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Sun Apr 21, 2013 at 05:58 PM PDT

Tsarnaev brothers-Suicide/Murder by Cop?

by Jim3K

When I was just out of the University of Arizona law school back in the late ‘60s, and awaiting the bar exam results, I took a few days to drive north from Tucson to western Colorado.  Interstate 10 to Phoenix in those days was still hit or miss between the previous four-lane US highway and the new divided freeway.  I had driven roughly 40 miles in my Nader-disapproved Corvair when I encountered a police activity scene in a construction zone between Marana and Picacho Peak.  The highway patrol had shut things down and we were forced to wait.  After about half an hour we were released, but I could see sheriff’s and emergency vehicles several hundred yards out on the desert to the east.  It clearly was not a highway accident or something involving the road project.  I couldn’t easily figure it out.

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Sun Mar 10, 2013 at 08:32 PM PDT

Responding to falsehoods about the NLRB

by Jim3K

Bill Wilson is supposedly the head of something called Americans For Limited Government.  I don't know exactly what that (astroturf) group is.  But I can tell you that Wilson spews right wing, false propaganda.  He's written an op-ed which has been picked up and published on March 8 by at least two right wing publications.  They are Investors Business News and FITS News.  There are only slight differences between them.  You can read them thru the links if you want, but I'd skip it unless you want to give those publications hits. Instead, read my response below the fold.  (I modified the one to FITS, since it needed a bit more proofing and polish.)

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Tue Jul 03, 2012 at 05:41 PM PDT

Jónsdóttir on the DoJ and Assange

by Jim3K

I can't really add to what Birgita Jónsdóttir has written here in The Guardian.

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In 1967, the Supreme Court decided a case called NLRB v. C & C Plywood.  Its principle has become a foundation of fair collective bargaining.  But this week, the House will vote on an amendment to the National Labor Relations Act which will undo the principle entirely.  And the proposed change is stealthy—it doesn’t mention that its purpose is to undermine both the case and the portion of the statute which forces good faith bargaining on both management and the union.  And it’s deceptive in its appeal.

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I’m not claiming actual knowledge of why the Indiana legislature is trying to force a right to work law on its electorate, though I think I know the real reason and state my opinion below.  But I suggest that, if the legislature is truly concerned about forms of compulsory unionism, that reason is illusory and unsupported by fact.  Indeed, passage of a right to work law interferes with workplace democracy in a significant way.

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First of all, excellent post by Laura Clawson describing the manner in which the NLRB’s Acting General Counsel handled the dismissal, presenting the judge with the Union’s withdrawal of the charge and the judge’s remand to the Regional director to approve the withdrawal.

In addition, Clawson’s assessment of how the manner should be perceived is on the money.  Solomon’s statement, that this is the preferred way of resolving labor disputes is absolutely accurate.  Believe me… after over 40 years experience with the Board, I know how this is done.  So ideally, this should be the end.  Both the Union and Boeing can go about their business, and South Carolina can get off its fear horse, appreciative of its luck that its billion-dollar investment didn’t go south due to its own recklessness.

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Sat Dec 03, 2011 at 01:15 AM PST

Your Call, Daily Caller

by Jim3K

Your call, Daily Caller

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Does Boeing settlement mean NLRB's actions were for naught?  Huh?  What a dumb question.  But the LA Times business blog asks it anyway, revealing its ignorance.

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Fri Nov 11, 2011 at 01:04 PM PST

The Right Side News has it Wrong

by Jim3K

Tom Fitton of the Right Side News, which I believe is a sister to Judicial Watch, has written a condemnation today of the NLRB (what's new?) His ignorance and distortion is manifest.  Hopefully, this will set him straight.  I'd have done it directly, but Right Side News' comment section is virtually unusable, since it allows only for small comments.

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Mon Sep 12, 2011 at 06:06 PM PDT

The assault on the NLRB continues

by Jim3K

Today, in the Knoxville News Biz page, Tea Party GOPer (Dr.) Scott DesJarlais, weighed in on management's side.  DesJarlais is a freshman Congressman assigned to Issa's government oversight committee and seems to hold the same sharp knife.

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Thu Apr 07, 2011 at 10:26 PM PDT

The Court's Intellectual Dishonesty

by Jim3K

I write here in support of the notion that Justice Kennedy’s majority opinion in Arizona Christian School Tuition v. Winn (decided April 4) is a piece of intellectual dishonesty of the worst sort.  In fact, a Supreme Court pattern of intellectual dishonesty can be discerned in cases which the Court believes it necessary to protect churches from harms which are in large part imaginary.

The Court’s response to such a perceived attack is often eyebrow-raising because it is a radical departure from what the parties were arguing and presenting.  Off the bat, I can cite two cases where this is so.  The obvious one, Arizona Christian, I will discuss below.  The other, perhaps forgotten, since it was decided in 1979 by a Court composed of entirely different justices, is NLRB v. Catholic Bishop of Chicago, 440 US 490.  Like Arizona Christian, it is a 5-4 decision.  It was authored by Chief Justice Burger.

The NLRB enforces a federal law, the National Labor Relations Act.  That Act provides the Board with a broad jurisdictional mandate in order to mitigate labor disputes as they may have an impact on interstate commerce.  Through its election process, it certifies labor unions as the exclusive collective bargaining representative of the employees of an employer; it also has an enforcement side.  In each case the employer must be engaged in interstate commerce.  The Board always asserts jurisdiction based on one of its economic yardsticks; these vary slightly depending on the industry.  The main point here is that the Board’s mandate is broad and in general does not exclude many types of businesses.  To be sure, it has excluded some due to the wording of its statute (government corporations, political subdivisions, railways/airlines) and it has exercised some discretion under Sec. 14(c) not to exercise jurisdiction in some narrow circumstances (e.g., horseracing, real estate brokers); moreover, Congress has not authorized the Board to spend any money on farm employees’ labor issues.  

Every other private industry is seemingly covered, including, it would seem, private schools.  Certainly there is no statutory language barring the Board from applying the NLRA to private schools.  After all, they are not political subdivisions.

In Catholic Bishop, the Board had certified (after an election) a bargaining unit of lay teachers employed by two parochial high school systems, one operated by the Bishop of Chicago and the other by the Fort Wayne-South Bend Diocese.   This required the two systems to bargain collectively with the certified union.  They refused and, using its enforcement power, the Board issued an order requiring them to do so.  The school systems appealed to the Seventh Circuit which refused to enforce the Board’s order, finding the order conflicted with the parochial systems’ First Amendment religious freedom.  The Board obtained a review by the Burger Court.

As presented, the case was seen by all parties as an “excessive government entanglement” issue under Lemon v. Kurtzman, 403 US 602 (1971):  Was the Board as a government regulator excessively entangling itself in matters religious?  The Board could not see how that was so, since its certification had covered only lay teachers and had specifically excluded from the bargaining unit those teachers who were part of the religious instruction. The schools disagreed, asserting that excessive entanglement was clear, since all its teachers were supposed to support Catholic teachings.

Thus, excessive entanglement was the issue everyone believed was the issue the Court would decide.  Is that what the Court did?  Of course not!  It based its decision on an entirely different line of thinking—one which had not been argued but which would avoid the entanglement question and which would shield the parochial systems from union organizing forever.  It dishonestly applied what it said was a statutory construction analysis.  Except it wasn’t.

For background on statutory construction analysis I link to the Congressional Research Service’s monograph on the principles to be generally applied.       In Chicago Bishop  the appropriate guideline was the principle that general laws are to be applied to everyone, unless the law provides for a specific exception.  Sometimes this is described as “the specific governs the general.”  There is nothing remarkable about the concept; it is seen in other disciplines.

But Burger’s decision, went off the rails.  Instead, he held that because the Congress had not specifically included parochial schools in its statutory mandate to the Board, the Board was barred from asserting jurisdiction.  This, was of course, absolutely contrary to statutory construction principles.  In fact, Burger said:

Our examination of the statute and its legislative history indicates that Congress simply gave no consideration to church-operated schools. It is not without significance, however, that the Senate Committee on Education and Labor chose a college professor's dispute with the college as an example of  employer-employee relations not covered by the Act. S. Rep. No. 573, 74th Cong., 1st Sess., 7 (1935), 2 Legislative History, supra, at 2307.
*    *    *
Accordingly, in the absence of a clear expression of Congress' intent to bring teachers in church-operated schools within the jurisdiction of the Board, we decline to construe the Act in a manner that could in turn call upon the Court to resolve difficult and sensitive questions arising out of the guarantees of the First Amendment Religion Clauses.

It is true that Burger also gave some lip service to the entanglement issue, but that is not the basis for the decision.  Indeed, he never discusses whether the Board’s assertion of jurisdiction would have, on a factual basis, actually interfered with the religious purpose of the school.  He just presumes it.  He certainly did not give the unions a chance to bargain in a manner which would have shown whether collective bargaining and church purpose were incompatible.  He simply assumed it as a fact.  That assumption is unsupportable.  The upshot of Chicago Bishop was to deny forever the right of non-sectarian teachers at parochial schools the same right to union representation as their counterparts in non-sectarian private schools.  

Clearly, Chicago Bishop is an exercise in dishonest judicial analysis.  One can only ask why he and the majority did that.

And that brings me to Arizona Christian.  The best way to understand this case is to read Justice Kagan’s dissent.  For one thing, it is clear that she has found a voice.  Her power is very strong and her logic is compelling.  The case involves a tax credit to Arizona income tax payers on a dollar for dollar basis if they contribute to a tuition fund to pay the tuition of students attending private religious schools.

This is a taxpayer suit to end that practice.  Usually, taxpayer suits are disallowed on the basis that individual taxpayers have no standing to sue because their interest in the outcome is too miniscule to be justiciable.  Because the case had already been before the Court, and standing had already been presumed satisfied under a case called Flast, the parties reasonably believed standing was not a concern.  

But no!  As soon as the 9th Circuit determined on the remand that the tax credit in question was an impermissible support of religion, and its logic was close to impeccable, the Court decided, as its conservative members had in Catholic Bishop, it needed to protect the religious-based schools.  But how?  It was now faced with an able decision below, but one which it did not like.  So what did it do?  Well…it chose to invoke the rule against taxpayer suits—which it had not done earlier when it could have.  

Kagan: Until today, this Court has never so much as hinted that litigants in the same shoes as the Plaintiffs lack standing under Flast. To the contrary: We have faced the identical situation five times--including in a prior incarnation of this very case!--and we have five times resolved the suit without questioning the plaintiffs' standing. Lower federal courts have followed our example and handled the matter in the same way.  I count 14 separate cases (involving 20 appellate and district courts) that adjudicated taxpayer challenges to tax expenditures alleged to violate the Establishment Clause. [footnote omitted] I suspect I have missed a few. I have not found any instance of a court dismissing such a claim for lack of standing.
*    *    *
The Solicitor General, participating here as amicus curiae, conceded at oral argument that under the Federal Government's--and now the Court's--view of taxpayer standing, each of these five cases should have been dismissed for lack of jurisdiction.

As a result, we now have created a false dichotomy.  There is no doubt, as Kagan points out (and even Kennedy acknowledges) that the difference between government grants and government tax credits is negligible.  But the first is barred and the latter is permissible.  This is a classic case of form prevailing over substance, something the courts generally will not countenance.  But the Court not only approved that generally rejected analysis, it has now enshrined it.  That means trouble ahead in circumstances not yet seen.

In any event, this again is an intellectually dishonest decision, nakedly and partisanly providing government support to religious schools while at the same time depriving the State’s general fund with revenue it would otherwise have had.  Who is the Court benefitting?  Certainly not cash-strapped states.  But why?  The simple answer is that it wants to provide public support for religious-based schools.  That purpose is improper and the means it used to obtain that end is entirely intellectually dishonest.  

One thing can be said here, though.  Private, non-religious schools may have actual standing to complain that they are not receiving equal treatment under Arizona law because they are not providing a religious education.   That kind of complaint may happen shortly and the state may regret what it has done.  

My main point stands:  When it comes to protecting religion from perceived harm, whether realistic or not, the Supreme Court has consistently been dishonest.  It is result-oriented.  Beyond that, the conservative majority has overreached: In Catholic Bishop it legislated from the bench; in Arizona Christian it approved a fraud on the public (payment of taxes to the straw man tuition organization) in order to assist the religious schools.  Hypocrisy at its worst.

There are other criticisms which can legitimately be made of Kennedy’s decision, including his analysis of Madison's 1785 Memorial and Remonstrance to the Virginia legislature as well as his failure to understand the Locke-ian principles of the separation of church and state.  But these would clutter up my main point, which is

Burger and Kennedy (together with their fellow majority Justices) are intellectually dishonest when it comes to government support of religion and should be roundly condemned for it!


Sun Aug 02, 2009 at 10:04 PM PDT

Lurita Doan can't analyze

by Jim3K

Lurita Doan was the head of Bush’s General Services Administration for slightly over 2 years – 2006-2008, when she was asked to resign.  An African-American, she is now a conservative radio commentator who, in a Sunday op-ed in the LA Times, aligned herself with conservatives against Professor Henry Gates.
In her piece she asserts, in a contorted manner, that the Harvard of 1941, where her father played lacrosse as a young black man, is no different than the Harvard of 2009.  

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