Sixth Circuit Research Articles

Constitutionally Inadequate Treatment for Psychiatric Inmates

In Richmond v. Huq , 872 F.3d 355 (6th Cir. 2017), the United States Court of Appeals for the Sixth Circuit considered whether summary judgment for the defendants was appropriate in a case alleging that the psychiatric care provided to the plaintiff in jail amounted to cruel and unusual punishment.

The Extraterritorial Reach of Tribal Court Criminal Jurisdiction

Conflicts over the jurisdiction between tribal, state, and federal courts arise regularly due to the nature of overlapping sovereignty. The Supreme Court accepts an average of almost three Indian law cases a year and has decided more than twenty Indian law cases with a jurisdictional focus since 1978. As tribes become wealthier, they are increasingly acquiring new lands outside of their existing reservations. This expansion of territory generates new border zones where state and tribal interests converge. The Sixth Circuit recently decided the first federal appellate case dealing with the inherent criminal powers of tribal court jurisdiction over the conduct of Indians on tribal land that is located outside of the tribe’s reservation. The unanimous decision of the Sixth Circuit panel upheld the tribe’s inherent right to extraterritorial criminal jurisdiction, but read into the opinion some limiting caveats that originate from civil, and not criminal, jurisdictional principles. This paper reads the Sixth Circuit’s decision in Kelsey v. Pope as the first in what is surely to be a myriad of conflicts over the extraterritorial jurisdiction of tribal courts. It suggests that while the Sixth Circuit’s approach to tribal sovereignty is generally in keeping with Supreme Court precedent, the court erred by conflating criminal with civil authority and thus over limited its discussion of the inherent powers of tribal courts. Instead the paper suggests that a more consistent reading of the inherent extraterritorial criminal powers of Indian tribes should support jurisdiction over both tribal members and tribal territory unless Congress has expressly circumscribed tribal authority. This broader understanding of extraterritorial jurisdiction is not only simpler to apply, but finds better support in Supreme Court precedent than the convoluted reasoning adopted by the Sixth Circuit.

Federal Circuit Second Amendment Developments 2017–2018

This Article surveys federal circuit court of appeals cases on the Second Amendment from August 1, 2017, through July 31, 2018. The decisions of the last year continue the post-Heller approach of upholding all provisions of the Gun Control Act of 1968 and of the National Firearms Act of 1934. As usual, the prohibited persons cases were easy under Heller and post-Heller circuit doctrine. However, one case was too glib, and earned a dissent: the Sixth Circuit’s decision upholding a lifetime gun ban for a misdemeanor committed decades previously. Restrictions on firearms commerce were easy as applied to unlicensed persons willfully selling arms to sketchy characters. But Fifth Circuit’s decision upholding the ban on handgun sales by federally licensed firearms dealers to residents of consenting other states had questionable reasoning. Far worse was the superficial analysis and shoddy history in the Ninth Circuit’s opinion upholding a county’s ban on all new gun stores. Nullification of the right to bear arms remains a continuing problem in a few states. In the Second Circuit, treating the Second Amendment as a second-class right would actually be an improvement from the current jurisprudence. There, New York City has been allowed to continue its mean-spirited policy of preventing handgun owners in Staten Island from practicing gun safety in New Jersey, prohibiting residents of the Bronx from participating in target competitions in Connecticut, and forbidding New York City residents to take their registered handguns from one home to another. Meanwhile, the Supreme Court failed to act when Ninth Circuit allowed California to nullify the right to bear arms. Hawaii’s similar nullification has been cast into doubt by a recent panel opinion from the Ninth Circuit, but whether that decision will survive en banc is uncertain. Also uncertain in the long term is California’s effort to confiscate standard magazines holding more than ten rounds. For the present, the confiscation is still enjoined. Although residents of the fifty States may not pay much attention to U.S. Territories, the citizens of the Territories are American citizens, and their rights are just as important as other citizens’. Accordingly, the final demise of the racial ban, handgun ban, and self-defense ban in the Commonwealth of the Northern Mariana Islands is a welcome development.

Challenging the Punitiveness of “New-Generation” Sorn Laws

Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This article examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto–based litigation would affect the viability of SORN vis-à-vis current and future potential registrants.

Religion as Key to Protecting Transgender Employees From Discrimination

Whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against transgender employees is uncertain. Federal appellate courts either disagree or are undecided on this issue, and the last two presidential administrations have taken conflicting positions as well. Disagreement centers on whether Title VII’s proscription against discrimination “because of . . . sex” is broad enough to encompass transgender discrimination. Some courts define sex narrowly to mean only one’s biological sex assigned at birth, whereas others construe it more expansively to include gender identity. After decades of silence, the Supreme Court has agreed to take a first look at this issue during its 2019-2020 term. This Article assesses whether Title VII’s protections can be extended to transgender employees without wading into the debate over the statutory meaning of sex, by instead analogizing transgenderism to religious conversion. A few district courts, the EEOC, and most recently the Sixth Circuit have made this argument, reasoning that because discrimination against an employee who converts from one religion to another constitutes discrimination “because of . . . religion,” discrimination against an employee who transitions from one sex to the other must likewise constitute discrimination “because of . . . sex.” This Article scrutinizes this analogy, questioning whether sex and religion are comparable protected traits, whether transgenderism and religious conversion are comparable processes, and whether Title VII actually prohibits discrimination against religious converts. The conversion analogy not only holds up to this scrutiny but emerges stronger as a result. It thus offers a path forward to protect transgender employees from discrimination that sidesteps the thorny issues about the meaning of sex that have plagued transgender discrimination jurisprudence in the past.

Challenging the Punitiveness of 'New-Generation' SORN Laws

Sex offender registration and notification (SORN) laws have been in effect nationwide since the 1990s, and publicly available registries today contain information on hundreds of thousands of individuals. To date, most courts, including the Supreme Court in 2003, have concluded that the laws are regulatory, not punitive, in nature, allowing them to be applied retroactively consistent with the Ex Post Facto Clause. Recently, however, several state supreme courts, as well as the Sixth Circuit Court of Appeals, addressing challenges lodged against new-generation SORN laws of a considerably more onerous and expansive character, have granted relief, concluding that the laws are punitive in effect. This symposium contribution examines these decisions, which are distinct not only for their results, but also for the courts’ decidedly more critical scrutiny of the justifications, purposes, and efficacy of SORN laws. The implications of the latter development in particular could well lay the groundwork for a broader challenge against the laws, including one sounding in substantive due process, which unlike ex post facto-based litigation would affect the viability of SORN vis-a-vis current and future potential registrants.

Lecture: The Rule of Reason in the Post-Actavis World

Though known more as U.S. President and Supreme Court Chief Justice, William Howard Taft played an important role in the development of antitrust law. As Sixth Circuit judge, his ruling in the Addyston Pipe case can be linked to modern antitrust law, including the Supreme Court’s 2013 decision in FTC v. Actavis on drug patent settlements. This essay draws lessons from Addyston Pipe for these settlements, explains how courts today apply the Rule of Reason, and explores the analysis of settlements after Actavis.

William Howard Taft, the Origin of the Rule of Reason, and the Actavis Challenge

The origin of the Rule of Reason can be traced to the notable decision of United States v. Addyston Pipe & Steel Co. (1898), which was written by William Howard Taft during his tenure on the Sixth Circuit Court of Appeals. There, Judge Taft distinguished between restraints that were mainly or entirely designed to restrain trade and those that are ancillary to a procompetitive main purpose. That fundamental distinction, drawn at the dawn of Sherman Act jurisprudence, forms the basis of the Rule of Reason that currently informs antitrust case law. This Article describes the context in which the Rule of Reason was debated and defended both in public discourse by President and Professor Taft and in the landmark Supreme Court decisions of Standard Oil Co. of New Jersey v. United States (1911) and United States v. American Tobacco Co.(1911). This Article then follows the development of the Rule of Reason through Board of Trade of City of Chicago v. United States (1918) to the modern era of antitrust jurisprudence. Finally, this Article describes the application of the Rule of Reason to reverse-payment settlements in the pharmaceutical sector, one of the most challenging contemporary antitrust issues. It does so through a discussion of the Supreme Court case FTC v. Actavis (2013) and the Third Circuit’s application of Actavis in In re Wellbutrin Xl Antitrust Litig. Indirect Purchaser Class (2017). This Article provided the foundation for, and introduction to, the remarks of Professor Michael A. Carrier and Mr. Saul Morgenstern that were delivered at the New York State Bar Association Antitrust Law Section’s William Howard Taft Lecture on September 28, 2017. Those remarks are reprinted in article form in this volume of the Columbia Business Law Review.

Ordinary Contract Principles

The United States Supreme Court purported to apply ordinary contract principles its decision reversing the Sixth Circuit Court of Appeals M&G Polymers USA v. Tackett . The Sixth Circuit had held that plaintiffs, retired employees of M&G, were entitled to lifetime healthcare benefits under their union's agreement with M&G. According to the Supreme Court, the Sixth Circuit wrongly relied on a false set of inferences established International Union v. Yard-Man, Inc. to find that in the absence of extrinsic evidence to the contrary, the provisions of [the collective bargaining agreement] indicated an intent to vest retirees with lifetime The Supreme Court therefore remanded the case for a determination under ordinary contract principles, and without the benefit of the what the parties’ intentions were with respect to the duration of retiree healthcare benefits.This Article documents the various errors of the Supreme Court applying ordinary contract principles. In doing so, the Article suggests how courts should proceed contract cases like M&G. I will argue that ordinary contract principles should have led the Court, not to abandon what the Supreme Court called the Yard-Man inferences, but to treat them as probative, along with all other evidence concerning the duration of healthcare benefits. Because of the Supreme Court's mistakes, its attempt to clear up the Sixth Circuit's treatment of the duration of retiree healthcare benefits undoubtedly failed. More litigation is likely inevitable.

Obstructing by Omission: The Troubling Expansion of the Criminal Offense of Obstructing the IRS and How DOJ Internal Policy Has Played a Role

A majority of circuits hold that it is possible to be convicted of corruptly obstructing the administration of the Internal Revenue laws even if there is no pending IRS proceeding to obstruct. Even more strikingly, the Second Circuit recently held that making an omission is sufficient to obstruct the IRS, which means that it is a federal felony to corruptly not maintain records or to corruptly not provide records to an accountant. Despite the obvious potential problems with these issues, there is very little recent scholarship addressing them. In June, the Supreme Court granted certiorari to consider these issues. This article examines the circuit split over whether 26 U.S.C. § 7212(a), interfering with the administration of the Internal Revenue laws, requires that the defendant obstructed a known IRS proceeding. Only the Sixth Circuit has imposed such a requirement, and even that court has twice reversed itself on the issue. Further, the Department of Justice limits charges under § 7212(a) to conduct that is prototypically “obstructive.” These policy limitations have caused only prototypically obstructive cases to reach the courts, and have therefore ensured that constitutional overbreadth challenges to the statute necessarily fail. Notwithstanding the majority of opinions on the issue, this article explains that the logical reading of § 7212(a) requires that, to obstruct the IRS, the defendant must have been aware of a pending IRS proceeding. Without this requirement, other crimes carefully delineated in the federal tax code would become superfluous, and individuals would be subject to a vast new array of previously uncontemplated criminal tax prosecutions. Moreover, this limitation is consistent with the Supreme Court’s interpretation of the nearly-identical general obstruction of justice statute. Unless § 7212(a) is limited to conduct that obstructs a pending IRS action, the statute will be unconstitutionally overbroad.

Enhancing protection for vulnerable waters.

Governments worldwide do not adequately protect their limited freshwater systems and therefore place freshwater functions and attendant ecosystem services at risk. The best available scientific evidence compels enhanced protections for freshwater systems, especially for impermanent streams and wetlands outside of floodplains that are particularly vulnerable to alteration or destruction. New approaches to freshwater sustainability - implemented through scientifically informed adaptive management - are required to protect freshwater systems through periods of changing societal needs. One such approach introduced in the US in 2015 is the Clean Water Rule, which clarified the jurisdictional scope for federally protected waters. However, within hours of its implementation litigants convinced the US Court of Appeals for the Sixth Circuit to stay the rule, and the subsequently elected administration has now placed it under review for potential revision or rescission. Regardless of its outcome at the federal level, policy and management discussions initiated by the propagation of this rare rulemaking event have potential far-reaching implications at all levels of government across the US and worldwide. At this timely juncture, we provide a scientific rationale and three policy options for all levels of government to meaningfully enhance protection of these vulnerable waters. A fourth option, a 'do-nothing' approach, is wholly inconsistent with the well-established scientific evidence of the importance of these vulnerable waters.

Brief of Amici Curiae Empirical Fourth Amendment Scholars in Support of Petitioner in Carpenter vs. United States

The Court has recognized that public expectations of privacy are relevant to the Fourth Amendment. A growing body of social science research shows that a majority of people: (1) do not knowingly convey their location information to cell phone providers; and (2) believe that law enforcement needs to obtain, and ought to obtain, a search warrant before gathering this information. These studies addressed a range of surveilled information (cell site location and GPS tracking) and conduct (by cell phone providers and by law enforcement). On average across all the studies more than 60% of survey respondents (and often upwards of 70-80%) emphatically asserted a privacy interest in the information contained on or emitted from their cell phones. In relative terms, these privacy interests are as strong, or stronger, than paradigmatic cases where the Court has required law enforcement officials to first obtain a warrant. These empirical data, detailed below, expressly undercut the Sixth Circuit’s reliance on the third party doctrine in deciding this case, and affirmatively support a finding that warrantless searches of this information violate the Fourth Amendment. This Court should employ these empirical data - a critical tool that informs the proper scope and functioning of the Fourth Amendment - and reverse the decision below.

Appropriation at Augusta: An Illustration of the Battle Over the Publicity Right and the First Amendment

Each of the core intellectual-property rights — patent, copyright, and trademark — plays a critical role in society, serves a unique doctrinal function, and enjoys a well-understood justification. Patent encourages innovation in the sciences, copyright promotes creation in the arts, and trademark ensures fairness in the markets. In this sense, the lesser-known but frequently litigated state-law publicity right is vastly different. Although it too plays a critical role in society and serves a unique doctrinal function, the right lacks any compelling justification, varies in scope across jurisdictions, and wreaks havoc among judges, litigants, and legislators. Nowhere is the difference more apparent than in publicity-rights cases which pin an athlete against an artist. In a typical publicity-rights case involving a dispute between an athlete and an artist, the athlete sues the artist for depicting his or her name, image, or likeness, the artist raises a number of defenses, and the jury (or more often the court on summary judgment) evaluates them. The so-called “First Amendment defense” advances a practically intriguing and intellectually stimulating argument: Effectively, the defense concedes that the artist’s work infringes the athlete’s publicity right, contends that his or her work constitutes First Amendment-protected speech or expression, and concludes that he is immune from liability. The necessary inference in this line of reasoning, of course, is that First Amendment-protected speech or expression immunizes an otherwise-infringing work from liability. The problem, however, is that it is unclear whether the inference is in fact true. To find out if it is, courts overt time developed numerous legal tests, each attempting to strike the appropriate balance between the two rights. The high-profile Tiger Woods litigation provides an excellent illustration. In that case, Tiger, through his closely held marketing company, sued now-(in)famous artist Rick Rush for depicting Tiger’s likeness in Rush’s “The Masters of Augusta,” which he painted following Tiger’s record-breaking eighteen-stroke victory at the 1997 Masters Tournament. Rush, in response, raised the First Amendment defense. The district court granted summary judgment to Tiger, the Sixth Circuit reversed, and the Court denied certiorari. Although it reached the correct result, the Sixth Circuit’s opinion was hardly a model for clarity. Its opinion failed to navigate the law surrounding the claims, left everyone to discern for themselves the precedential value of the opinion going forward, and perpetuated the above-outlined issues between the publicity right and First Amendment. This need not be the case and the solution is simple: The publicity right should be available to an athlete only in cases where a reasonable person would mistakenly believe that the athlete endorsed a third-party’s product or service. This far-more-limited view of the right — one akin to trademark’s false-endorsement theory of liability grounded in economic-harm and unjust-enrichment theories — would provide a sturdier normative framework through which to understand the right, limiting in the first instance an athlete's ability to bring publicity-rights claims against an artist and lessening the need for uncertain, unpredictable, and sometimes even unworkable tests in this critical area of the law.

Indian Sovereignty, General Federal Laws, and the Canons of Construction: An Overview and Update

This article focuses on the application within Indian country of federal regulatory typically dealing with labor relations, employment, health, the environment, and other social and economic issues (i.e., general federal laws or GFLs), and their impact on Indian Nation governments and tribal enterprises. This article takes the position that a GFL, just like specialized Indian legislation and all potentially affecting the ancient rights and sovereignty of Indian Nations, should be subjected to the rules of interpretation known as the Indian law of construction. The U.S. Court of Appeals for the Ninth Circuit in Donovan v. Coeur d'Alene Tribal Farm (1985) (Coeur d'Alene) adopted a troubling and contrary rule of interpretation. The article also touches on a range of deeper issues concerning the relative power of Congress as compared to administrative agencies and the U.S. Supreme Court as compared to lower federal courts (including the U.S. Court of Appeals for the Ninth Circuit). These issues raise concerns going well beyond the field of American Indian law. They touch on constitutional law, the separation of powers, administrative law, and labor law. The article updates the author's 2007 Oregon Law Review and 2008 Michigan State Law Review articles, which criticized various aspects of the Coeur d'Alene doctrine. It reviews some key points about the Ninth Circuit's remarkable three-judge panel opinion in Coeur d'Alene, which (for more than thirty years now) has frustrated Indian country lawyers and out-muscled the Supreme Court itself in influencing other lower-court rulings on how to interpret GFLs in relation to Indian country. Coeur d'Alene has effectively overruled (in many federal circuits and for many GFLs) the weight of more than a century of Supreme Court jurisprudence on the Indian law canons of construction. The article also reviews some aspects of the notorious San Manuel cases. In that litigation, the National Labor Relations Board (NLRB or Board), in 2004, and the U.S. Court of Appeals for the District of Columbia Circuit, in 2007, deployed the Coeur d'Alene doctrine to extend the National Labor Relations Act (NLRA) to on-reservation employment by tribal government-owned gaming enterprises, even though that has never been authorized or intended by Congress. That specific issue of federal labor law, and the broader dispute over Coeur d'Alene, emerged again in 2015 with appeals to the Sixth and Tenth Circuits over application of the NLRA to tribal casinos. Those appeals were resolved by three important decisions discussed in Part V of this article: one by the NLRB (effectively mooting the Tenth Circuit appeal) and two by the Sixth Circuit. Following the Introduction (Part I), Part II of the article discusses the classical canons of construction governing Indian law, and contrasts them with the Coeur d'Alene doctrine which has flourished in the lower federal courts. Part III highlights the stunning degree of irony (not to mention outright defiance of the Supreme Court) in the lower courts' treatment of the Supreme Court's 1960 decision in Federal Power Commission v. Tuscarora Indian Nation. Part IV discusses continuing struggles over the Coeur d'Alene doctrine in the lower federal courts. Part V discusses the 2015 decisions, and where things have gone from there. Part VI concludes the article.

Omnicare v. Indiana State District Council and Its Rational Basis Test for Allowing for Opinion Statements to Be a Misleading Fact or Omission Under Section 11 of the Securities Act of 1933

This article examines when statements in a registration statement, couched as opinion, can and cannot be considered to be misstatements of material fact that could lead to liability under Section 11 (and potentially other sections) of the Securities Act. The rest of this paper is formatted as follows. We review the Omnicare case, followed by the key cases in the Second, Third, Ninth, and Sixth Circuit Courts of Appeals. The Second, Third, and Ninth Circuits have all required that, in order for there to be an actionable claim under Section 11, the plaintiff must plead not only that the statement or omission was false, but also that the defendant had subjective knowledge that its opinion was false. The Sixth Circuit, although later reversed by the Supreme Court, applied a strict liability interpretation of Section 11 and required only that the fact or omission be false or misleading. The split decisions among the circuits may be the reason that the Supreme Court granted certiorari. Then, we explain the implications of these decisions to future registrants and to professionals preparing opinions that are to be included in registration statements. This article is important to future registrants and opining professionals because of their liability implications. We conclude with the assumption that future cases will decide how to apply the new rational basis test created by the Supreme Court in interpreting when an opinion statement becomes a misstatement of material fact, or leads to an omission that renders a registration statement false or misleading in violation of Section 11.

It's All Downhill from Here: How the Nation's Dispute with Clean Water Act Jurisdiction Is Solved

What makes the United States one of the most prosperous and safest nations in the modern world? Perhaps it is the durable economy, the strong military force, or the Constitutional protections. What most Americans take for granted, however, is something people in many nations base their entire lives around: safe, clean water. Promulgated in 1972, the original Clean Water Act has been opposed and amended over the course of forty years. No provision, however, has been as hotly contested as the § 404 program for “dredge and fill” permits. Specifically, this section led to divisions on what constitutes “water” that is subject to Clean Water Act jurisdiction and what does not. Hoping to solve the confusion once and for all, the EPA’s “Clean Water Rule” was published in 2015. The Rule, however, was immediately met with litigation and was hit with a nationwide stay by the Sixth Circuit. This article is the first to collectively address the pending arguments against the Rule while arguing that the adoption of Justice Kennedy’s significant nexus test was the best option. When the Sixth Circuit makes its decision on the merits, the decision will likely make it to the Supreme Court. The Court should find that contrary to many allegations, the Rule does not violate the Administrative Procedure Act, the Commerce Clause, or the Clear Statement Canon. Further, by applying the 2016 Hawkes Co. ruling, the Court should be able to ease the minds of the Rule’s opponents while confirming the Rule on the merits.

Every Dog Has His Day: Why a Uniform Code for State Disability Education Law Will Circumvent Unjust Hurdles Inherent to the Current Structure

Education has traditionally been controlled by the state rather than federal government, but disability issues in schools are usually adjudicated in federal courts under the Americans with Disabilities Act (ADA) and the Individuals with Disabilities Education Act (IDEA). Although these Acts were enacted with admirable goals, they can lead to limited and procedurally complicated relief for students with disabilities. In Fry v. Napoleon Cmty. Schs., the Sixth Circuit held that an elementary school student with cerebral palsy who was denied use of her service dog at school should exhaust her administrative remedies under the IDEA despite the fact that she did not seek relief under that statute, nor was the monetary relief she sought available through that channel. This would necessitate additional years and thousands of dollars to litigate the dispute. This case exemplifies a need for simpler avenues for students battling discrimination in school settings. Because of states’ traditional control over educational matters and strong public policy in favor of protecting children with disabilities, state legislatures should enact statutes obligating schools to provide accommodations for students with disabilities and prohibiting discrimination against such students. These statutes would give students the option of seeking relief in state courts, leading to quicker, less complicated, and less expensive litigation. The most effective method for widespread reform would be to establish a uniform code, similar to the Uniform Commercial Code and the Model Penal Code. This article provides an example statute to address the substantive issue in Fry to demonstrate how a more state-driven approach could be beneficial. The article advocates for the establishment of a uniform code that aggregates statutes similar to this model.

Substantial Similarity: Kohus Got it Right

This Note is organized as follows. Part I discusses the historical development of the substantial similarity inquiry and its role in a Plaintiff’s prima facie case of copyright infringement. Part II evaluates more recent developments in the substantial similarity inquiry. Part III argues that the various standards that lower courts have developed are themselves substantially similar to each other. This analysis is in line with the Sixth Circuit’s decision in Kohus. Although largely ignored by the scholarly community, the Sixth Circuit’s decision in Kohus got it right.

The Contested Origins and Future of ‘Right to Work’ Laws

18 | International Union Rights | 24/2 FOCUS | UNITED STATES The Contested Origins and Future of ‘Right to Work’ Laws Everything about so-called ‘right to work’ is contested. Its history, purpose, promoters, effects, even its name all remain unsettled. Contrary to how it may sound to one not steeped in the nuances of American labour history or law, ‘right to work’ is not a reference to the right to one’s job or the right to employment, or a rebuke to the norm of American at-will employment. Rather, ‘right to work’ means the right of a worker to be represented by a union, but not pay any union dues or fees. Though it is a relatively obscure issue, especially now that private sector labour density is at its lowest since joining a union became a protected right in 1935, it has become a central tenet of American conservatism and one of the primary battlefields of contemporary labour law. The US is today at a point where ‘right to work’ is quickly becoming the norm. States have been permitted to pass ‘right to work’ laws since the TaftHartley Act amended the Wagner Act in 1947. At the time of writing, a majority of states (28) have adopted such laws. Most recently, states long-known as union strongholds in the industrial Midwest, such as Indiana, Wisconsin, and Michigan, have passed ‘right to work’ laws. In Kentucky, individual counties began passing ‘right to work’ laws, and the Sixth Circuit Court of Appeals has recently held that the laws were permissible1. The story of the development of ‘right to work’ is one of divergent beginnings. On the one hand, there was a string of early railroad cases, where AfricanAmerican workers challenged the closed shop as a means of gaining rights on the job, arguing that the Constitution guaranteed black workers the right to be full members of majority white unions. On the other hand, a more cynical push for ‘right to work’ was developed by business and racist interests, arguing that the Constitution gave white workers the right not to be a member of a union with black workers. These two strands – represented by contemporaries Ed Teague and Vance Muse – both provide the legal beginnings of ‘right to work’, but it is this latter strain that has persisted. A Conservative ‘Magna Carta’ The beginnings of the concept of ‘right to work’ can be traced to the American Civil War, and in the labour battles that followed. But the modern proponents of ‘right to work’ – chief among them, The National Right to Work Committee and Legal Defense Foundation (NRTW) – trace the concept to an editorial by the Dallas newspaperman William Ruggles on Labor Day 1941. Entitled ‘Magna Carta’, Ruggles’ editorial consciously re-appropriated labour’s use of the phrase to describe the Clayton Antitrust Act of 1914, which declared that ‘the labor of a human being is not a commodity or article of commerce’, and thereby opened the door for workers to legally organise)2. Ruggles’ editorial began with a suggested 22nd Amendment to the Constitution, enshrining the concept of right-to-work in the nation’s founding document. Published as Europe and Asia were crumbling under the weight of World War II, Ruggles explained that the right-to-work issue ‘is a greater crisis than the international situation, for on its solution may depend our ability to face the dark international future’3. Ruggles and the NRTW have spread the idea that right-to-work ‘both as a legal principle and a title’ was Ruggles’s ‘brainchild’, and that it spread organically among disaffected workers. However, decades earlier, one can find articles with titles such as ‘Right to Work’ and ‘Right to Work: The Story of the Non-striking Miner’4. These appeared for decades prior to Ruggles’ editorial, always posing the fight as one between pro-union and anti-union workers, with employers ostensibly on the sidelines open to whatever the workers decide. By 1930, management organisations, such as the Merchants’ and Manufacturers’ Association had an ‘Open Shop Labor Temple’ and ‘free employment bureau,’ which ‘guarantees to the independent worker the right to work… guarantees to the employer the right to employ...

The Parade of Horribles Lives: Schuette V. Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary

In Washington v. Seattle School District No. 1, 458 U.S. 457 (1982), Justice Powell in dissent expressed fear that the majority’s logic could lead to absurd results—results very much like those arrived at in the Sixth Circuit’s recent decision in the Schuette v. Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight of Equality By Any Means Necessary. The majority in Washington pooh-poohed that fear, claiming that the “horribles paraded by the dissent … are entirely unrelated to this case.” Maybe the majority should have paid more attention to Justice Powell.