Mass. high court supports AG in climate change investigation of Exxon Mobil

I'm not a civ pro cognoscente, but a ruling of the Massachusetts high court on long-arm jurisdiction today caught my attention because it relates to the effort to hold Big Oil accountable for climate change.  The case is Exxon Mobil Corp. v. Attorney General, No. SJC-12376 (Mass. Apr. 13, 2018).

Mass. A.G. Maura Healey
(Edahlpr CC BY-SA 4.0)

Since 2016, Massachusetts Attorney General Maura Healey has been investigating Exxon Mobil Corp. under the state consumer protection law--the same Mass. Gen. L. chapter 93A that powerfully enhances conventional civil actions in tort in the commonwealth.  The AG tracks the investigation blow by blow online.  The AG opened the investigation after the 2015 revelation that Exxon might have known about the risk of climate change as early as the 1970s, as reported by Scientific American.

As part of the investigation, "the Attorney General issued a civil investigative demand (C.I.D.) to Exxon, seeking documents and information relating to Exxon's knowledge of and activities related to climate change."  Exxon resisted the CID on personal jurisdiction grounds.  Exxon simultaneously sought declaratory relief in federal court in Texas (No. 4:16-CV-469).  A year ago the case was transferred to New York (No. 1:17-cv-02301), and two weeks ago, Healy prevailed (S.D.N.Y. Mar. 29, 2018).  Exxon is incorporated in New Jersey and headquartered in Texas.

The analysis for specific personal jurisdiction in an investigation is not the same as in a lawsuit, the court explained.  Exxon denied "suit-related" activity in Massachusetts.  But "the investigatory context requires that we broaden our analysis," the court wrote, to consider the scope of investigation regardless of whether any wrongdoing has yet been uncovered.

Exxon franchise in Durham, N.C.
(Ildar Sagdejev CC BY-SA 4.0)

"The Attorney General's investigation concerns climate change caused by manmade greenhouse gas emissions--a distinctly modern threat that grows more serious with time, and the effects of which are already being felt in Massachusetts."  More than 300 Exxon and Mobil franchises operate in Massachusetts.  Considering the corporation's close supervision of franchisees, the fuel stations "represent[] Exxon's 'purposeful and successful solicitation of business from residents of the Commonwealth.'"  The franchise agreements moreover require Exxon sign-off of advertising, so the court rejected Exxon's efforts to distance the corporation from consumer sales.

The Exxon investigation in Massachusetts unfolds against a backdrop of burgeoning legal attacks across the country.  The much-watched Juliana v. United States (Children's Trust) persists in the District of Oregon upon a favorable ruling in the Ninth Circuit in March (884 F.3d 830).  If state attorneys general make any headway under consumer protection law, I hope that any settlement serves more clearly to remedy climate change than the tobacco master settlement agreement has served to combat smoking-related health effects (see, e.g., Jones & Silvestri, 2010).

In re United States, 884 F.3d 830 (9th Cir. 2018)

884 F.3d 830

In re United States, 884 F.3d 830 (9th Cir. 2018)

Popular singer's 'right to be forgotten' outweighs free speech in Italian case over archival video and biting commentary

Because Manchester City FC might need it after today's derby match, let's consider the right to be forgotten.

As an aspect of European, and increasingly global, data protection law, "the right to be forgotten," or right to erasure, unsettles the tummies of American media advocates.  The right to erasure runs up against the presumptive rule of U.S. First Amendment law that there can be no punishment for the republication of truthful information lawfully obtained.  Read more about that here (predating implementation of the EU General Data Protection Regulation).  The Italian Court of Cassation has issued a potentially important decision at the intersection of the right to erasure and the freedom of expression.  

Hat tip @TheItalianLawJournal.  For a few months to come, or until a better translation comes to light, I'm parking a very rough Google Translate rendition of the ruling here in PDF.  The translations that follow here are mine, refining the Google Translate rendering. The original court decision can be found here.

Antonello Venditti by Angela_Anji (CC BY-NC-SA 2.0)

The case stemmed from a TMZ-style confrontation by an RAI-1 "Live Life" («La vita in diretta») crew of Italian singer Antonello Venditti (Facebook) in 2000.  I've not seen the video, but Venditti apparently resisted the interrogators with sufficient gruffness that he earned his way onto the program's 2005 "ranking of the most obnoxious and grumpy characters in the entertainment world."  The story occasioned rebroadcast of the 2000 segment, along with commentary mocking his diminished fame in the intervening years.  Antonello took offense and sued, claiming "a right to be forgotten" attached to the 2000 video. 

Of peculiar resonance with current events in the United States, the Italian court took note of a German right-to-erasure case about "an affair in which a German citizen, who held a major political and business position in Germany, had requested the erasure of information from the web relating to an episode of collusion with Russian crime dating back several years earlier, republished several years after."  The Court of Justice of the EU ruled that "the public's interest in information prevailed over the individual's interest in oblivion."  However, the Italian court observed, the ruling resulted from a fact-intensive inquiry.

The court must engage with "the search for the right balance between the interest of Internet users in information and the fundamental rights of the person," the Italian court explained.  "Therefore, the editor of a newspaper that stores in its historical archive on the internet the news, making it available to a potentially unlimited number of people, is required to prevent, through the dissemination of even remote facts, without any meaningful and current public interest, possible harm to the right to be forgotten by the people who were involved."

The freedom of expression must yield to the right to erasure, the court held, upon analysis according to five factors:

1. the contribution made by the dissemination of the image or of the news to a matter of public interest;
2. the actual and current interest in the dissemination of the image or news (for reasons of justice, police, or protection of the rights and liberties of others, or for scientific, educational, or cultural purposes), to be considered absent in case of prevalence of a popular interest [italics added; in original, divulgativo: I'm not sure how to translate that and don't think "popular" or "informed" is right], or, worse, merely economic or commercial interest of the subject that spreads the news or the image; 
3. the high degree of notoriety of the subject represented, for the economic or political reality of the country;
4. the methods used, for the particular position held in public life, and, in particular, to obtain and give information, which must be truthful (because it is drawn from reliable sources, and with a diligent research work), disseminated in ways that are not excessive for information purposes, in the interest of the public, and free from insinuations or personal considerations, so as to highlight an exclusive objective interest in the new dissemination;
5. the preventive information about the publication or transmission of the news or image at a distance of time, in order to allow the interested party the right of reply before its disclosure to the general public.

Applying its multi-factor test, the court decided that RAI's interest in the rebroadcast video segment was outweighed by Antonello's privacy and data protection rights.  The court below had erred by finding Antonello's fame dispositive.  Reminding one of the analysis of Elmer Gertz in U.S. defamation lore, the court held that Antonello's large public following "certainly" did "not invest[ him] with a primary role in national public life."  Moreover, RAI's purpose, five years on, lacked merit. The court found it "undeniable that the reiterated broadcast ... had [the] unique purpose of allowing the inclusion of the singer ... in a ranking of ... 'the most obnoxious and grumpy of the entertainment world,' invented by the same broadcaster, allowing, in this way, the satisfaction of an interest that is exclusively informative [again, divulgativo], for commercial purposes, and for the television operator's audience."  The broadcaster's derogatory comments about Antonello's fame in 2005 aggravated the offense, the court added.  

The court also rejected "satire" as a defense.  The representation of Antonello was not "paradoxical, surreal and hyperbolic critique," but referred to "true fact," "clearly directed to a mere and unjustified denigration of the artist."  The broadcaster sought to use the 2000 video to represent Antonello in 2005 as "a singer, for years, in decline."

This case is the very stuff of American media advocates' nightmares.  Newspapers decry the right to erasure as a threat to online archives—though representations in archives, as archives, are readily factually distinguishable from the Antonello case.  The more realistic threat would be to the "TMZ"/"Talk Soup" format of entertainment media, or even the clever uses of archival video that have become the staple of commentary on The Daily Show with Trevor Noah and Last Week with John Oliver.  Certainly under a rule such as the Italian court employed, broadcasters, even straight news broadcasters, would have to take more care with their use of B roll.  

I've advocated in favor of evolving U.S. privacy law toward European data protection norms.  But the Italian court went too far here, lending credence to American nay-saying.  I fault the court's analysis of Antonello as, in U.S. terms, a "private figure."  The lower court got it right in finding Antonello's public status dispositive relative to this RAI commentary.  It's especially telling and troubling that as to the satire argument—the RAI program seems on the mild side of the Talk Soup genre—the court faulted RAI commenters for the truth in their observation of Antonello's waning fame.  The court set up the Italian judiciary to be a "super editor" of popular media, an arbiter of taste.  American courts appropriately struggle with newsworthiness determinations in privacy law because they do not want that job.

SCOTUS 'Microsoft' privacy case likely moot, R+C blog reports

It looks like we won't get an answer from the U.S. Supreme Court in the Microsoft privacy case.  For the Data + Privacy Security Insider at Robinson + Cole, Kathleen Porter and Connor Duffy report that the Government and Microsoft agree that the case was mooted by the CLOUD Act, signed into law in March as part of omnibus spending legislation. 

The CLOUD Act gives the Government the authority to compel Microsoft to produce the sought-after data, whether stored at home or abroad, and the Government already has attained a warrant under the new law.  Microsoft's reported statement indicates that the company's position was exonerated insofar as it maintained that the legislature was the appropriate branch of government in which to resolve the matter.

I wrote about Microsoft and the pending Carpenter case for the winter 2017 newsletter of the Privacy, Cybersecurity & Digital Rights Committee of the ABA Section of International Law (published just last month, March 2018).

A la alien tort, German court engages business, human rights case of Pakistan fast fashion tragedy

In 2012, fire ravaged a textile factory in western Karachi, killing 260 and injuring 32.  The fire occurred only hours after a shoe factory fire in Lahore killed scores, and two months before the Dhaka fire in Bangladesh killed more than 100 and injured 200.  The Karachi fire is now the subject of civil litigation in Germany, taking advantage of a federal law that does what human rights advocates would like to see happen—but probably won't—under the U.S. alien tort statute, 28 U.S.C. § 1350.

These recurring factory tragedies have short half-lives in western media, owing to time-honored if callously objective journalistic measures of relevance (e.g., Jacoba Urist in The Atlantic).  But the connection between these deaths and our daily lives in the west runs much deeper.  These deaths represent just one adverse consequence of fast fashion, the global commercial trend that gives us retail clothing at an affordable cost that dramatically undervalues human and environmental externalities.  My friend and colleague Nick Anguelov (Twitter) speaks powerfully on this subject and wrote about it in his 2015 book, The Dirty Side of the Garment Industry (CRC Press, Amazon) (see also Nick at UIA, on this blog).

Claudia Müller-Hoff and Carolijn Terwindt, advocates with the European Center for Constitutional and Human Rights, recently highlighted the German case for the Oxford Human Rights Hub and Law of Nations blogs.  As they explain, a decision is now anticipated on claims in Dortmund by four plaintiffs against KiK, a clothing retailer that was the principal customer of the Karachi factory.  Forensic architects in the U.K., Goldsmiths at the University of London, produced an unsettling and damning video that aided the plaintiff's case, published online two months ago.

A meaningful "win" for plaintiffs came once already in the court's preliminary ruling to admit the case under a German federal law, adopted in December 2016, the "National Action Plan on Business and Human Rights."  The law represented implementation in the EU of the U.N. Guiding Principles on Business and Human Rights, which are, in turn, an instrument of the corporate social responsibility movement and under the umbrella of the U.N. Sustainable Development Goals.

The German law, as reported by Müller-Hoff and Terwindt, states: “Anyone who considers that his or her rights have been infringed in Germany by the actions of an enterprise can make claims before the civil courts.”  The law is heralded as an important advancement for human rights protection in the vein of universal jurisdiction, though it reasonably does require a jurisdictional connection to Germany. 

The KiK case has a parallel in the U.S. alien tort case currently pending in the U.S. Supreme Court, Jesner v. Arab Bank (SCOTUSblog).  Jesner was heard in oral argument in October; see this excellent analysis by Amy Howe.  The dispute in Jesner focuses principally on whether the alien tort statute applies to corporations.  Meant to give U.S. courts jurisdiction over violations of international law, probably to protect commerce, the statute dates to the Judiciary Act of 1789, when corporations and international law were both very different from what they are today.

The U.S. Supreme Court has evidenced reluctance to construe the statute as broadly as its text might suggest in contemporary terms.  Previous case law established that the statute cannot reach a "foreign cubed" case—foreign plaintiff, foreign defendant, and foreign soil—but myriad questions remain.  Since the 1980s, human rights advocates have championed the alien tort statute as an appropriate mechanism to protect human rights abroad.  The WNYC podcast More Perfect did an outstanding episode in October on the history of the statute: Enemy of Mankind.  (Amy Howe also wrote a good summary here.)  For the skeptical view of Jesner's and the statute's viability in this vein, see an excellent op-ed by Professor Samuel Estreicher in the New York Law Journal in January.

There has been some speculation that the Court might duck the corporate liability question in Jesner by ruling instead that the case is foreign cubed.  And there lies the interesting parallel to KiK.  The plaintiffs in Jesner seek to hold Amman-based Arab Bank liable for financing terrorism in Israel and Palestine.  To satisfy the "touch and concern"-the-United-States jurisdictional test, plaintiffs-petitioners rest their case on a rather thin reed: that a U.S. office of the bank had a hand in laundering funds for Hamas.  In Germany, the only link to German jurisdiction is KiK's role as principal buyer from the Pakistani factory. It's hard to imagine such a connection supporting liability in conventional tort analysis in American law; think of Apple's more-moral-than-legal responsibility for working conditions at Chinese Foxconn.

The German law certainly steps out in liability exposure in a way that American law does not permit.  If the alien tort statute is not an appropriate vehicle to effect human rights accountability in the American private sector, and subsequent legislation is not forthcoming, the United States will be increasingly divergent from the EU in relying on market forces alone to ensure corporate social responsibility.  And as Shankar Vedantam of The Hidden Brain reported on NPR, the free market might not cut it.

[UPDATE: On April 24, 2018, the U.S. Supreme Court held, in Jesner v. Arab Bank, 5-4, that foreign corporations may not be held liable under the U.S. Alien Tort Statute.]

Mass. high court allows generic-drug consumer to sue Big Pharma for reckless labeling

Just more than a week ago, the Massachusetts Supreme Judicial Court (SJC) issued an adroit and important decision on drug manufacturer liability.  In a decision worthy of other states’ attention, the SJC allowed a common law recklessness claim for failure to warn, unobstructed by federal preemption.  The case is Rafferty v. Merck & Co., No. SJC-12347 (Mar. 16, 2018) (PDF), per Chief Justice Ralph Gants.

It was in the last season of Boston Legal in 2008 (s5e02) that Alan Shore (James Spader), maybe my favorite TV lawyer, took on Big Pharma, right on the heels of victory over Big Tobacco.  In real life, Big Pharma has long been about the business of avoiding tort liability.  When labeling defects have been alleged, the Big Pharma defense has found traction in federal preemption, owing to the FDA’s close supervision of labeling under the Food, Drug, and Cosmetic Act, 21 U.S.C. §§ 301, et seq.

One thread of this debate involves the relative responsibilities of brand-name and generic manufacturers.  In 2011, in PLIVA, Inc. v. Mensing, 564 U.S. 604, the U.S. Supreme Court, 5-4, rejected liability for a generic drug maker accused of failure to warn of side effects when the label matched that of the brand-name equivalent.

In the SJC last week, the plaintiff also was injured taking a generic drug, but sought to hold the brand-name maker accountable in negligence and consumer protection, accusing the maker of failure to warn on the label that the generic provider copied.  The plaintiff took the generic drug finasteride, in lieu of defendant Merck’s brand-name drug Proscar, to treat an enlarged prostate.  The label warned of sexual dysfunction as a temporary side effect, but the plaintiff experienced persistent dysfunction.  The plaintiff alleged that Merck was aware of the risk from several studies and had changed the warning label accordingly in some foreign markets, including Italy, Sweden, and the United Kingdom.

Significantly, then, the plaintiff admittedly complained against a defendant whose drug he did not take.  But the plaintiff traced causation to Merck, because FDA regulation of generic drugs compelled the generic maker to copy the Merck label, and PLIVA precluded liability for the generic maker.  The trial court dismissed, holding that brand-name-maker liability to a patient who did not take the maker’s drug also would “disturb the balance struck” by statute and regulation for the approval of generic drugs.

The SJC regarded the problem as one of duty.  Typically, the court explained, a manufacturer owes a duty of care only to consumers of the manufacturer’s own products.  The First Circuit upheld that logic in a 1983 case under Massachusetts law, Carrier v. Riddell, Inc., 721 F.2d 867.  The court, per then-Circuit Judge Stephen Breyer, denied recovery to a high school football player who blamed a helmet defect for his severe spinal injury.  He had not used the defendant-manufacturer’s helmet, but teammates had.  He alleged that had the defendant properly labeled its helmets, he would have been informed properly about his own.  The SJC further analogized the problem to the effort to hold responsible for a shooting an earlier-in-time actor accused of failing to secure the firearm.  The key to this duty analysis, the court explained, is the foreseeability of a plaintiff-victim—reminiscent of Judge Cardozo’s classic “orbit of duty” analysis in Palsgraf.

Duty in the drug liability problem, the SJC reasoned, is not the same as the product liability analysis in Carrier.  Rather, consistently with the federal regulatory scheme, Merck knows that generic manufacturers will be compelled to rely on its labeling.  Merck therefore has control over the generic label, and duty follows control.  One might say that the consumers of the generic drug are therefore foreseeable victims, for duty purposes, or that the chain of proximate causation runs intact through the intermediary generic maker, because the intermediary lacks control over the label.  Like Palsgraf itself, the case demonstrates the fluid interchangeability of duty and causation.

However, the court further reasoned, negligence, like strict liability, might be too low a liability threshold.  Shifting the liability of generic consumers on to brand-name makers adds to the cost of drug research and development in a way that might interfere with the legislative-regulatory scheme.  Under PLIVA, the brand-name maker could not share joint liability with the generic maker.  At the same time, allowing the brand-name maker wholly to escape liability would allow an injured plaintiff no recovery under any circumstances.  A balance may be struck, the court concluded, when the plaintiff can prove recklessness, or more, intent, on the part of the brand-name maker.

The court wrote: “We have nevertheless consistently recognized that there is a certain core duty—a certain irreducible minimum duty of care, owed to all persons—that as a matter of public policy cannot be abrogated: that is, the duty not to intentionally or recklessly cause harm to others.”  The court analogized to the duty of care owed by defendants in other exceptional areas of Massachusetts tort law: landowner to trespasser, defamation defendant to public figure, bailee to bailor, and athletes and coaches to competitors.

Otherwise put, the court maintained the essential balance of tort law upon its four fundamental elements, duty, breach, proximate cause, and injury.  The extension of liability to a defendant-manufacturer who did not actually make the injurious product depressed the thresholds for duty and causation.  To maintain balance, the requisite standard of breach is amplified to recklessness or intent.  Physical injury remains constant. 

Chief Justice Gants’s opinion in Rafferty is insightful and masterful.  It takes account of the greater endeavor of tort law to define civil wrongs, while balancing the corrective role of the judiciary with the policy-making role of the legislative and executive branches, and also striking a balance in federalism between tort accountability in the states and market regulation under the Commerce Clause.  At the same time, the decision recognizes how these balances are struck across the body of tort law in areas that usually seem only distantly related, from premises liability to reputational harm to sports.  This would be one for the casebooks, if casebooks were still a thing.

City not liable for bullying that resulted in child's quadriplegia, Mass. supreme court holds (and note on infantilization of faculty in higher ed)

The Massachusetts Supreme Judicial Court (SJC) affirmed application of the Massachusetts Torts Claims Act (MTCA) to protect the City of Lynn, north of Boston, from liability in a tragic bullying incident that resulted in the permanent paralysis of the victim, a fourth grader.  The case is Corimer v. Lynn, No. SJC-12323 (Feb. 27, 2018).

The boy's mother had reported bullying and harassment of her son on "multiple occasions" in the 2007-08 school year.  Ultimately bullies pushed the boy down stairs, resulting in damage to his spinal cord and in quadriplegia.

The 1978 MTCA waives sovereign immunity, but a public actor may be held liable for the tort or violence of a third party only if the public actor "originally caused" the "harmful consequences."  Mass. G. L. c. 258, § 10 (j).  The courts have struggled to interpret that language, but have, as the SJC restated the rule, looked for "an affirmative act that materially contributed to creating a condition or situation that resulted in [plaintiff's] injuries."  A failure to act is distinguished.

The school left the bullies in class in proximity to the plaintiff, and we may assume arguendo that the school was negligent in failing to protect the plaintiff.  Even so, those failures were "'too remote as a matter of law'" to represent material contribution to the plaintiff's injuries.  In essence, then the "originally caused" standard seems to effect a causation-at-law analysis heightened above even the stringent inquiry invoked upon an intervening criminal actor.  On the same basis, the court rejected ancillary plaintiff theories predicated on negligent hiring, supervision, and retention of school staff.

The SJC acknowledged "that bullying is a serious issue" comprising "the emotional pain of day-to-day harassment" and sometimes, as here, "horrific physical consequences."  "[T]he elementary school could have and should have done more to protect [the plaintiff]."  Nevertheless, the operation of the MTCA is textbook, furthering the "public policy [of] some reasonable limits to governmental liability in order for taxpayers to avoid a potentially catastrophic financial burden."

Allow me a tangential observation about bullying policy:  

Many workplace entities, private and public, and including my own, are busily about the business of formulating "anti-bullying" policies.  At least in the academic context, I find these efforts nothing less than an end-run of contract, tenure, and academic freedom, calculated to suppress dissent and vigorous debate.  This SJC case indirectly illustrates the problem.  

Bullying is a concept derived from the K12 environment.  In the adult workplace—especially in the academic workplace, where the very job is the exercise of free expression—bullying is co-extensive with harassment, discrimination, tort, and crime.  All of those were present in Corimer, harassment even before the child was physically injured.  There is no need for a separate policy purportedly to enforce civility (as if such a thing even were possible) among adults.  Any effort to create such a policy is nothing more than an authoritarian perversion of modish terminology—on campus, the infantilization of the faculty—and a disservice to children who truly are bullied in school.

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.]