
In the Texas shooting, lawyers have filed a lawsuit seeking $25 million in damages from the sporting goods store that sold a weapon to Devin Kelly.
The NRA has enacted a federal law—Congress enacted the law at the behest of the NRA— that limits liability for gun makers. But tort lawyers are finding creative ways around the law—ways that the NRA cannot stop. These lawyers are getting before juries and arguing that gun makers profit from killing and maiming police, children, teachers, and parents.
This approach will not end gun violence; but for now, a major gun maker is in deep financial trouble. Distributors are being targeted now by lawyers. It’s the closest thing America has to gun control. 

Thursday, February 15, 2018

Trump’s Deposit Earns Interest: See Men Bargain

Stormy Daniels reportedly has a "Monica Lewinski dress" from her hook-up with Donald Trump in 2006. This was apparently the reason that Michael Cohen bargained to hush-up Ms. Daniels. Will Trump now enter into direct negotiations to keep Daniels quiet?
To see men bargain over keeping a stained dress out of sight, it’s time to pull out a copy of The Donald’s The Art of the Deal. Here are 5 key negotiating points. You can think about how Stormy might play these angles with Donald’s stain.
1. Think big
"I like thinking big. I always have. To me it's very simple: if you're going to be thinking anyway, you might as well think big."
2. Protect the downside and the upside will take care of itself
"I always go into the deal anticipating the worst. If you plan for the worst--if you can live with the worst--the good will always take care of itself."
3. Maximize the options
"I never get too attached to one deal or one approach...I keep a lot of balls in the air, because most deals fall out, no matter how promising they seem at first."
4. Know your market
"I like to think that I have that instinct. That's why I don't hire a lot of number-crunchers, and I don't trust fancy marketing surveys. I do my own surveys and draw my own conclusions."
5. Use your leverage

"The worst thing you can possibly do in a deal is seem desperate to make it. That makes the other guy smell blood, and then you're dead."

Trump’s Bloody Face: He Took His Sixth Beat Down by a Federal Court Today

In immigration law, courts almost always abstain from overruling a president’s immigration orders. The reason is that the executive branch—modeled after monarchs—is the embodiment of sovereignty. One person ultimately decides who enters, and who is removed: the president.
But starting in the 1970s, tiny fissures opened in this massive legal wall. Since then, it’s been very hard for lawyers to get a court even to review an alien’s deportation order. As courts put it, there is but a “crevice” of federal jurisdiction.
President Trump’s naked bigotry has led to six courts widening this “crevice” of review.
Today, in Eblal Zakzok v. Trump, the Fourth Circuit, in a 9-4 en banc ruling, upheld a lower court’s injunction of President Trump’s third travel ban.  Judge Gregory wrote: “Examining official statements from President Trump and other executive branch officials, along with the proclamation itself, we conclude that the proclamation is unconstitutionally tainted with animus toward Islam.”
This is not the Ninth Circuit, fabled for its liberal outlook. No. This court is located in the heart of the old-Confederacy, where liberalism has not taken root—in Richmond, Virginia.
Today, Trump is crowing that the end is nigh for the DACA program. He is dead-wrong. That program is being held open by a nationwide injunction. An interesting word on that case: The court’s order technically applies to Secretary of Department Homeland Security, Kirstjen M. Nielsen. The point is that the court has thought ahead to likely noncompliance with its order. It cannot enforce an injunction against a sitting president—but if Nielsen and her ICE police force violate the injunction, they’ll be subject to contempt and jail—just like Sheriff Joe Arpaio. Being about 40 years younger than Arpaio, she might not want to be a sacrificial lamb quite like Arpaio, who, by the way, has a felony conviction record notwithstanding his pardon.

Wednesday, February 14, 2018

A Luv Story

Until the early 1980s, airlines would only hire women—young, trim, attractive women—to be “stewardesses.” Southwest Airlines—the LUV airline—went a step further.
After some market research, the newly launched airline—at that time flying only in Texas between Dallas (Love Field), San Antonio, and Houston— found that their main customers were businessmen.  To make flying more fun for the guys, they sexualized their human resources—ahem, stewardesses. 
The young women dressed in hot pants and served “LUV bites” during the flights. Borrowing from Woody Allen’s 1973 movie, Sleeper—a weird take on the year 2073— the company installed the nation’s first ticket kiosks based on Allen’s orgasmatron (this was a self-service sexual pleasure machine in which individuals entered, experienced solitary pleasure, and emerged in a state of total bliss).
Customers loved the approach. Flight attendants didn’t complain. New routes were added quickly. The jets were painted with hearts. The airline launched a “Love Is in the Air” campaign. With each new heart beat, the LUV airline grew as a low-cost carrier that offered teasingly sexualized service plus a real feeling of warmth and happiness.
Then Gregory Wilson and a group of men sued the airline, claiming that its employment practices discriminated on the basis of sex. The airline countered with a strong Title VII defense—gender is a “bona fide occupational qualification.” That’s right—the only person who can be a stewardess is a woman, under 30, slender, … well, you get it.
The court rejected the defense; Southwest lost the case; and its hot pants uniform came crashing down.
But Southwest didn’t overact. They redefined love when they hired men, and renamed the position flight attendant. They took a more mature approach to romance—one that emphasized light-heartedness, warmth, humor, and good-natured kidding with passengers.
It’s one of the only lawsuits I’ve seen an employer lose where the firm used the loss to redefine a good idea and make it much better.
The love in my life pointed out another LUV story today. Click on the link for a current story of how Southwest keeps on LUVin.’

(I took this photo in January at the recently renovated Love Field Airport in Dallas. Click to enlarge.)

Tuesday, February 13, 2018

Justice for a Murdered Transgender Native American?

While Americans were celebrating the Fourth of July in 2009, someone in Albuquerque accosted a transgender Native American. Cato “Terri” Benally was beaten to death. She was found in a park with severe head injuries. Police have believed, based on specific evidence, that Benally was the victim of a hate crime.
A year ago, police arrested this man (photo credit, APD). On Monday, a grand jury indicted Roger Paul Preston on charges of first-degree murder with a hate crimes enhancement. Preston faces a trial.

Monday, February 12, 2018

Did Catholic School Discriminate Against Concussed Teacher?

That is the question facing a federal appeals court in California.
Michelle Baker was hired on a one year contract to teach in a Catholic school.
As the school year began, Baker fell in the stairwell at school, and struck her head on the concrete. She was unable to get up for ten minutes. She was diagnosed with a concussion. She received an anti-nausea medication and stayed out of work for ten days. 
She provided her principal with updated medical information in conjunction with asking for leave time.
Two weeks later, Baker was cleared to return to work. During this time—and after she was let go from her job—she suffered from double vision, blurred vision, memory issues, hearing issues, dizziness, and nightmares.
Baker claims she was competent, nonetheless, to perform her job duties. 
At no time did a medical provider inform her that she could not perform her duties as a teacher.
The crux of the issue is the reason the school did not renew her contract. 
At that time, her principal said that Baker did not not begin class with a prayer as required, incorrectly solved a math problem on the board and failed to correct the answer when a student pointed out the problem, and did not manage her class well.
She alleged that the reason she was let go was her disability.
Baker says that the reasons given were “pretext”—a sham for the actual reason that the school did not want to try to accommodate her occasional absences to get follow-up medical help, nor her small mental slip-ups.
The trial court dismissed her complaint. The judge reasoned that she was permitted to finish the year, and the notice of non-renewal came much later that term. Thus, there was no proof of disability discrimination.
The appeals court will take up the legal issue of whether the trial court failed to apply an expanded definition of disability under 2008 amendments to the ADA.

Sunday, February 11, 2018

What Worries China but Not the U.S.?

It’s not North Korea. Both nations fret over this. It’s worker unrest.
I had a lengthy talk on Friday with a Ph.D./Law student from China. Her country is very worried about worker unrest. They are experimenting with official types of employment mediation. That’s why she is here to study.
China has a state-approved labor union. It’s for show. It’s also powerless.
When China was under the fist of Chairman Mao, inequality of wealth wasn’t a problem. Almost everyone was poor and hungry or starving. Now China is wealthy, but its wealth is very concentrated in large cities and among elites.
China isn’t waiting for regular workers who are scraping by to explode in angry street demonstrations. Nor is China eager to copy the American system of free labor unions—free, meaning that labor unions are independent of government control. They are trying to use this state union to funnel complaints into a mediation system where one-off solutions can be discussed and acted on.
As if she was being monitored, my student leaned in closely. Almost in a whisper, she said: “I do not think this approach can work because it has so much censorship.”
I leaned in and quietly said: “I worry about the decline of labor union rights in America. Today, unions don’t speak for angry workers. A power-hungry billionaire speaks for them. Someday he’ll be gone. Who will speak for them? Not unions, because they’ll be legally watered down, not far off from the one-union system in China.”