Tag Archives: torts

FUN WITH COLLECTIVE BARGAINING

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Kay Steiger, guest-blogging (with Alyssa) at Matt Yglesias’ site, considers sexism in “trade professions” and after pointing out that jobs like hair dressing aren’t counted as such precisely because women do them, suggests that

What would help is first what these truck mechanics Harding points to are already doing, mentoring young women in non-traditional fields. Secondly, unions that represent those industries need to not only be free of sexism themselves, but aggressively pursue lawsuits that would discourage sexual harassment. This is happening with some larger trade unions already, but it’s not as wide as it should be.

I think this really sells short the potential for trade unions to take on discrimination. Any kind of organization with the resources can file a lawsuit – or individuals or groups can do it with no organization at all. In some cases, like the Dukes suit against Wal-Mart (largest class action suit ever in this country), that can contribute greatly to leveraging pressure on a company. But workers with a union can change the behavior of their employer in a slew of other ways. That includes negotiating with them.

Union workers can and do win binding contracts obligating companies to take on unequal opportunity by creating training programs, by collaborating with community leaders and/ or non-profits, by submitting to oversight by workers, clergy, politicians, or whoever else to judge progress, to change work rules or job descriptions that create needless barriers for people who could otherwise do the job – and in any number of other ways. And these workers can enforce these commitments, as well as the company’s legal obligation not to discriminate, through collective action and through a grievance process that moves faster, cheaper, and more accessibly than a lawsuit. The limits are defined by power on the shop floor and nationally or internationally in the industry.

As Thomas Geoghegan wrote last year in his book See You in Court,

a big change has been the way we have moved from contract to tort. For most working Americans, the kind of people I represent, this accounts for the biggest change in the way the law now impacts their lives. In the 1950s and 1960s, up to 35 percent of workers, especially men, were covered by collective bargaining agreements…In the last thirty years, there has been a loss of contract rights – to a job, a pension, or even health care – unlike that in any other developed country. It is really a new legal regime that many Americans experience as infuriating, without being able to express that fury in an appropriate way.

Now the missed opportunities within substantial chunks of the labor movement to link arms as part of movements for sexual and racial inequality in the twentieth century is not unrelated to the steep decline in union power and union membership. But those workers Kay is talking about, who have unions, have an arsenal at their disposal to attack discrimination in the workplace – not only through contract language of course, but also through the kinds of action, client pressure, media strategies, and such that play part in winning recognition and winning contracts – without depending on the prospects of a lawsuit.

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THE DO-SOMETHING-BAD CONGRESS

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Here’s ostensibly uber-media-savvy Chuck Schumer making the case that the problem with Republicans in Congress is that they don’t do anything:

“When they (Republicans) get up and read their litany, it’s things that only a few narrow special interests care about, like a bankruptcy bill or class-action reform,” said Sen. Charles Schumer, D-N.Y., the chairman of the Democratic Senatorial Campaign Committee. “Anything major that affects average Americans and makes their lives better, they haven’t been able to get done, and I think people know that.”

Granted, people like for Congress to do things. So when your opponents run the Congress, it makes sense to accuse them of not doing things. But with this Congress especially, which has done all kinds of no good very bad things, it’s worth actually pointing out how bad those things are.

Schumer is doing exactly the opposite. He’s taking two awful pieces of legislation passed by our right-wing Congress at the bidding of right-wing special interests and at the expense of everybody else and he’s suggesting that no one other than those special interests are affected. Conservatives have passed bills to make it harder for working Americans to lift themselves out of bankruptcy or to get just compensation for grievous corporate abuses, and Chuck Schumer doesn’t find it worthwhile to make the case to the American people that these laws are bad – rather than distracting – for all of us.

This is the same kind of silly rhetoric we hear all the time from national spokespeople for the Democratic party about how gay rights and women’s rights aren’t the kinds of issues that actually affect people. It’s not an approach that seems to have sold too many people on the principled vision of the Democratic Party as of yet.

THE WEEK IN COMPASSIONATE CONSERVATISM

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Well, the Republican Majority has finally left DC for another one of those extended vacations that most of them like to impugn when French workers take them. They didn’t go home nearly soon enough though.

Wednesday night – by two votes – the House passed CAFTA, voting to accelerate the corporate-driven race to the bottom in working standards. As Mark Weisbrot reminds us:

CAFTA will increase some barriers to trade while lowering others. One of the barriers it increases is on patented pharmaceutical drugs. This is the most costly form of protectionism in the world today. The benefits from free trade in these goods are much appreciated by the millions of Americans who cross the Canadian or Mexican border to get their prescription drugs. But CAFTA will make it more difficult for countries like Guatemala to get access to affordable medicines…Over the last 30 years the typical (median) wage in the United States has hardly grown — only about 9 percent. Productivity — output per employee — has grown by 82 percent over the same period…Over the next decade, the dollar will fall further and our trade deficit will shrink. Measured in non-dollar currencies, the value of U.S. imports is expected to decline over the next decade. This means that CAFTA countries are making costly concessions for a prize that most likely won’t be there.

House Democrats did a much better job of bucking the “Washington Consensus” than their counterparts in the Senate, a quarter of whom backed the bill. That only fifteen House Democrats voted with Thomas Friedman on a “free trade” bill is a hopeful sign of how much that consensus has fractured in the past decade. Those fifteen votes, sadly, seem to have made all the difference Wednesday. David Sirota provides a helpful list of the eleven Democrats in Congress who voted not just for CAFTA but for the Bankruptcy and “Class Action Fairness” bills as well, and some much-needed skepticism about claims that they acted out of electoral necessity.

As if CAFTA wasn’t bad enough, yesterday the Senate passed up a bill protecting detainees’ human rights and passed a bill curtailing victims’ rights to a day in court against the gun industry. And an Energy Bill which, as John Podesta observes,

gives away our tax dollars to energy companies already making record profits. The challenges we face in moving to more secure and sustainable energy use are large. We need a bold energy policy for the United States. Sadly, even the modest commitment to increase the use of renewable sources for electricity or language acknowledging the danger of climate change did not survive in the final bill. We must continue to challenge the Bush administration and Congress to get serious about decreasing the oil consumption of the United States and combating global warming. The energy bill the Senate will vote on today ignores those challenges.

And the Senate voted to extend the PATRIOT Act, though in a slightly more constitution-friendly version than that passed by the House. As Lisa Graves of the ACLU said yesterday:

Although the ACLU was unable to endorse the final bill, it contains some provisions mindful of the Bill of Rights, and does not include such broad and unnecessary powers like administrative subpoenas.

Small victories.

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FAIR questions the factuality of John Stossel’s hatchet job against John Edwards on 20/20 last week, and the justice of giving him the space to fulminate from the right each week without any counter-balance from the right:

How much of the increase in C-sections is due to medical judgment, rather than fear of lawsuits? Stossel doesn’t address the question. Dr. Luis Sanchez-Ramos, an obstetrics professor at the University of Florida, noted in the British Medical Journal (2/12/94) that “in Brazil and Mexico, where malpractice is not a problem, the caesarean section rate is still high.” Sanchez-Ramos suggested that profit may be another motive driving C-sections, pointing out that rates are higher in for-profit hospitals and with patients who have good health insurance.

But Stossel focused on lawsuits as the core problem: “So are women today suffering more pain, even risking their lives on unnecessary surgery, partly because lawyers like John Edwards scared doctors?” It’s a complex question, depending among other issues on how much of the surgery is actually “unnecessary.” But Stossel’s answer just assumes that trial lawyers are the villains: “Well, maybe all Edwards’ cases were good ones, but the fearful atmosphere that lawsuits create has far-reaching consequences.” That we should see malpractice suits as making doctors “fearful” rather than “careful” is something that the ABC journalist asserts rather than explains.

Of course, political candidates are fair game for criticism. But given Stossel’s politics, it’s unlikely that he will be doing a similar attack on George W. Bush or Dick Cheney this campaign season– certainly not one that fits in with their opponents’ talking points so well. (When Edwards was picked by Kerry, the Republican National Committee’s website headlined its response, “Who Is John Edwards? A Disingenuous, Unaccomplished Liberal And Friend To Personal Injury Trial Lawyers.”) When ABC’s parent company Disney refused to allow its Miramax subsidiary to distribute Michael Moore’s film “Fahrenheit 9/11,” company CEO Michael Eisner offered this rationale (5/5/04): “We just didn’t want to be in the middle of a politically oriented film during an election year.” So why does ABC air one-sided political commentary during an election year?

When I watched part of Stossel’s commentary on TV, I thought to myself “Maybe we should let both sides bring medical experts to argue their case to the jury. Except – we already do.” Conservatives are always claiming that their opposition to judicial decisions which limit the power of their constituencies is based in an abiding faith in democracy and a distrust of unelected judges. But in the same breath they argue for tort reform in order to protect those same constituencies from regulation by juries. And they gleefully marshall technocratic arguments to suggest that a sampling of “the people” shouldn’t be trusted to decide such cases. They’re stuck making that argument because for all the talk about Americans hating lawyers and malpractice suits, it isn’t trial lawyers who decide cases and determine damages. It’s a (not fully representative) sampling of the American people. So conservatives’ concern isn’t about democracy. It’s about power.