Libro estudia poder de corte constitucional ecuatoriana

El abogado Ugo Stornaiolo Silva ha publicado un libro, Jueces Como Soberanos: Una Exploración Jurídico-Política del Poder Supremo de la Corte Constitucional Ecuatoriana (Amazon). (English below.)

Stornaiolo es un abogado ecuatoriano y estudiante de LL.M. Nos conocimos cuando él era estudiante mío en el Programa de Derecho Americano de la Universidad Católica de América en la Universidad Jagellónica de Cracovia, Polonia. Visitó generosamente mi clase de Derecho Comparado en UMass, a través de Zoom en la primavera, para hablar sobre derecho constitucional comparado, especialmente a la luz de notables decisiones recientes de los tribunales ecuatorianos con respecto a los derechos indígenas y los derechos de la naturaleza.

Aquí está el resumen del libro nuevo.

Por lo dispuesto en la Constitución actualmente vigente, la Corte Constitucional ecuatoriana es una de las instituciones más importantes del diseño constitucional ecuatoriano, y sus extensos poderes, sin contrapesos o fiscalización, podrían sugerir que es un ente soberano dentro de nuestro país frente a una institucionalidad de poderes separados que no puede ejercer sus funciones fuera de su control.

Sin embargo, la soberanía de la Corte Constitucional no es un fenómeno expreso, por lo que demostrar su condición soberana podría significar un cambio de paradigma en el entendimiento crítico de nuestro propio ordenamiento político y jurídico.

Stornaiolo escribe para el websitio, The Libertarian Catholic (El Católico Libertario). Para conocer una muestra en inglés de su trabajo sobre el constitucionalismo ecuatoriano, consulte su artículo de 2021,  "Originalism and Textualism Are Not Enough Against Constitutional Lawfare" ("El Originalismo y el Textualismo No Son Suficientes Contra la Guerra Jurídica Constitucional").

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Attorney Ugo Stornaiolo Silva has published a book, Jueces Como Soberanos: Una Exploración Jurídico-Política del Poder Supremo de la Corte Constitucional Ecuatoriana (Judges as Sovereigns: A Legal-Political Exploration of the Supreme Power of the Ecuadorian Constitutional Court) (Amazon).

Stornaiolo is an Ecuadorean lawyer and LL.M. student. We met when he was a student in my class in the American Law Program of The Catholic University of America at Jagiellonian University in Kraków, Poland. He generously visited my Comparative Law class at UMass, via Zoom in the spring, to talk about comparative constitutional law, especially in light of recent noteworthy decisions by Ecuadorian courts regarding indigenous rights and the rights of nature.

Here is the précis of the book (my translation).

Based on constitutional law as presently in force, the Ecuadorian Constitutional Court is one of the most important institutions in the Ecuadorian constitutional design, and its extensive powers, without checks or oversight, could suggest that it is a sovereign entity within our country, in opposition to the separation-of-powers framework, by which one cannot exercise power beyond the scope of authority.

However, the sovereignty of the Constitutional Court is not an explicit phenomenon, so demonstrating its sovereign condition could mean a paradigm shift in the critical understanding of our own political and juridical order.

Stornaiolo writes for the website, The Libertarian Catholic. For a taste in English of his work on Ecuadorian constitutionalism, check out his 2021, paper,   "Originalism and Textualism Are Not Enough Against Constitutional Lawfare."

Expert explains Ecuadorean constitutional law

Ugo Stornaiolo Silva
(via Mises Institute)

An Ecuadorean lawyer and LL.M. candidate, Ugo Stornaiolo Silva thinks deeply about constitutional law and social and economic organization. Today he'll speak to my Comparative Law class.

The Constitutional Court of Ecuador has been garnering headlines in recent years with landmark rulings in areas such as indigenous rights, animal rights, and the rights of nature. I wrote here last summer about the successful habeas petition of a woolly monkey. That case followed a decision in which the court compelled the government to hear from indigenous people in the Amazon before authorizing extraction projects (before decision).

Last year Stornaiolo wrote a piece for The Libertarian Catholic (other work there) comparing the U.S. Supreme Court with the Constitutional Court of Ecuador. While the Ecuadorean court often appears to the world as a monolithic bastion of progressivism, the court in fact has an ideological divide that is analogous to, though different from, the conservative-liberal divide of the U.S. Supreme Court, Stornaiolo explained. He wrote,

[f]or instance, the Ecuadorian Constitutional Court textualist faction would be composed by President Salgado, and judges Nuques, Herrería Bonnet, Corral, with both Salgado and Corral filling in for Clarence Thomas position as the often-dissenting originalist in the Court, and Herrería Bonnet as more moderate, and its so-called "garantist" and "progressive" faction would consist of judges Grijalva, Ávila, Lozada, Salazar and Andrade, with Ávila and  Salazar filling in for Sonia Sotomayor’s position as the most activist judges, considering they have drafted some of the most controversial majority opinions of the Court in cases such that ruled on the constitutionality of cannabis recreational use, same-sex marriage, abortion and the criminality of teenage consensual sexual relations.

Stornaiolo's other work has examined comparative constitutional interpretation and the public-private divide. In the United States, Stornaiolo has been an academy fellow for the Heritage Foundation and a research fellow for the libertarian Mises Institute. I was fortunate to have Stornaiolo as a student in my American Tort Law class in fall 2022 at Jagiellonian University in Kraków, Poland, where he is studying for his LL.M. in a joint program with The Catholic University of America in Washington, D.C.

On Monday, March 20, Stornaiolo will join my Comparative Law class via Zoom to talk about the Constitutional Court of Ecuador and comparative constitutionalism in Latin America more broadly.

With fascinating developments in constitutional law afoot in Latin America and the Ecuador Constitutional Court driving the trends, Stornaiolo is a lawyer to watch.

Proposed Biden rule would try again to compel airline pricing transparency; it worked out so well last time

President Biden has his own plane.

(U.S. Mission photo by Eric Bridiers CC BY-SA 2.0 via Flickr)

The U.S. Department of Transportation (DOT) has proposed a rule to refresh pricing transparency in the airline industry.

According to a DOT press release: "Under the proposed rule, airlines and travel search websites would have to disclose upfront—the first time an airfare is displayed—any fees charged to sit with your child, for changing or cancelling your flight, and for checked or carry-on baggage." 

For me, the new rule can't happen soon enough. At the same time, I'm doubtful we'll see much change in the opacity of the airfare market.

I'm a libertarian. But in America, libertarianism is too often confused with a radically absolutist version of laissez-faire capitalism. Libertarianism rather is about the virtues of a free market. And free markets depend on conditions that don't naturally tend to exist in the real world, including a free flow of information between buyer and seller—that is, transparency. Free markets require regulation to ensure that they remain free.

The airline industry, especially since it moved to online sales, is case in point. In the online marketplace, customers are attracted by low upfront prices. Airlines found that sales improved when the upfront price was lowered by moving some of the fare, especially bag-check costs, to add-on fees later in the purchase transaction. Southwest famously resisted bag-check fees and has capitalized on its exceptionalism, though not without costs. 

In the usual purchase transaction, the low upfront price is too attractive to resist. And competitors' add-ons are not always apparent until the customer has sunken too much time and money into the booking to look back. Indeed, Delta does not even allow customers to prepay bag check, so fliers are not confronted with the bag-check add-on until the day of departure.

Dollars are not the only costs that airlines can conceal from customers doing online price comparison. Inconvenient routing with multiple and lengthy layovers can cost fliers time and money down the line. Early morning and late night flight departures and arrivals can significantly increase airport transfer costs, besides risking personal security and inducing exhaustion. Seat availability can be limited, making flying literally painful for someone six-foot-five or weak of bladder. 

Negotiating these options can be grueling for the consumer, and the market can seem ungoverned by logic. For me, it is not unusual to take days, at hours per day, sifting and testing the market to get the best deal on an air itinerary. In a recent search process, I found, not atypically, that I could fly from city A to city B to city C for less than it cost to fly from city A to city B, which was my actual destination, because direct service is more desirable. But buying the cheaper fare and leaving the airport at city B is called "skiplagging," or "hidden city ticketing," and airlines can be nasty about enforcing their prohibition on it.

On the one hand, I respect the airlines' free-market discretion to charge a higher price for a direct flight than for a less desired routing. On the other hand, there is a confounding absurdity to the idea that I would find myself at home in city B, yet be obligated to board a plane to carry on to someplace I don't want to go. Courts have been hostile to airlines' efforts to penalize skiplaggers financially. But they won't stop an airline from zeroing out a customer's frequent flier miles or even banning the flier from the line.

Like radar detector technologists with speeding enforcers, airlines have played cat and mouse with private and public regulators. Search engines have become more sophisticated in allowing customers to specify parameters, such as bag checks and connections. But the providers vary in options and their efficacy. Kayak tries to help with bag-check fees; Expedia not as much. And the mere act of online price comparison might introduce costs; despite industry denials, there is some evidence that consumers trigger price increases by repeating searches on Kayak and Google.

The search engines anyway can only sort data that the airlines provide, and they are not always forthcoming with details. Some airlines shun intermediary booking sites wholly. Airlines started gaming bag-check fees in 2008. Customer frustration finally precipitated disclosure regulation in 2011.

The regulation failed; bag-check fees are not easy to find. At Frontier and Spirit, the pricing is variable, so a shopper must enter data about a specific flight to get a number that allows price comparison. Meanwhile, bag-check fees have extended to an array of options. United is among airlines that now charge for a carry-on bag, and JetBlue charges for overhead bin space.

Add to the mix that JetBlue and Spirit announced their merger in 2022, even as JetBlue defends its partnership with behemoth American Airlines in litigation with the Justice Department (DOJ). Fewer carriers never results in improved transparency or lower prices for customers. Anti-competitive conglomeration is a natural market tendency, and healthy to a point, but it must be counterbalanced by thoughtful and vigorous antitrust regulation.

Even if DOJ is successful in the present antitrust litigation, the success will be a drop in the bucket of an industry that already is far too monopolized. The United States has nothing like the peanut airlines that blanket Europe. There are legitimate reasons for that deficiency, for example, our larger land mass. But there are plenty of illegitimate reasons, too, including monopoly by air carriers and monopoly in secondary markets, such as airports, baggage handling, and the transportation infrastructure that supports transfers.

The proposed rule announced by the Biden Administration is better than nothing, if it is promulgated intact. But the rule barely scratches the surface of what's needed to move the airline industry into a truly free market, in which consumers have a fighting chance. Extrapolating from past efforts to compel the disclosure of bag-check fees, it's safe to predict that the airlines already are one step ahead, and little will change for the consumer's experience.

A free market is a transparent market with manageable entry barriers. Consumers should be able to compare prices head to head for the same services. The internet should have facilitated the free market and leveled the playing field for buyers. Instead, weak regulation has let industry run amuck and obfuscate pricing. Absolutist laissez-faire capitalism is otherwise known as corporatocracy.

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Presently, I'm using two different modalities to try to pursue penalty fees from airlines for flight delays I experienced in the summer under European Union regulatory jurisdiction. When I have outcomes to report, I'll blog about it.

R.I. Capitol, 'SNL' signal stand with Ukraine

My state capitol in azure and gold:

Rhode Island stands with the people of @Ukraine. pic.twitter.com/kdWU1dJ4HP

— Governor Dan McKee (@GovDanMcKee) February 27, 2022

On a less softhearted note, I was not happy with some of the sentiments from Uprise RI in the state-capital rally. To my eye, too many demonstrators were more interested in evidencing apathy by demanding U.S. non-intervention than in expressing any empathy or support for Ukraine.  This selfishness, no less a nationalism on the left than on the right, reminds me why I have long refused to register with the Libertarian Party, even if I am a small-l libertarian.  Libertarianism should not mean isolationism; even objectivism does not utterly eschew the common defense.  I wish we lived in a world of peace and daisies, but that's delusional.  There is such a thing as jus ad bellum.

Anyway, hats off to Saturday Night Live, which hit a right chord with a classy cold open this past weekend.

The situation at the Polish border is both a growing humanitarian crisis and a burgeoning source of stirring stories of compassion.  I hope to write more on that soon as I hear from friends there.

RIP Hollis Joslin, JD '14, attorney, pilot, novelist

I'm heartbroken to report the sudden death of a dear friend, attorney, and alumnus, Hollis Gordon Joslin, JD '14, at age 56.

A husband, father, and grandfather, Hollis was a real-life "Renaissance man."  Besides lawyer, he was an auto mechanic, entrepreneur, licensed pilot, outdoorsman, poet, musician, and novelist.  In law, he practiced in bankruptcy and personal injury.  He made a series of funny ads for his practice, but also a serious one.  Owing to popular skepticism of lawyers, a viewer might misinterpret his serious ad as saccharine, but I can say from knowing Hollis, and knowing his Christian faith, that his down-home expression of compassion for would-be clients is purely genuine.

Hollis came to formal higher education only later in life, finishing his bachelor's in 2010.  In the finest tradition of a non-traditional student in law school, he was respected and adored by youthful classmates, whom he mentored generously with gentle and humble wisdom.  If formally a student in my torts classes, he was foremost a teacher to me, too.  He thought deeply about philosophy, economics, and politics, and was eager for a discussion partner to test out revelations.  I obliged to my own benefit.

One auspicious fruit of Hollis's deep thinking—I like to imagine forged at least in part by our conversations, but I probably self-aggrandize—was a clever novel that he conceived of as a contemporary revision of Randian objectivism, incorporating his own ideas.  Like me, Hollis subscribed to laissez-faire regulatory policy in principle, embodying the libertarian impulses of his native Texas.  But he also was deeply troubled by the prospect of corporatocracy.  Here is a précis of the book, "Citizens United":

If, as the Supreme Court said in Citizens United, the political speech of a corporation is no less protected by the First Amendment than that of natural persons, then the First Amendment implies a right for corporations to speak from elected office. That is the theory Vizion Inc. proposed to justify the corporation's candidacy for president of the United States: a less than remarkable development in a dystopian world dominated by the Global Trade Partnership. But the new Republic of Texas is having none of it. Flourishing under a policy of liberty and individual empowerment, Texas is all that stands between freedom and the tyranny of a corporate new world order. 

Hollis had an exciting video trailer made for the book.

I had always intended to write something about Citizens United (the book) here at The Savory Tort, but Hollis had asked me to wait until he devised a sort of "grand premiere."  I think that ambition fell by the wayside as he dove into law practice, and, I admit, I never followed up.

Hollis is survived by his lovely and loving wife, Dr. Cheryl Wathier, a kind and patient soul the likes of which a Renaissance man needs in a partner.  I was privileged to visit Hollis and Cheryl once in Arizona, and I never imagined that would be the last time I would see him.  Now I pray for strength for Cheryl and the kids.  In memory of Hollis, the family asked for donations to St. Jude's Children's Hospital.  My thanks to Justin Kadich, '14, for apprising me of the sad news.

Confessions of a Gina Raimondo fanboy

R.I. Gov. Gina Raimondo (2017)

Photo by Kenneth C. Zirkel CC BY-SA 4.0

Well maybe there's not much to confess.  Searching this blog, I've ill disguised my affection for the Governor of the smallest American state, Rhode Island, my home of nine and a half years.  So I was thrilled to see Raimondo named as President-Elect Joe Biden's nominee to be the Secretary of Commerce.

A lot of Rhode Islanders are irritated that Raimondo previously denied that she would take the job, issuing the usual politician's disclaimer that her only focus was on Rhode Island.  But I get it.  You have to play these things cool, so if Pop-pop Joe doesn't pick you, you act like you didn't really want it anyway.

The same libertarianism that unites most Americans at the corner of conservative economics and social liberalism, yet seems an intersection where no Democrat or Republican dares to tread, characterizes Rhode Islanders and explains Raimondo's two-term appeal.  She is a social liberal only as much as we need her to be.  Her "Knock It Off" missive during the lockdown (I mentioned at the time) garnered national attention and is said to be one of the reasons she caught the eye of the Biden campaign.  On the civil rights front, she vetoed the first draft of a state "revenge porn" bill that tread too heavily on free speech.

At the same time, she's a fiscal conservative.  A finance aficionado by trade, she founded a venture capital firm and then entered public service as Rhode Island's General Treasurer.  The powers-that-were saddled her with an unfunded pension liability of more than $7bn, no less in the wake of a recession.  That was probably supposed to be a scapegoating when the problem proved intractable; Raimondo turned it into a pathway to the Governorship.  In the aftermath of Rhode Island's massive squandering of economic development funds on a software development firm, Raimondo championed fiscal accountability in seeking public disclosure of the grand jury investigation.

Raimondo is super smart: high school valedictorian, top economics honors at Harvard, a Rhodes Scholarship and Oxford doctorate, and, why not, a Yale law degree for good measure.  Some of those qualifications might smack of lefty elitism, but they come also with solid working-class bona fides and an Italian-immigrant heritage that complements Rhode Island's Federal Hill—the best "little Italy" on the East Coast by quality, if not size, and I've seen, and tasted, them all.  According to Raimondo's official biography (link as long it's still there), her grandfather immigrated from Italy at age 14 with no English; her father, a U.S. Navy veteran and butcher's son, went to college on the GI Bill; and her family suffered loss of livelihood when Bulova outsourced factory jobs and the Rust Belt was born.

For my immediate family, it meant a lot to have had Raimondo leading Rhode Island while our daughter was in grade school.  From the perspective of a parent, desirable role models seemed harder and harder to come by in our dawning age of social-media stars and normalized divisiveness.  I don't know whether the Commerce Department will be where Raimondo makes the most difference.  Certainly I have grave reservations about what President Biden will achieve, even aims to achieve, as talk of bringing back union jobs resonates to my ear as tone deafness to our crisis in American education.  But wherever the chips fall, I'll be in Gina Raimondo's corner.

Bon voyage, Governor.

Legal attacks on lockdown mount; R.I. Governor's time will run out, report warns

Persons entering Rhode Island remain subject to 14-day

quarantine in the present phase 1 of reopening. Photo by
Taber Andrew Bain CC BY 2.0.

A former Rhode Island Supreme Court justice and a libertarian think tank asserted this week that R.I. Governor Gina Raimondo is running out of rope in sustaining her emergency lockdown orders.

Earlier in the pandemic, we law types found ourselves with time on our hands to read up on, and sometimes write about, the legal landscape of emergency powers.  Report 98-505 from the Congressional Research Service (here from the Federation of American Scientists and updated March 23, 2020) and CDC public health emergency guidance (2009, updated 2017) suddenly became popular downloads.  The 50-state compilation of quarantine and isolation laws at the National Conference of State Legislatures was well visited.  Various guides to emergency powers have blossomed since.  Heritage published a "constitutional guide" as early as March.  The Brennan Center updated a 2018 report about three weeks ago.  At Lawfare, Benjamin Della Rocca, Samantha Fry, Masha Simonova, and Jacques Singer-Emery overviewed state authorities the week before last.

Wisconsin Supreme Court chamber (Daderot CC0 1.0)

This week brought news of the Wisconsin Supreme Court decision two days ago, striking down the Wisconsin governor's stay-home order.  Clarity around the scope of the ruling and guidance as to how it should be implemented was woefully lacking from the 4-3 fractured court, and public confidence in the decision was undermined by the participation of a lame duck conservative justice in forming the majority.  Against the backdrop of a state supreme court already badly tarnished by partisan politics, the decision has only aggravated America's White House-fueled ideological in-fighting over coronavirus public policy.

Rhode Island Governor Gina Raimondo

Personally, I've been happy with the leadership of Governor Gina Raimondo in responding to the crisis in my home state, Rhode Island.  But to be fair, I work in Massachusetts, and my job has been relatively secure.  There have been peaceful protests against lockdown in Rhode Island, and there is no doubt that the economic closure is devastating the small-business-heavy economy in the nation's smallest state.

On Wednesday, Robert Flanders, Matthew Fabisch, and Richard MacAdams published a legal analysis of Governor Raimondo's emergency orders.  The report came from the free-market think tank, the Rhode Island Center for Freedom and Prosperity.  The authors are all lawyers; Flanders is a former associate justice of the state supreme court and was once a Republican challenger to U.S. Senator Sheldon Whitehouse.  Flanders wrote a companion editorial for The Providence Journal.  (HT@ Gene Valicenti.)

The takeaway from the report in the news is that the Governor has overstepped her emergency authority and is ripe for a lawsuit.  That's an understandable but unfair oversimplification.  The report is a solid legal analysis that examines the scope of state executive authority from a range of angles, including the statutory framework and constitutional limitations such as takings.  The popular takeaway derives from just one thread of the analysis, if an important one: The Governor's emergency powers must be limited, and a key dimension of those limits is time.

Rhode Island State House (cmh pictures CC BY-NC 2.0)

The report does not purport to adjudicate the Governor's emergency response as wrong or right.  Rather, the authors opine, when the Governor's authority runs up against the reality that exigencies are, by definition, not perpetual, the General Assembly has a responsibility to step up and lead.  That might mean simply extending the Governor's authority to make the kind of spot decisions that will be required for subsequent phases of reopening.  Or the legislature may override executive-ordered closures and force the reopening of the economy.

Saliently, the legislature should take charge of public policy.  The most cumbersome branch of government in its populous operation, the legislature is to be excused in the throes of emergency.  But after enough time has passed, the most democratically responsive branch of government should be able to gather its wits, get on its feet, and make law.  Decisions such as whether K12 schools will reopen in the fall, for example, not just financial shortfalls, should be the subject of fact-gathering legislative hearings right now.

The inevitable logic of this ideal is subject to reproach on grounds that many of our state legislatures in the United States, Congress besides, have become dysfunctionally non-responsive to increasingly severe social and economic problems. This paralysis has many and complicated causes, including corporate capture and unbridled gerrymandering.

In the functionalist reality of our government of separated powers, if one branch abdicates its mantle, the others will fill the vacuum.  Thus, in the absence of legislative leadership, a governor may be expected to carry on with policy-making, and a state supreme court, especially a politicized one, may be expected to push back.  It's in this sense that the pandemic crisis is exposing yet another grave institutional weakness in the infrastructure of American government.

If a legislature remains paralyzed long enough, the people will become antsy.  Among the ultimate remedies for legislators who would shirk their duties, some are more palatable than others (video: Liberate Minnesota protest, April 17, by Unicorn Riot CC BY-NC 3.0).  Once upon a time in Rhode Island, residents took up arms to compel the legislature to expand enfranchisement through a constitutional convention.

Alas, one problem at a time.

It'd Be a Lot Cooler If You Did.Or, Marlan on Psychedelics and Decriminalization

Mary Jane's in Eugene, Oregon, 2017, since closed.  (Rick Obst CC BY 2.0.)

My colleague Dustin Marlan has published Beyond Cannabis: Psychedelic Decriminalization and Social Justice in 23:3 Lewis and Clark Law Review.  Prof. Marlan is a compelling voice in intellectual property scholarship, lately especially, trademark and the right of publicity.  Here he turns his attention to a libertarian priority.  The abstract:

Psychedelics are powerful psychoactive substances which alter consciousness and brain function. Like cannabis, psychedelics have long been considered prohibited Schedule I substances under the Controlled Substances Act of 1970. However, via the powerful psychological experiences they induce, psychedelics are now being shown to be viable therapeutic alternatives in treating depression, substance use disorders, and other mental illnesses, and even to enhance the well-being of healthy individuals. In May 2019, Denver, Colorado became the first city in the country to decriminalize psilocybin (the active compound in “magic mushrooms”) — a potential major shift in the War on Drugs. Ballot initiatives for the decriminalization of psilocybin and similar substances are now reaching voters in other cities and states. What principles might justify this decriminalization — eliminating criminal penalties for, at a minimum, the use and possession — of psilocybin and other psychedelics? This Article provides background on psychedelics and a historic overview of the laws surrounding them. It then considers several potential justifications for decriminalizing psychedelics: (1) medical value; (2) religious freedom; (3) cognitive liberty; and (4) identity politics. Lastly, the Article proposes a reframed justification rooted in principles of social justice.

The article is available on SSRN and from the Lewis & Clark Law Review.  You know, in Oregon.

Dazed and Confused (1993)

Janus-faced about 'Janus': Supreme Court hears major First Amendment labor case, and 'it's complicated'

The U.S. Supreme Court hears oral argument in Janus v. AFSCME (SCOTUSblog) on Monday, February 26.  The problem in a nutshell is the extent to which a public employee can be compelled to associate with a union consistently with the First Amendment freedoms of expression and association.

The Court already held, some years ago, that a public employee cannot be compelled to pay the portion of union dues that supports political activity.  But mandatory payments to support the union in collective bargaining have been upheld upon the logic that employees otherwise would be able to opt out and benefit from union collective bargaining as free-riders, and, ultimately, the union would be decertified for lack of members.  So it’s got to be all in with the union, or no union for anyone.

This is an agonizing problem for a libertarian.  One wishes to protect the right to organize but is loath to compel anyone to do so.  Honoring the latter priority undermines the former.

When I changed jobs in 2011 from the University of Arkansas system to the University of Massachusetts system, I moved from a non-union shop to a union shop.  My first years at UMass, I opted out of the political dues and paid only to be a member of the bargaining unit—“agency,” it’s called.  And I resented having to pay for that. 

Certainly Arkansas was not a bed-of-roses workplace experience.  I had my challenges there and had to spend a good chunk of my personal savings on legal fees.  Now faculty there are fighting to preserve tenure.  I can see where a union might help.

Nevertheless, moving to UMass, I resented being compelled to join the union.  My experience with unions had been that they too often protect people in the workplace who don’t pull their weight, and they prevent people in the workplace who pull more than their weight from being rewarded accordingly.

I have more experience with unions now.  And I was right.  They often protect people who don’t pull their weight, and unionization prevents people who pull more than their weight from being rewarded accordingly.

At the same time, I’ve come to understand that plenty of fault for unions working, or not working, can be laid at the feet of employers, too.  It’s complicated.

I declined to become a union member at first at UMass and sought instead to leverage my own hard work for superior reward.  That didn’t work.  At best, I got into the highest echelons of the contractual raise pool.  We’re talking about a distinction of maybe a percentage point.  I could have gotten that with much less work.  I’ve hardly been able to negotiate my own terms of employment.

To the contrary, like many an employer, the university seems to have a love-hate relationship with the union.  Even while administrators seethe with loathing for their union adversaries, management is unwilling to dance with any other and jealously guards the bargaining table against rivals.  That’s the dirty little secret of public-sector union shops: management and labor are on the same side when it comes to making sure that no one else gets to play the game.  A truly free market, with full information and a healthy balance of labor supply and demand: if such a thing existed, it would be bad news for both sides.  Meanwhile the individual worker gets left on the sidelines.

So unable to make any headway for myself, and upon later experience and observation, I decided to throw in my lot with the labor movement.  Before union membership, my agency dues were $580 for the year in 2016.  That was deducted from my check, even though I was excluded from the bargaining table and stuck with whatever contract concessions someone else decided for me.  Now as a full member of the union, based on my last paycheck, my dues are about $1,285 per year.  So about two-thirds of my union dues go to political activity that I don’t necessarily agree with.

That’s my catch-22.  Membership is the only way to get a seat at the table, and having a seat at the table is the only way to work against abusive employment practices.  The labor market being what it is, there is abuse.  And there are good people in my union who are working hard to fight it.

I’ve been a student of the First Amendment for a long time, and I don’t know what should happen in Janus, whether from a detached scholarly perspective, or for my own best interests.  It rubs me the wrong way being compelled to participate in organized labor and forego my individual economic liberty.  To have my voice heard, I have to let my pocket be picked by political causes I disagree with.

At the same time, the unions are right:  The Janus challenge is about union busting and worker exploitation, not civil liberties and not economic liberty.  In academics, union busting is sure to hasten the end of tenure and the annihilation of academic freedom.  That hardly seems a result that honors the First Amendment.

I admit: I’m Janus-faced about Janus.  But on Monday, I'll be wearing my AFT T-shirt.

 

[UPDATE, Apr. 10, 2021.  Regrettably, my faith in the union was not enough.  The bargain of surrendering my beliefs became untenable.  See, e.g., this post in 2020.]

Pai FCC net neutrality policy steers US wrong way

Today a political cartoon from my brother, Spencer Peltz, in AP Gov at Calvert Hall, where he is student body president.

Probably needless to say, I agree with the sentiment wholeheartedly.  India's Telecom Regulatory Authority is headed wisely in the opposite direction.  Read more at Global Net Neutrality Coalition.  Tiered access, a.k.a. internet censorship, is bad for social liberals and economic conservatives.  The only winner under the Pai FCC plan is corporate oligarchy, and that's not free-market capitalism.  Oh, there're other winners, too: people and commercial enterprise every else in the world, India included.  Guess whom that leaves as losers?

Let's put democracy out of its misery

Democracy ain’t all that. 

That must be what Reince Priebus has been thinking this year.  The possibility has been on the mind also of author and professor Jason Brennan, of Georgetown University.  Brennan is touring New England this week to talk about his new book, Against Democracy.  I knew of Brennan from one of his earlier works touting my faith, Libertarianism: What Everyone Needs to Know.  This week I had the good fortune to meet him in Providence, thanks to the Rhode Island Federalist Society.  On my commute this morning, I heard that he’ll be on WGBH’s excellent Innovation Hub this week. 

Brennan’s thesis in short is that when we talk about how best to select our leaders in human society, democracy might not be the endpoint and high point of human achievement.  He offered a simple thought experiment:  Imagine a professor instructs students that instead of grading exams on the usual A-F merit system, each person in the class will get the same grade, an average of everyone’s performance.  No surprise, students don’t study and perform poorly.  The incentive for each individual to do well is diminished along with the risk that poor preparation will be reflected in any one person’s grade.

Brennan explains that the same dynamic is at work in democracy.  If any one person’s vote is vastly unlikely to have an impact on the general election, then the individual has only weak, and largely symbolic or emotional, incentives to become informed and vote intelligently.  Surveys of how well informed voters are sadly support this thesis, with voters performing only about as well as chance would predict in answering simple multiple choice questions about politics.

What’s better than democracy?  Brennan isn’t shilling for any model, but provided a compelling and fair tour of the possibilities.  He pointed out for one example that simple gambling—imagine betting on the next President of the United States, if the model could be translated into politics—is a rather good predictor of outcome.  The gambler has skin in the game the way a voter does not, so has a proportionate incentive to be well informed.  Other potential models would jettison one person, one vote in ways that would reward better informed voters with greater influence.  I was reminded of my “oligarchy of the intelligentsia” phase when I studied politics at university.

A model I found enchanting, maybe because of its cool name, is “the Simulated Oracle.”  Imagine that along with a person’s vote, we collect also some basic demographic data and even administer a short quiz on political know-how.  With large enough data sets, we could employ the magic of statistics to control variables and correct for self-serving biases.  Factors such as race and gender, the community I live in, and my wealth can be predicted to evidence self-serving biases in my voting behavior, not necessarily the vote that a more altruistic me might cast.  The Simulated Oracle can control variables and correct for irrational or unfair biases, transforming my vote into a hypothetical ideal, the vote my better self would cast.  Weight everyone’s votes accordingly, and we might get a result that compensates for individual rent-seeking.

The mythology of democracy is emotively powerful in our society today, shaping how we define ourselves and our ideals.  But the U.S. Constitution—in, for examples, life tenure in the Article III courts, a republican representation system, and the original method of selecting senators—was designed to temper the risky excesses of pure democracy.  Moreover, the framers intended the Constitution to be amended.  There is no reason to think that progress means evolution toward pure direct democracy.  Remember Ross Perot suggesting instant home voting on contemporary issues?  Today that sounds like a good way to run Dancing with the Stars, and not so good a way to make foreign policy, tax policy, or really to do anything important.

Rather, we are engaged, or should be engaged, in an ongoing process of perfecting the organization of human society.  It’s not so strange to imagine that democracy as we know it now is just one stop on our journey.

Brennan is awash with fascinating data about the American electorate, and I’ll share just one item.  Turns out that people who self-identify with political third parties, such as libertarianism, are among our most informed voters. 

Am I blushing?