The Market for Union Services: Reframing the Debate

What is union representation? Is it a banding together of employees for mutual aid and protection? Or is it the decision by a group of employees to contract with a provider of negotiation services? And what, then, is the union representation election? A laboratory experiment, a rough-and-tumble election, or something else entirely?

At the center of my article, Information and the Market for Union Representation, is a new conception of the union representation election. My many thanks to Catherine Fisk, Harry Hutchison, and Jeff Hirsch for their thoughtful and thought-provoking essays in response to the article. This Essay is a brief reply to their efforts, in hopes that it is just the beginning of a much more extended conversation about the way we conceive of and regulate union representation.

Traditionally, labor law has characterized the election as a laboratory in which the “uninhibited desires” of employees can be distilled or as a political campaign in which two sides vie for victory. These metaphors, however, are more misleading than instructive. Instead of the enforced sterility of the laboratory or the competitive hurly-burly of an election, a better approach is to see the election as a decision whether or not to purchase union representation services. Because the union is selling a collective good, an election provides a means for determining the wishes of the majority. But framing the decision as an election does not change the underlying dynamic—namely, employees are deciding whether or not to pay a particular union to represent them in collective bargaining.

Although the commentators all have different responses to this “purchase-of-services” paradigm, none of them argue that the laboratory conditions model or the political campaign model should remain ensconced as the appropriate framework. Moreover, all three seem to agree on the importance of the information to the representation election process. However, they diverge in their concerns about the policy implication of this new approach. Because the article focused on establishing both the new approach and the information deficiencies that the new approach illuminates, I did not spend much time on the policy implications. But since the commentators have brought up a number of fascinating possibilities, I would like to devote the substance of this brief Essay to the policy implications they raise.

Schrödinger’s Cross: The Quantum Mechanics of the Establishment Clause

Perhaps the most famous character in modern physics is Schrödinger’s cat, an unfortunate feline trapped in a box alongside a flask containing deadly poison that may or may not have been released. Thanks to the wonders of quantum mechanics, the cat is both alive and dead—”mixed or smeared out in equal parts”—until the box is opened, at which point the act of observation causes its state to collapse into either life or death.

Far away in the Mojave Desert, the “life” of a six-foot-tall cross is disputed: it is either a religious symbol or it is not. Like the cat, it has spent much of its life (or non-life) in a box that makes direct observation impossible. Is the cross, like the cat, both alive and dead? And does opening the box—either metaphorically or otherwise—cause it to become one or the other? This Essay argues that recent forays into “constitutional physics” may have over-emphasized the role of box-opening judges, and thereby elided the cat’s predicament and the relationship between legal and social reality.

The Persistence of Boundaries: A Reply to Rosen-Zvi and Fisher

For those who have studied the blurry distinction between the civil law and the criminal law, it is natural to consider jettisoning the procedural divide between the two. Almost none of the literature on the subject, though, describes how the two bodies of law could be merged, or even takes the stance that they should be merged. Rather, scholars have tended to look for new standards or tests to help place a sanction within one of the two existing categories, to enhance the procedural protections available in certain civil proceedings, or to propose a new additional category for hybrid sanctions.

Professors Issachar Rosen-Zvi and Talia Fisher make a valuable contribution to the discussion by finally advancing a plausible way to dispense with the criminal-civil procedural bifurcation. They propose making procedural protections contingent solely upon the severity of the sanction and upon the symmetry (or lack thereof) between the adversarial parties in the proceeding. This approach eliminates the need to draw false distinctions between nearly identical sanctions, to divine a legislature’s motivation, or to apply procedural safeguards that are either excessively high or dangerously low. But the authors’ attempt to erase boundaries ends up erecting new ones, which are perhaps equally arbitrary and dysfunctional.

Professors Rosen-Zvi and Fisher acknowledge that their proposed procedural model is not a finished product, so in this brief reply, I hope to direct their attention and others’ to a few areas that warrant closer examination.