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The Market for Union Representation: An Information Deficit or Rational Behavior?

The National Labor Relations Act provides the legal framework for private-sector workers to choose collective representation. The National Labor Relations Board (“NLRB”) supervises this process and relies on an election campaign model that is premised on the assumption that competition between the union and the employer will generate sufficient information to enable workers to reach a rational decision. In his recent article, Information and the Market for Union Representation, Professor Matthew Bodie asserts the NLRB’s model fails to ensure the inclusion of sufficient relevant information. Offering a “purchase of services” paradigm as an alternative way to understand the decision to choose or refrain from choosing to join a union, Bodie conceives the representation election as a collective economic decision rather than the end result of a political campaign. In order for the market for union representation to function satisfactorily, adequate knowledge is required. Bodie states that this market is afflicted by a number of difficulties, including information asymmetry, inverse employer incentives, absence of competition among unions, and the lack of public confidence in labor unions. Information deficiencies impair employees’ capacity to act rationally. Professor Bodie tenders a provisional solution—mandatory disclosure aimed at boosting public confidence in the market for union representation.

Based on insights derived from mandatory disclosure requirements within the nation’s securities market, Bodie concedes that additional disclosures may “create costs and . . . change market dynamics in inefficient ways.” Despite these welcome caveats, Bodie’s proposal suffers from a number of shortcomings. First, unions may resist disclosure initiatives unless they are paired with a card-check certification program, which defeats the goal of enabling workers to make rational decisions about union membership. Second, Bodie’s conception of capture focuses on employer capture and ignores the problem of capture by outside interest groups aligned with union hierarchs. Finally, Bodie’s mistaken conclusion that unions secure better conditions for workers leads to a faulty assessment of the problem of free riding. This response addresses each problem in turn.

Parents as Hubs

In her provocative article The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, Professor Melissa Murray offers a much-needed corrective to the view that families are “autonomous islands” and argues that the law should recognize the networks of care provided by nonparental caregivers. I wholeheartedly agree with Professor Murray that the law should support families in providing care. I am also deeply sympathetic to the claim that family law is overly reliant on binary opposites—here, the mutually exclusive categories of parent and legal stranger—that do not capture the complex reality of family life. And I applaud Professor Murray’s initiation of a conversation about these concerns.

To advance that conversation, I want to engage with a central aspect of Professor Murray’s argument: the nature of the recognition she argues that the law should provide for nonparental caregivers. Two basic paradigms seem likely. First, we might understand recognition to be simply cognizance of and greater attention to the care provided by nonparents. Once we recognize the network of caregivers, it may be possible for the law to support that network in a variety of ways. By contrast, we might understand recognition to mean direct legal protection of the relationship between a nonparental caregiver and a family.

Now We Are Six: The Emerging Roberts Court

The Roberts Court has now completed its sixth year. This benchmark invites comparisons with earlier Courts. Earl Warren was appointed as Chief Justice in 1953. It was not until nine years later, in 1962, that the Warren Court fully emerged. That was the year in which Felix Frankfurter left the Court, Arthur Goldberg took his place, and the balance on the Court tipped to the more liberal justices. Opinions from the mid sixties—Gideon v. Wainwright (1963) and Reynolds v. Sims (1964) come to mind—mark the Warren Court at flood tide.

William Rehnquist was confirmed as Chief Justice in 1986. Again, it was about nine years, in 1995, before the Rehnquist Court emerged full blown. Rehnquist, so often a lone dissenter before 1986, now had company in the likes of Antonin Scalia and Clarence Thomas. Thus, in the mid nineties, the Rehnquist Court was making its distinctive mark on the Court’s jurisprudence. Illustrative are United States v. Lopez (1995), the first time in sixty years that the Court had declared an act of Congress to be beyond that body’s power to regulate commerce, and Agostini v. Felton (1997), one of a series of cases in which the increasingly conservative Court began dismantling the wall of separation between church and state. Now comes the Roberts Court. Until the appointment of John Roberts as Chief Justice, there had been no vacancy on the Court for eleven years. Then a succession of events changed the face of the Court. Since 2005, we have seen the departure of four justices—Rehnquist, O’Connor, Souter, and Stevens—and the arrival of four new justices—Roberts, Alito, Sotomayor, and Kagan. It has now been six years since Chief Justice Roberts took his seat. Recalling the stories of the Warren and Rehnquist Courts, are we two thirds of the way through another nine year cycle? Is the Roberts Court beginning to take shape? What can we say about this Court?

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