- Hiba Hafiz, Labor’s Antitrust Paradox, 87 U. Chi. L. Rev. 381 (2019).
- Sanjukta Paul, Antitrust as Allocator of Coordination Rights, 67 UCLA L. Rev. ___ (forthcoming 2020), available at SSRN.
The political economy of work in the United States is on the skids. In April 2020, unemployment skyrocketed,reaching a level not seen since the worst days of the Depression in the 1930s. Many who are still going to work — so-called “essential workers” — are in low-wage jobs without basic legal protections (think of independent contractor delivery and truck drivers, home care workers), as a matter of policy choice, not as a matter of some irresistible law of economics . Many farmworkers and other food sector workers are undocumented – meaning that government deems their work both essential and illegal. People of color and immigrants are hardest hit by coronavirus deaths and unemployment.
Now is the time to rethink how antitrust weakens collective action by workers while allowing massive concentration and enhancing the power of capital. Hiba Hafiz and Sanjukta Paul are doing exactly that. Both Hafiz and Paul challenge the dominance of a particular school of economic thought in antitrust analysis. They reflect an exciting push back against what Sandeep Vaheesan has called the economism of antitrust law. Their work helps scholars of labor and judges to discuss when, whether, or why collective action by labor is legal rather than an anti-competitive restraint on trade, and to understand why law has failed to curb the economic concentration that has suppressed wages.
The public is getting a crash course in what low wage workers have known for years – the law isn’t protecting workers. Huge companies have the ability to flout the law simply because they are huge. In California, app-based delivery and ride companies announced their refusal to comply with the California Supreme Court’s Dynamex decision and AB-5, a state statute requiring them to classify their workers as employees. Finally, California’s attorney general and a group of city attorneys filed suit to force Uber and Lyft to comply with the law. In May, Tesla announced it was re-opening its factory in defiance of a public health order, threatened to fire any worker who obeyed the public health order and failed to return to work, and the public health officials ultimately backed down and allowed the company to re-open even while the shelter-in-place order continued. App-based workers like Instacart shoppers have struck to protest the lack of safety protections and their low-wages. An Amazon warehouse worker got fired for protesting a lack of safety protections, and worker advocates filed a lawsuit over whether time spent handwashing would be held against workers at the same warehouse. But still the problems continue.
Workers need, and lack, the power to negotiate effectively for protections. Concentration of business has caused wage stagnation and has made it harder for workers to wrest wage increases and improved working conditions from business. The power of concentrated capital as compared to the power of workers demands action. Yet efforts of states to enable collective negotiation to balance the power of concentrated capital with a collective voice of workers have been stymied by antitrust litigation. As Hiba Hafiz explains the state of antitrust law today, “workers seeking to use antitrust law to challenge employer buyer power in the new era of labor antitrust will face difficulties. At the same time, they will expose themselves to potential antitrust liability if they seek to coordinate to counter that power.” (Pp. 402-03.)
In some ways, we are back to where the country was between 1929 and 1931 – massive unemployment, unprecedented economic inequality, and yet many workers are unable to unionize because of the threat of antitrust litigation. As Lenin said in criticizing economists for condemning unionization and worker political agitation, what is to be done?
Paul argues that business, aided by a particular school of economic thought, deployed antitrust law to attack disfavored forms of economic coordination, including collective action by workers both through labor unions and through other forms. “Meanwhile,” Paul says, “a very specific exception to the competitive order has been written into the law for one type of coordination, and one type only: that embodied by the traditionally organized, top-down business firm.” (P. 42.) The result is that collective action by for-hire car drivers has been attacked as an antitrust violation even as Uber’s own price-fixing survives challenge. Paul goes to the source of the problem and challenges the regnant regime of economic analysis and the notion that intra-firm arrangements (what Paul calls coordination) are immune from scrutiny.
Hafiz explains and critiques the antitrust law relevant to labor, showing why it fails to protect workers from the monopsony and collusive power of employers while preventing workers collective action as countervailing power. She proposes “regulatory sharing” as a way that antitrust enforcement and labor rights enforcement can protect consumers and workers, rather than seeing worker protection necessarily coming at the expense of consumer welfare.
Together, Hafiz and Paul help us go back to first principles in antitrust and labor to think about how to reconcile robust worker protection with robust protection for consumers.
Being neither a scholar of antitrust nor an economist myself, I want to suggest why it benefits scholars of labor and employment to consider their work. Chief among them is the growth of organizing among workers who do not presently enjoy the status of employee under the National Labor Relations Act and, therefore, the labor exemption from antitrust liability for collective action. Lawyers have faced antitrust enforcement for going on strike to protest the abysmally low rates paid to handle criminal defense of indigent people. Even playwrights face antitrust litigation when they try to improve labor standards by acting collectively. As more and more companies have realized they can lower labor costs and increase share price by classifying their workforce as independent contractors, the scope of the labor exemption to antitrust shrinks. The relevance of antitrust to labor grows correspondingly.
Hafiz and, especially, Paul (in this and other works) shed light on the intellectual history of the particular form of economic analysis that came to dominate antitrust theories. Looking back at the history of antitrust’s evolution, particularly in its engagement with labor, illuminates the significance of rethinking antitrust now. Use of antitrust to formulate labor policy rarely turned out well for either antitrust law and policy or labor. This is a familiar story in the period between 1890 and 1932, when – as Herbert Hovenkamp notes – the majority of antitrust actions were filed against unions rather than against business combinations. Herbert Hovenkamp, Principles of Antitrust, Chapter 16.b.3 (West 2017).
But even at the height of the New Deal, and even with the progressive Thurman Arnold in charge, antitrust proved to be a threat to worker collective action. In 1937 – the very year the Supreme Court upheld the constitutionality of the National Labor Relations Act and it seemed that worker collective action would finally, for the first time in American history, be safe from criminal and civil litigation aimed at suppressing it — Thurman Arnold’s division of the Department of Justice filed half a dozen enforcement actions against labor unions nationwide, including unions in the construction trades, the American Federation of Musicians, and others. Targeted by either DOJ or companies in those years were activities that some considered illegitimate, such as sit-down strikes, secondary boycotts and jurisdictional strikes, picketing for recognition, or collective action by independent contractor fishermen and drivers.
As Harvard labor law professor (and later Attorney General) Archibald Cox tartly observed of this campaign, although Arnold “gave assurance that there would be no interference with legitimate organizational techniques or collective bargaining,” the Antitrust Division was quite vague about “how it proposed to distinguish the legitimate from the restrictive,” and the antitrust lawyers’ own “views on labor policy were highly influential.” (P. 261.)
Cox rightly spotted the hazards of Arnold’s campaign against unions. Opening the door to lawyers in the Antitrust Division, and federal judges, to decide which expressions of worker solidarity were desirable would revive the very problems that the National Labor Relations Act and the Norris-LaGuardia Act had been enacted to eliminate. Although the Antitrust Division lost its suits, and the Supreme Court ruled that antitrust would have no role to play in regulating union activity, some of the conduct that the Antitrust Division branded as illegitimate – notably, picketing for recognition, secondary activity, and jurisdictional strikes — were later banned by the Taft-Hartley Act and thus brought back into federal courts’ purview. And the sit-down strike tactic that was targeted in Apex was declared unprotected by federal law and prohibited by state criminal law. Federal judges and federal juries still grant injunctions and damages judgments, sometimes crushing ones, against expressions of worker activism that they deem illegitimate. Some secondary activity is speech protected by the First Amendment under NAACP v. Claiborne Hardware Co. But some – like the lawyers’ protest about the low rates paid for indigent criminal defense — might not be.
Hafiz and Paul explain the dominance of a certain kind economic analysis in antitrust law, and show how it has been used to reduce worker power while allowing massive economic concentration and inequalities of wealth. It is also worth noting the historical controversy over which styles of economics have been considered acceptable in analyzing labor collective action. As Hafiz explains in other work, in 1940 and 1947, Congress amended the NLRA to specifically prohibit the NLRB from hiring “individuals for the purpose of conciliation or mediation, or for economic analysis.” Congress’ target – the Division of Economic Research – was thought (wrongly, as it happens) to be a hotbed of communism. The economists at the NLRB in those days were, in Congress’ view, the wrong kind of economists — the kind who used the empirical and mathematical skills of the discipline to document, understand, and combat labor exploitation.
If a new political economy of labor is to emerge from the present crisis, it will be important to avoid repeating the mistakes of the mid-twentieth century, when the upsurge of labor organizing failed to produce a durable legal regime to protect workers against the power of capital. As we think about that, reading Hiba Hafiz and Sanjukta Paul’s work (along with that of many other progressive antitrust scholars) will help those thinking about a new start for labor.
Cite as: Catherine Fisk, Taking Business Law Back from the Economists: Building Worker Power Through Antitrust Reform
, JOTWELL (August 26, 2020) (reviewing Hiba Hafiz, Labor’s Antitrust Paradox
, 87 U. Chi. L. Rev.
381 (2019) and Sanjukta Paul, Antitrust as Allocator of Coordination Rights
, 67 UCLA L. Rev
. ___ (forthcoming 2020), available at SSRN
I haven’t taught the basic Employment Law survey course in a few years, so I was updating my class notes relating to the kinds of pre-employment screening measures that many employers use. The casebook had a note about so-called ban-the-box measures—state laws that require employers to remove questions about criminal histories from a job application. I decided to do a little research into the subject when – lo and behold – I stumbled across one of those articles that helps an instructor add some value to the class while simultaneously making a practical contribution to the scholarship in the field.
Do Ban-the-Box-Laws Really Work? by Dallen Flake takes a look at the practical effect of ban-the-box laws. The article begins with an overview of the rise in these types of measures in recent years and the different approaches that the measures take. The ban-the-box laws reflect a recognition of the difficulties that those with arrest and conviction records often face in seeking to find employment. Much like the Americans with Disabilities Act’s prohibition on disability-related inquiries at the pre-offer stage, ban-the-box measures delay the ability of employers to inquire about an applicant’s criminal history. As Flake explains, “The hope is that an employer will be more likely to hire an ex-offender if it evaluates a candidate’s qualifications for the position before discovering the applicant’s criminal record.” (P. 1084.)
But as more states (now up to approximately 33) have adopted these types of measures, there have remained questions as to how effective they actually are in practice. Others have raised concerns that the measures may actually adversely impact minority applicants by prompting employers to eliminate these candidates from consideration on the assumption that all minority applicants have a criminal record in light of their higher arrest and incarceration rates. While there have been other studies of ban-the-box measures by economists, Flake’s is (I believe) the first empirical study of the issue from the perspective of legal academic. The article is also one of the first to conduct an experiment, rather than relying on employment data, to measure the effectiveness of ban-the-box measures.
Without giving too much of the game away, in an effort to test some of the competing arguments concerning these measures, Flake submitted fictitious job applications in a ban-the-box locality (Chicago) and a non-ban-the-box locality (Dallas) and then compared callback rates between the two groups. The fictitious Chicago candidates had a 27% higher callback rate than the Dallas candidates. Moreover, the callback rates were higher regardless of the perceived race of the fictious applicant, thus undercutting the argument that ban-the-box measures might adversely minority applicants. Indeed, the fictitious black applicants had the highest increase in callbacks. However, “the black applicants had much lower callback rates than the white and Latino applicants in both Chicago and Dallas, indicating race remains a formidable barrier to employment, regardless of whether an employer is aware of a candidate’s criminal record.” (P. 1080.)
All of the usual disclaimers that go along with empirical studies apply here – the sample size was relatively small (2,006 applications in two cities), the study only measures callbacks, not whether an applicant received a job, etc. But like any good empirical work, the article gives the reader plenty to chew on and dissect. Beyond that, the article adds an important piece to part of a renewed discussion of employer screening practices. In the 1980s and 90s, there was considerable concern about employers’ use of polygraph testing, personality testing, and similar measures during the hiring process. At the same time, there was the concern on the back end of the hiring process that an employer who failed to adequately screen its employees might hire inefficient workers or face liability in the form of negligent hiring or retention lawsuits. While the concerns on the back end largely remain the same in 2020, technology has changed so dramatically in the ensuing years that there are new concerns about the front end. These include fears about employers’ use of face-scanning algorithms, data mining, and similar screening devices during the hiring process, particularly their impact on individual privacy and potential for discriminatory outcomes. Flake’s article focuses on a decidedly low-tech screening method – questions about criminal history – but one that fits within the broader ongoing discussion. For anyone interested in these types of issues, Do Ban-the-Box-Laws Really Work? is a thought-provoking contribution to the scholarship in the area.
Perhaps one of the biggest drawbacks in the current legal academic literature is its disconnect with the scientific community. Social science and scientific research have so much to offer the legal academy, but too often this wealth of valuable information goes overlooked and unnoticed. This information can be particularly instructive to workplace law, as scholars continue to explore the driving forces behind discriminatory bias, employer motivations and other related issues.
In her fascinating piece, Acting Differently: How Science on the Social Brain Can Inform Antidiscrimination Law, Professor Susan Carle (American University) helps bridge this gap between the legal workplace literature and the academic sciences. The article is the last in a wonderful trilogy Professor Carle has written on discrimination and human behavior. I highly recommend the other two articles as well, which are available here and here.
This final piece in the trilogy is particularly valuable in its deep exploration of the existing scientific research, and its potential impact on workplace doctrine. In this paper, Professor Carle examines the experimental sciences, looking specifically at the inter-disciplinary field of social neuroscience. Much has been written over the years on the topic of unconscious bias, as we have generally seen less overt acts of discrimination in the workplace over the years since the enactment of Title VII in 1964. As a society, we are now much more aware of the illegalities of discrimination than we were decades ago, and employers have enacted policies, training, and other tools to help prevent such unlawful conduct. The research examined by Professor Carle looks specifically at unconscious bias— and how we may unknowingly treat others who express behavioral differences.
In this paper, Professor Carle takes on the issue of implicit bias by mining the rich social neuroscience research on the topic. This research goes beyond the often more superficial conclusion that unlawful bias unconsciously occurs in the workplace and examines more precisely how implicit discrimination occurs in the brain, and why it takes place. This research explores how we “automatically and non-volitionally process cues” with respect to behavioral differences between groups. (P. 662.) Professor Carle finds that what typically “matters to the brain is not status or identity per se, but what the brain perceives about how a person’s behavior reflects identity.” (P. 662.)
Most impressively, Professor Carle takes the next important step in connecting these findings to anti-discrimination law doctrine. She reasons that the findings in the social neuroscience research suggest that workplace law must look more closely to the connection that exists between how the behavior of an employee is perceived and the effectuation of a discriminatory employment decision. Put more simply, discrimination law should more fully examine the link between an employer’s perception of worker conduct and discrimination. As Professor Carle explains, the real question in many discrimination cases is whether the negative treatment of individuals is the result of their “acting differently.” (P. 706.)
By exploring the existing neuroscience research in supporting these conclusions, Professor Carle discusses the scientific research which shows empirically how we react to those that act differently from ourselves. She also raises specific proposals on workplace law reform that go along with her findings, perhaps modestly referring to them as “immediate pragmatic tweaks” to existing doctrine. (P. 717.) While this discussion itself is illuminating, Professor Carle’s more groundbreaking proposal is what she characterizes as the “recognition of a general human right to act differently,” as long as those actions do not interfere with the rights of others. (P. 717.) Professor Carle discusses in great detail this novel approach and explains exactly how the establishment of such a right could be effectuated under existing frameworks. As she concludes, “[i]t thus has become increasingly imperative that antidiscrimination advocates, using evidence-based research, promote appreciation for individuals’ “acting differently” (within the bounds of others’ rights) as a foundational value in anti-discrimination law.” (P. 730.) Professor Carle does a superb job of balancing her proposals against any potential objections and takes a well-rounded approach in the paper. Given the novel nature of what she suggests here, this type of cautious approach is particularly well warranted.
The descriptive value of Professor Carle’s analysis of social neuroscience research in this paper alone is invaluable. From her work, I learned a tremendous amount about the nature of implicit bias and how the brain works in making seemingly unconscious decisions. But this paper is so much more, as it uses this existing research to identify a new right for workers to act differently (within certain bounds). The research she discusses, and the new right she identifies, caused me to take a step back and reflect upon my own analysis and research of workplace law and anti-discrimination doctrine.
Simply put, this paper is a must read for anyone exploring implicit bias, or anyone studying the broader connection between scientific research and workplace law. I anticipate (and hope) that Professor Carle’s work here will encourage a deeper dive by others into the connection between the social sciences and other areas of employment law. And, I look forward to the robust debate which is sure to follow over the appropriateness and parameters of the new right— the right to act differently— that she sets forth in this work.
In Beyond the Bad Apple-Transforming the American Workplace for Women After #metoo, Professor Claudia Flores takes on the timeworn cliché of the proverbial “bad apple” who acts aberrantly and out of cultural context in the workplace, as well as a host of other over- and under-simplifications of elusive, pervasive workplace issues that result in the imprudent adjudication of disputes.
She begins from a very simple premise: while sex discrimination and harassment may be rife in the American workplace, there are too many structural and other impediments for any kind of meaningful, large scale individual ability to vindicate one’s rights completely under Title VII. She writes: “Complaint-based employer policies, contractually-mandated arbitration agreements, time-limited administrative exhaustion requirements, and narrow judicial interpretations of actionable conduct have created a myriad of barriers to workers seeking enforcement. For women (and some men) targeted by harassing behavior it has often been too costly–financially, professionally, and personally–to navigate a system that depends almost exclusively on individual complainants to prompt social reform.” (P. 85.) This is all too true. I often posit to my own students that society depends upon the “ripple effects” of Title VII. The statute’s sheer existence and awareness of it as it has pervaded the news and popular culture—recall the 1980’s, during which many situation comedies had “a very special episode,” in which a character encountered sexual harassment. Title VII’s ripples operate to chill offensive behavior in the workplace in a way in which individuals’ access to the courts to vindicate their rights simply does not.
Building on this premise, Professor Flores gets to what is one of the best things about this piece: its frank articulation of what it is about sexual harassment law and courts’ interpretation of it that frustrates but eludes people. Right out of the gate, Professor Flores explains the near-ineffable eloquently: “U.S. law has largely relied on the ‘bad apple’ theory of harassment. The harasser is a wayward employee and the employer an innocent third party to interpersonal relations and relation(ships) that have gone awry.” (P. 85.) Viewed through this lens by those charged with interpreting and navigating this law, Professor Flores explains, courts promulgate flawed frameworks within which to adjudicate sexual harassment cases. These tests, which “rely on prevailing opinions of gendered interactions,” belie what research has taught us about the true typical nature of sexual harassment: that it is inextricably linked to behavioral workplace patterns and culture. (P. 85.)
With this in mind, Professor Flores calls for a reconceptualization of sexual harassment that centers “less on sex and more on harassment and less on liability and more on prevention.” (P. 86.) Indeed, her vision of a more robust enforcement system is then born of a thorough review and assessment of not only the United States’ suboptimal (in her view) system, but also of other countries’ and international standards and approaches. The vision she ultimately posits, both “grounded in the dual concepts of human dignity and equality,” and situating sexual harassment, “as one form of workplace abuse, among others,” indeed does sound like one that will better effectuate Title VII’s objectives and better realize its promise. (P. 86.)
Professor Flores’s journey toward this vision is both engaging and informative. The background and exposition of the law is clear and complete. The ensuing critique of what she terms the United States’ “complaint-dependent, liability-focused process, saddled with under-resourced administrative hurdles and courts that have narrowed the statute’s potential,” is thorough and thoughtful. (P. 94.) Specifically, she issues an entreaty for acknowledgment that sexual harassment is engendered by a more systemic sexism and by misogyny, and it should not be conceptualized as disembodied interpersonal incidents. Once this occurs, she argues, the law can stop focusing solely on certain paradigmatic incidents, while ignoring or eschewing more nuanced, subtle interactions that feed the same beast. By issuing a cry for sexual harassment to be viewed as a tactic, deployed for gain in some environments, rather than a singular event, this piece adds to the rich literature on the topic of adopting a more holistic in American sexual harassment jurisprudence.
Particularly of interest is this piece’s tour through international and comparative approaches to combating sexual harassment in the workplace. By emphasizing the ideological underpinnings of the regulation and the lens through which the harassment is seen in various contexts, this part of the piece is able to shed light on differences among enforcement structures and mechanisms. So, for example, it makes sense that the international human rights legal system conceptualizes sexual harassment as a form of abuse or violence, and thus situates its regulation within workplace rights and standard violations. Whereas in some places, sexual harassment is conceptualized as a “health and safety problem,” and its regulation is linked to workplace health and safety maintenance, in others, the problem is inextricably linked to bullying, and harassment is addressed through a lens and within a vehicle that fits into that particular context. It is useful for the reader to understand how the goals and conceptualizations of each legal regime shapes each’s regulations, legal frameworks, and enforcement mechanisms. Interestingly, in the United States, the regulation of sexual harassment under Title VII is divorced from the regulation of workplace health and safety issues, which is accomplished through the vehicle of other statutes, and workplace bullying is not unlawful.
What follows is a thoughtful analysis of “Dignity and Equality in the American Context” that explores the question of whether and how a dignity-centered approach to regulation might work in a society that eschews viewing workplace regulation as a “civility code,” and prefers to focus on protected class status. (Pp. 105-09.) While the viability of a dignity-based approach has often been dismissed by scholars in the United States, the piece argues, such an approach might just “provide us with a positive vision of the workplace, which we currently lack.” Moreover, Professor Flores points out that conceptualizing sexual harassment as an issue of workplace wellbeing, as well as workplace equality, has the potential to impel employer accountability and proactiveness when it comes to workplace maintenance.
I started this piece admittedly predisposed to favor a dignity-centered model of regulation, and I finished it better informed about the way in which sexual harassment is viewed and addressed in numerous other contexts, and convinced, more than ever, that Professor Flores has the right idea. Sexual harassment law, as it is, is clunky and porous. The regulation of sexual harassment probably does belong more in the same conversation as issues such as wage inequality, workplace health and safety, unemployment insurance, the minimum wage, that devalue and debilitate the American worker. As Professor Flores puts it, “sexual harassment is likely to thrive in environments where workers are not valued, where women workers are particularly undervalued, and where employers have not provided a functional environment that discourages exploitation of existing societal status-based hierarchies and inequalities.” (Pp. 115-16.) And she has the evidence: “#MeToo reports circulated in the media this year were filled with examples of workplaces with no regulation, little worker value, and the absence of working systems of accountability.” (P. 116.) At the end of the day, the piece’s reframings, holistic approach, and suggestions are worthy of consideration. Its critiques of the current approach in this country are valid. It’s a worthwhile read; you will like it lots.
Cite as: Kerri Lynn Stone, Post-Sexist?
(June 17, 2020) (reviewing Claudia Flores, Beyond the Bad Apple-Transforming the American Workplace for Women After #metoo
, 2019 U. Chi. Legal F.
85 (2019)), https://worklaw.jotwell.com/post-sexist/
As the #MeToo movement has matured, researchers have begun to observe a second-order effect of the mass public calling-out of sexual abuse, harassment, and misconduct: the use of “defensive” tactics by male workers and managers to reduce contact with women at and outside of work, meant to avoid potential #MeToo claims. Such tactics might take the form of a “Mike Pence rule,” referencing the U.S. Vice President’s refusal to dine with a woman alone or attend an event with alcohol outside the presence of his wife, or a manager’s decision to pull back from a mentoring relationship with a junior female colleague.
Indeed, in a survey of 152 men and 303 women across industries, organizational psychologist Leanne E. Atwater and her co-authors found that one-third of male respondents reported reluctance to have a private meeting with a woman, post-#MeToo. Likewise, twenty-two percent of men and forty-four percent of women predicted that women would be excluded from work-related social interactions like gatherings for drinks after work. Another survey administered by LeanIn.org found that sixty percent of male managers reported discomfort working alone with, mentoring, or socializing with women colleagues, an almost one-third jump from the prior year.
Recent work by economists Zoë Cullen and Ricardo Perez-Truglia suggests how harmful this professional and social exclusion may be for women workers. In a clever new study, Cullen and Perez-Truglia tracked the promotion patterns of male and female employees who were assigned to teams with male or female managers at a large, multinational commercial bank. Exploiting employees’ switches between male-led and female-led teams, the researchers found a substantial male-to-male advantage that was both statistically and economically significant: “male managers (relative to female managers) improve[d] the career progression of male employees (relative to female employees).” (P. 5.) After controlling for productivity and turnover, Cullen and Perez-Truglia estimate that this male-male advantage accounted for almost forty percent of the gender gap in pay. (P. 3.)
Interestingly for #MeToo, this finding held only when male workers and managers worked in close physical proximity. In addition, the more breaks a male worker took alongside a male manager, the greater the male-male advantage. Moreover, male workers who smoked, and who switched onto teams with male managers who also smoked (thereby presumably spending substantial break time together), saw the greatest bump in their promotion prospects. Finally, the male-male advantage emerged slowly, benefiting men’s promotion chances only after a year on male-male teams. Cullen and Perez-Truglia thus point to socialization – a slow, gradual process by which male managers come to know and advocate for their male subordinates – rather than rank misogyny, as the mechanism by which the male-male benefit was conferred.
Though Cullen and Perez-Truglia do not connect their research explicitly to #MeToo and its unintended consequences, their study complements the survey results summarized above by underlining the key role that socialization can play in advancement at work. If, as their research suggests, male workers benefit disproportionately from socialization opportunities with male managers, then the increased female exclusion and isolation that result from the Mike Pence rule and its variants will only cement the male-male advantage further in place. In addition, separate and apart from #MeToo, research like Cullen’s and Perez-Truglia’s provides a valuable empirical basis for arguments about the potentially discriminatory effect of subjective screening and evaluation processes at work.
What, then, to do? Cullen and Perez-Truglia suggest involving multiple managers in promotion decisions, using more objective measures of performance in evaluating employees, and sponsoring gender-neutral social activities. Other possibilities include “nudges” built into screening and evaluation systems to prompt managers to identify their biases and deliberately think beyond them. However, as Cullen and Perez-Truglia note, more research is necessary to determine these strategies’ effectiveness. This type of empirical work is particularly important post-#MeToo, to push back against the exclusion and isolation of women workers, and to prevent male-male advantage from becoming even further embedded in the structure and organization of work.
Ronald J. Krotoszynski, Jr., Whistleblowing Speech and the First Amendment, 93 Ind. L.J. 267 (2018).
In Professor Ronald J. Krotoszynski, Jr.’s article, Whistleblowing Speech and the First Amendment, he considers how the First Amendment fails to protect the whistleblower speech of government employees and argues the insufficient protection may weaken our democracy. He claims the Supreme Court’s inadequate protection of government employee speech discourages the disclosure of important information that could help voters hold government and its officials accountable. The paucity of speech protection leads to a lack of information which leaves the public underinformed and unable to make intelligent electoral decisions about matters of public importance.
The article is worth the read for its analysis of First Amendment doctrine regarding the speech of government employees, but its focus on the harm to our democracy that flows from that doctrine makes the article particularly fresh and vital. Prof. Krotoszynski’s insights are doubly important in the wake of the whistleblowing allegations that have fueled Congress’ impeachment inquiry regarding President Trump. For all of those reasons, Prof. Krotoszynski’s article is a Thing I Like Lots.
Prof. Krotoszynski’s analysis centers on the Supreme Court’s Pickering/Connick line of cases and how poorly they protect government employee whistleblower speech. The cases afford First Amendment protection for speech related to matters of public concern, but not to speech related to matters of private concern. That narrows First Amendment protection significantly because the Court excludes “internal workplace management disputes” from matters of public concern. (P. 280.) Even attempts “to call attention to misconduct or inefficiency in government operations” may not be protected from firing if such speech causes workplace disruption. (P. 286.)
That can place the fate of a whistleblowing worker in the hands of disgruntled coworkers because “coworkers who behave badly in the wake of whistleblowing activity provide the government employer with a constitutionally acceptable predicate for firing the worker who called problems within the government agency to the attention of the body politic.” (P. 292.) That in turn significantly narrows the constitutional protection for important speech, making it less likely to be disclosed. The narrow protection is ironic given that government employees tend to be citizens who arguably have a civic duty to speak out about government mismanagement. As Prof. Krotoszynski notes, “[G]overnment employees should not be required to relinquish their right to speak more generally as citizens regarding matters of public concern as a consequence of working for a government employer.” (P. 275.)
Prof. Krotoszynski suggests the Court’s doctrine misses the point of protecting government whistleblower speech by focusing on the employee’s speech rights rather than on the value of the speech to the community. Whistleblower speech should be protected from retaliation because it “is not merely a private good, but also constitutes a public good, and First Amendment doctrine should reflect this fact.” (P. 298.) If the Court focused on the value of government employee whistleblower speech to the people, it likely would protect that speech more fulsomely.
To be clear, government employee whistleblower speech is not always unprotected, but those protections can be relatively weak. However, the uncertainty of the protection is problematic. The scope of whistleblower protection is unclear. Consequently, a whistleblower may not be able to discern whether her conduct is protected. As important, an employee who does not follow internal reporting processes and procedures when complaining will often be fired. (P. 298-99). Lastly, even if the conduct is protected, the whistleblower may not be fully protected from workplace retaliation. Unfortunately, the protection for whistleblower speech is insufficiently robust to encourage its full disclosure in every situation in which disclosure would be valuable.
Prof. Krotoszynski suggests that recognizing how public employee speech, the public’s need for information, and democratic accountability intersect is key. He argues the Court should recognize “an important First Amendment value in the context of government employee speech: the clear relationship of government employee speech to holding government accountable through the democratic process.” (P. 302.) If elections are to guarantee that proper officials are elected, voters must know how officials are performing in office. The most salient information about those issues may come from current government employees who have accurate information regarding “the areas in which the government’s efforts are falling short of the relevant mark.” (P. 300.) Those employees may also have information regarding which government officials are responsible for those shortcomings. Insufficient protection for the dissemination of that information will inhibit its disclosure. That will lessen the opportunity for elections to ensure government functions properly.
Prof. Krotoszynski’s article makes the fairly simple, but powerful, point that the lack of First Amendment protection for important information about how government works will lead to less of that information being released to the public and to a less informed electorate. That point triggers another issue that is unexplored in the article. The type of information about government officials and the workings of government that the electorate needs to have to make good electoral decisions may also be known to non-governmental entities, such as government contractors, that work with government officials. Indeed, Prof. Krotoszynski notes that Edward Snowden’s disclosure of information was quite important to the public discourse about governmental actions. Nonetheless, for various reasons, Snowden has not been treated as or protected like a whistleblower.
The disclosure of some information similar to what Snowden disclosed may be protected by whistleblower laws or general employment laws that limit terminations against public policy, but the information’s disclosure may often not be protected by the First Amendment or against retaliation. When its disclosure is unprotected, information is not likely to be disclosed. That raises the same issues that the lack of disclosure by government employees raises. That may not strictly be a First Amendment issue, but it is nearly as troublesome as the issues this article raises.
Given the issues this article raises directly and those at which it merely hints, this article is a Thing I Like Lots.
Charlotte Garden, Avoidance Creep
, __ U. Pa. L. Rev.
__ (forthcoming 2020), available at SSRN
Professor Charlotte Garden already has a well-earned reputation as a leading scholar on the intersection of labor law and the First Amendment. This reputation will only be enhanced by her outstanding new article, Avoidance Creep. The article addresses a problem in labor law, and potentially other areas, involving the doctrine of “constitutional avoidance.” This doctrine provides that if one plausible reading of a statute would make its application violate the Constitution, but another plausible reading of the statute would not be unconstitutional if applied in that context, a court should, instead of ruling the statute unconstitutional, interpret the statute such that it does not violate the Constitution.
On its face, doctrine seems sensible. But Garden shows that it has been used to twist statutory language beyond its plain meaning and the intent of its drafters. Further, “avoidance creep” means that later courts amplify and magnify the original problems such that the interpretations are unmoored not only from statutory meaning and purpose but also from proper Constitutional analysis and from the defensible justifications for Constitutional avoidance. In her words, “avoidance decisions have tended to creep beyond their stated boundaries, as decision-makers either treat them as if they were constitutional precedent, or extend them into new statutory contexts while disregarding key aspects of their original reasoning.”
Garden’s examples of this phenomenon come from Supreme Court labor law cases people in the field know well: the recent Janus case barring agency fee agreements in the public sector is an endpoint. But en route, the article analyzes private-sector agency fee cases such as Hanson, Street, and Beck. The article also discusses DeBartolo Corp. and related cases involving union secondary activities and free speech rights. In these areas, she argues that avoidance creep has led to questionable constitutional interpretations (e.g., the idea that agency fee clauses implicate the First Amendment); causes courts to assume the basic constitutionality of what is actually highly problematic statutory language (e.g., bars on secondary activity); and shackles the NLRB’s ability to interpret key statutory terms (e.g., “coerced” in NLRA §8(b)(4)).
The article first discusses the Constitutional avoidance doctrine, its justifications, and criticisms of it. This section alone will likely be informative to work law scholars. Garden then shows how the doctrine was used in the foundational labor law cases noted above and uses her “avoidance creep” framework to show how later cases became increasingly removed from statutory text, coherent constitutional analysis, and the basic purpose of constitutional avoidance. She argues that constitutional avoidance has created two problems. First, after the original case, later courts wrongly assume a statutory provision would have been held unconstitutional had it been interpreted in a broader fashion. Second, future courts faced with a similar statutory provision assume their case should come out the same way as the original case that used constitutional avoidance, even if the later case actually presents no constitutional problem.
For example, Hanson, a private-sector RLA case, suggested (without holding) that some private-sector union practices might violate the First Amendment (e.g., disqualification from union membership (and therefore from employment) of workers who held certain political beliefs or associations), but Hanson did not suggest that what unions do with dues money they receive implicated First Amendment rights. Yet, five years later, Street, ostensibly following Hanson, implied that what unions did with dues created a real Constitutional issue. To avoid this alleged Constitutional issue – which again Hanson did not raise – Street held that had Congress wished to authorize union security clauses requiring full dues (a union shop), it would have had to say so absolutely explicitly. In short, avoidance creep prevented Street from using the normal tools of statutory interpretation. This, in turn, later led to a similar result in Beck for the NLRA, despite statutory language that (as the Beck dissent pointed out) clearly authorizes a union shop. It also led to both the Abood and Janus courts to assume – arguably wrongly and definitely without careful analysis –that what unions do with dues income implicates the First Amendment. Thus, Constitutional avoidance distorted both statutory interpretations in private-sector cases and Constitutional analysis in public-sector cases.
Avoidance creep created a separate problem in the area of secondary activities. In these cases, the Supreme Court has refused to strike down §8(b)(4) on First Amendment grounds. Instead, through Constitutional avoidance, the Court has placed limits on the reach of this section’s prohibitions. For example, DeBartolo distinguished between illegal secondary picketing and (apparently Constitutionally protected) legal secondary handbilling. The Court explained that handbilling is not “coercive” as the NLRA §8(b)(4) requires. Also, Tree Fruits’ held that “product picketing” (picketing a store that sells a product, where the picketing identifies the product and not the store as the object of the picketing) did not violate §8(b)(4), clearly due to constitutional concerns. Then came avoidance creep, as later courts got the holding of earlier decisions wrong. For example, Safeco wrongly asserted that Tree Fruits had actually upheld the Constitutionality of §8(b)(4), which it did not. Further, in this context, Garden argues that avoidance creep has robbed the NLRB of significant power to interpret terms such as “coerces,” since that is now a matter of Constitutional law. Most broadly, these decisions have wrongly insulated 8(b)(4) from a more complete Constitutional challenge.
A summary of this article could not do justice to the nuanced and thorough treatment Garden gives to cases and ideas. Throughout, her arguments shed revealing new light on important areas of labor law, Constitutional law, and Constitutional theory. Other articles and scholars have argued that the cases she discusses are inconsistent with First Amendment law in other areas. But this article is the first to attribute at least some of the major problems with these cases to recurring use of Constitutional avoidance, and the first to identify and describe the problem of avoidance creep. It is a remarkable achievement that this article says something about these cases that is both new and convincing. I liked it a lot.
Editor’s Note: Reviewers choose what to review without input from Section Editors. Worklaw Section Editor Charlotte Garden had no part in the editing of this article
Cite as: Joseph Slater, Avoidance Creep
(January 31, 2020) (reviewing Charlotte Garden, Avoidance Creep
, __ U. Pa. L. Rev.
__ (forthcoming 2020), available at SSRN.
Richard Blum, Labor Picketing, The Right To Protest, and the Neoliberal First Amendment, 42 N.Y.U. Rev. L. & Soc. Change 595 (2019).
In his article, Labor Picketing, The Right To Protest, and the Neoliberal First Amendment, Professor Blum argues that labor picketing, which has received diminished protection when viewed from the statutory lens of Section 8(b)(4) of the National Labor Relations Act, would receive greater protection if viewed primarily through a constitutional lens. Blum upfront acknowledges that many scholars—notably Cynthia Estlund, Catherine Fisk, Charlotte Garden, Michael Harper, James Gray Pope, and Mark Schneider—as well as several practitioners have made similar arguments. (P. 600, n. 14.) However, he brings a fresh approach to this important legal agenda by framing the problem not only as a legal challenge but also from the union lawyers’ perspective, which he obtained through surveys and interviews. (Pp. 611–16.)
As a legal matter, Blum correctly notes that the halcyon days of labor picketing protection passed nearly eighty years ago when the Supreme Court, in Thornhill v. Alabama, held that the state’s power to regulate labor picketing was limited by the First Amendment’s free speech clause. But what the Justices giveth, the Justices may taketh away. Thus, labor picketing could lose its constitutional protection: (1) if accompanied by violence, Milk Wagon Drivers Union of Chicago, Local 753 v. Meadowmoor Dairies, Inc.; (2) if the speech targeted a neutral party, Carpenters and Joiners Union of Am., Local No. 213 v. Ritter’s Cafe; or (3) if the picketing had unlawful objectives, Giboney v. Empire Storage & Ice Co. During this time, the Court also began to view labor picketing as inherently involving conduct as well as speech, and therefore subject to greater state regulation for that reason too. Indeed, by the time the Supreme Court penned Int’l Bhd of Teamsters, Local 695 v. Vogt, the transformation of labor picketing to activity benefitting from less than full constitutional protection was nearly complete.
As the surveyed union attorneys see it, the problem is multifaceted although it generally boils down to the fact that the rules governing secondary activity are incoherent. This makes it difficult and time consuming to train union members on the dos and don’ts of labor picketing. The abstruseness also undermines the ability of rank-and-file employees to act concertedly. Indeed, Board investigators, among the most knowledgeable labor experts, themselves often misunderstand the law and often presume that secondary picketing is unlawful even when it is not. These factors, together with an outmoded and incorrect belief that all labor picketing is coercive, chills and limits secondary activity. (Pp. 613–14.)
Blum next summarizes how legal prohibitions on secondary activity butt up against the First Amendment:
[N]ormally, as long as a group’s self-expression, including picketing, does not coerce the people they confront through violence . . ., the First Amendment protects that expression. There is no basis for treating secondary labor picketing, a form of union self-expression, any differently from any other kind of picketing, whether the target is primary, secondary, or both . . . . Like other forms of picketing, labor picketing is not inherently coercive of its audience, and any coercion by picketers should, under the First Amendment, be addressed through narrowly tailored restrictions. (Pp. 616–17.)
From here, Blum turns to recent developments in First Amendment jurisprudence, agreeing with scholars that decisions like Citizens United v. FEC and Sorrell v. IMS Health, Inc. facilitate the analysis that the NLRA’s ban on secondary picketing is unconstitutional. (P. 631.) Nevertheless, Blum warns unions against buying into this Court’s neoliberal construction of the First Amendment:
It is fair enough to say that what is good for the goose, in this case, corporate and/or commercial speech, is good for the gander, i.e., labor speech. However, it would be a strategic error for labor to rely on these decisions in seeking to strike that ban under the First Amendment. Although the distinction between political and economic speech cannot be sustained, the First Amendment distinction between social movement, including labor, speech on the one hand and profit-motivated speech on the other can and should be sustained and breaking down that distinction has undesirable consequences for the labor movement and its constituents. (Pp. 638–39.)
Here, Blum offers three reasons unions should resist the temptation of relying on commercial or corporate speech decisions to extend greater protections to secondary boycott activity. First, the distinction between labor and commercial speech is “valid” because “[t]here is an essential difference between speech that proposes a commercial transaction in the marketplace and speech that defies market logic by insisting that human labor not be treated simply as a commodity.” (P. 639.) Second, the Court has never characterized labor speech as commercial speech and has, indeed, treated the two categories of speech very differently. (P. 642.) The distinguishing features of these two categories of speech “demonstrate why there are compelling societal interests, rooted in knowledge and power differentials, in regulating commercial and corporate speech that do not apply to other kinds of speech.” (P. 639.) In Blum’s view, “[u]nions should advance those compelling interests and defend the state’s regulatory authority, both to protect the state’s ability to regulate labor relations and to defend regulatory systems that protect unions’ members and broader constituencies.” Id. Third, labor does not need to rely on these decisions because other avenues of First Amendment protection are available. Id.
This article continues the important debate on how the law should treat worker self-expression. Labor advocates for more than a century have advocated for treating workers as humans who possess dignity rather than as factors of production. The law’s dignification of workers was short-lived and coincided with New Deal legislation. With the rise of the neoliberal paradigm of the late twentieth century and its law-and-economics judicial framework, the law returned to a labor-as-commodity lens. Accordingly, it is tempting to engage in a can’t-beat-them-join-them strategy as commercial and corporate speech has gained increasingly robust constitutional protection. However, as Blum points out, that strategy is inauthentic and sells out the worker qua human. Buying into this paradigm is dangerous because it transgresses every human rights value for which labor advocates have fought in exchange for a possible short-term gain. Blum’s vision allows for transformational change, rejecting the incremental breadcrumbs that Citizens United and Sorrell offer. Once those crumbs are accepted, labor is cabined. Workers, as humans who possess human rights deserve more than crumbs. Blum reminds us that our duty, as labor advocates, is to transform that neoliberal paradigm to one that treats workers with the human dignity that justly deserve.
Our understanding of work and workers is significantly enriched by immersive accounts of particular occupations and the people in them. Books like Studs Terkel’s Working, Barbara Ehrenreich’s Nickel and Dimed, and John Bowe’s Nobodies offer powerful narratives of day-to-day hopes, struggles, and indignities of workers in particular industries and milieu. The rhythms of the gig economy are unfamiliar to those in more traditional workplaces, and we are fortunate to have insightful new perspectives on these jobs: Alex Rosenblat on ride-sharing drivers; Karen Levy on truck drivers with electronic logging devices; and Casey Newton on social media content moderators. Add to this list perhaps the most mysterious, hidden form of new labor in our wired economy: the piecemeal “microwork” that facilitates online algorithmic processing.
In Ghost Work, anthropologist Mary Gray and computational social scientist Siddharth Suri—both researchers at Microsoft—have accomplished a deep dive into the world of these online crowdworkers. Although Gray and Suri at times include all sorts of platform workers within their definition, the true heart of the term “ghost work” applies to unseen AI support staffers who provide vital components of human judgment within an overall computational algorithm. As Ghost Work makes clear, key leaps in artificial intelligence capability have been possible only with an army of facilitators who make decisions such as what a camelback couch looks like, whether a face matches an ID picture, or how a slang term is used. Unlike the popular conception of indomitable machines churning through data unaided, most machine learning systems still incorporate significant human decision-making for the “last mile” of AI functionality. These are the people who make those decisions.
Gray and Suri masterfully present these workers, their jobs, the reasons they do them, and their workplace struggles. Drawing from a five-year study with over 200 interviews and tens of thousands of survey responses, the book illuminates the lives of these workers who huddle in front of their screens fielding on-demand requests. The work is performed through application programming interfaces (APIs) that present an onslaught of opportunities, each paying small fees for a completed task. The research team focused on workers at four different machine-learning platforms: Amazon’s Mechanical Turk, Microsoft’s internal Universal Human Relevance System, sales facilitator LeadGenius, and translation site Amara. We meet workers on these platforms, living in the United States and India, who participate with varying degrees of commitment and success in these platforms’ daily churn.
According to Gray and Suri’s research, these on-demand platform workers do not follow a uniform pattern of engagement. Rather, they break down into three categories: new and experimental workers, who are just trying the site and may never return; consistent workers, who regularly participate on the platform for at least some period of time; and the high-performers who work full-time or more and are responsible for most of the work that actually gets done. (P. 103.) And through individualized vignettes, we learn about these workers’ approach to “ghost” work: Zaffar, a young Muslim man in Hyderabad who can deftly ferret out promising opportunities for LeadGenius; Kumuda, a Hindu mother who has become the highest earner in her Indian town through Mechanical Turk; and Joan, who judges whether pictures match their textual description while caring for her ailing mother in Houston.
Ghost Work highlights the advantages of these jobs: flexibility to work at home and on an irregular schedule; the ability to experiment with different types of tasks and skills; and the hidden nature of one’s sex, race, nationality, or disability, so as to avoid discrimination. At the same time, however, the authors demonstrate the precarity of this work, and the potential for the infliction of “algorithmic cruelty.” Ghost workers spend much of their time searching for tasks and vetting the providers without compensation; they train themselves and manage their reputations while hoping not to violate the providers’ unwritten norms and rules; and they may be fired or fail to receive payment through automated decisions that cannot be appealed. Paired with the dehumanization of these isolated and fragmented tasks, the proliferation of ghost work ultimately seems overwhelming and demoralizing.
In the book’s conclusion, Gray and Suri offer a series of reforms designed to render ghost work sustainable. These include: facilitating collaboration and communication among platform workers; allowing workers to take their reputation and experience data to other platforms and positions; providing for a “good work code” across platforms and users; and installing a safety net either through publicly-provided benefits or a universal basic income. Two proposed fixes are of special interest to labor and employment law academics: changing the definition of employment, and using unions or quasi-unions to match workers with jobs and to resolve grievances, especially regarding pay. The authors are vague about the new employment classification, other than specifying it should not focus on full-time work. This superficiality is frustrating. And the book’s history of contingent work has some puzzling assertions: for example, it implies that NLRB v. Hearst Publications and the Taft-Hartley Act related to the definition of employment under the Fair Labor Standards Act. (Pp. 49-50.) This muddle is a shame; the FLSA’s use of “suffer or permit to work” would have provided a nice starting point for a more robust discussion of the legal definition(s) of employment.
Despite Ghost Work’s in-depth descriptions of the travails of this contingent and neglected workforce, Gray and Suri leave room for hope as well. They do not think that AI will engulf human labor; instead, people will always be necessary to produce appropriate and meaningful results. And even within their atomized employment, ghost workers have still found the opportunity to talk with each other about their jobs, collaborate on tasks, and help new workers find their way. The problems of ghost work are neither intractable nor inevitable. By educating us on this largely hidden labor pool, Gray and Suri have opened up a conversation about how best to structure these jobs, and how to promote human flourishing for everyone on these platforms.
Cite as: Matt Bodie, Ghosts in the Shell
(November 25, 2019) (reviewing Mary L. Gray & Siddharth Suri, Ghost Work: How to Stop Silicon Valley from Building a New Global Underclass
James A. Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation
, 94 Ind. L.J. __
(forthcoming 2019), available at SSRN
Employment discrimination doctrine is a mess, and one of the messiest parts concerns causation. Problems with causation have been the focal point of many articles in recent years, often in response to the “tortification” of employment discrimination law. You might think that there is nothing more to say, and that we’re just stuck with the mess. But James Macleod’s article, Ordinary Causation: A Study in Experimental Statutory Interpretation has persuaded me that neither is true.
In this article, Professor Macleod breathes fresh life into interpretation of Title VII by using the tools of experimental philosophy to explore the meaning of “because of” and other statutory causal language. What better way to determine the ordinary public meaning of a phrase, particularly a phrase in context, than to survey a representative sample of the population, ask whether a particular result was because of the reason described in the statute, and then share that information publicly? Professor Macleod did just that, and his article makes a case for this approach and then reports on his results.
The paper’s first two sections summarize familiar ground. Part I analyzes recent case law on statutory causation, and Part II summarizes why courts are properly concerned about ordinary meaning in legal interpretation. Recent years have seen significant decisions interpreting causal language in statutes. Two of these cases are employment discrimination cases: Gross v. FBL Financial Services, under the Age Discrimination in Employment Act, and University of Texas Southwestern Medical Center v. Nassar, under Title VII’s retaliation provision. In both cases, the Court held that the plain meaning of “because of” required plaintiffs to prove that an improper motive was a but-for cause of the adverse employment actions they suffered.
The Court’s own view is that that its job is to find the plain meaning of the statutory language. Professor Macleod agrees, arguing that this search for plain meaning is particularly appropriate for concepts like causation, which are core common law concepts and embody a sense of moral wrong. But Parts III and IV, which form the core of the paper, draw out the weaknesses of judges’ methodology for finding plain meaning, as well as explaining the benefits of the survey experiment method.
In Part III, Professor Macleod makes a persuasive case for the weakness of judges’ current methodology. Judges generally rely on introspection, hypothetical test situations (called intuition pumps), and dictionaries. Introspection is a poor tool because judges, like any of us, are subject to cognitive biases like motivated reasoning and confirmation bias. Because different hypotheticals, or intuition pumps, can point to different conclusions, judges may discount those that don’t match their initial intuition. This is simply another way that motivated reasoning and confirmation bias limit the power of individual reasoning. And dictionaries, though external, cannot use terms in context, which is often indispensable for understanding how language actually operates. Moreover, dictionaries often provide so many alternative meanings that a judge must pick from among them, often in ways that confirm initial intuitions. Confounding the operation of these biases, Professor Macleod notes, individuals are overconfident in their intuitions. We tend to think that we are representative of the population at large, even when we are wrong about what most people would think.
Part IV then explains the survey experiment method of finding plain meaning in context, which is already being used in litigation. Professor Macleod makes the case for why it is an improvement over other methods and reports the results of his own survey experiment: that courts have often reached the wrong outcomes about causation.
The key intuition underlying this approach is so straightforward, it almost seems too easy: “to find public meaning, ask the public.” But framing an experiment to discern that meaning is no easy task. Professor Macleod conducted a nationally representative survey of nearly 1500 jury-eligible lay people. Participants were randomly assigned to read a short vignette modeled on one of the cases the Court had adopted a but-for approach in. They were then asked about the cause of the result. In one vignette modeled on Gross, for example, participants were asked whether the protagonist terminated the employee “because of” the employee’s age in a situation where age and one other reason could have caused the outcome. Each vignette had four variations (participants were randomly assigned to which option they answered), in which the improper reason was necessary and sufficient, necessary but insufficient, unnecessary but sufficient, or unnecessary and insufficient. In this way, Professor Macleod was able to discern the public’s understanding of when someone is fired “because of” an improper reason.
The study found, essentially, six things. First, a sizeable majority of respondents found causation present in situations where but-for cause was absent–in fact even where independent sufficiency was also absent. Second, sufficiency’s presence or absence played a much larger role in responses than the presence or absence of but-for causation. Third, the substantial factor test seemed to be what a large majority of participants interpreted the statutory language to require. Fourth, the moral preferences of participants followed sufficiency rather than but-for causation. Fifth, participants in the minority were just as confident that their interpretation was the only right one as were participants in the majority. And Sixth, the results were responsive to small differences in changes of causal language even in highly blameworthy contexts, showing that language mattered. As a result of these findings, Professor Macleod concluded that courts have incorrectly interpreted the plain mean of “because of” as requiring but-for causation. Instead, “because of” pretty plainly means “substantial factor” to the overwhelming majority of people.
Professor Macleod acknowledges the limitations to this approach to statutory interpretation in some contexts. For example, survey experiments can test current usage and concepts, but not historical ones. So where the meaning of terms has changed significantly over time, say, for example, what sex or race are, this approach to discerning meaning may be less appealing to courts.
Professor Macleod has written an engaging article with far-reaching implications. In fact, I am already trying to think of ways to use his approach to better teach my courses. I look forward to more work by Professor Macleod in this area.
Cite as: Marcia L. McCormick, Crowdsourcing Plain Meaning
(November 4, 2019) (reviewing James A. Macleod, Ordinary Causation: A Study in Experimental Statutory Interpretation
, 94 Ind. L.J. __
(forthcoming 2019), available at SSRN), https://worklaw.jotwell.com/crowdsourcing-plain-meaning/