6,464 research outputs found
The Right to Strike under the United States Constitution: Theory, Practice, and Possible Implications for Canada
No full textAnswering critics of the Canadian Supreme Court's judgment in B.C. Health, the author argues that the Court laid the foundation for a principled and durable doctrine protecting constitutional labour rights, one that goes directly to the heart of the matter — the inequality of workers’ power in the employment relation. In the author’s view, two paths could lead from B.C. Health to the recognition of Charter protec- tion for a right to strike: one that treats the right as an accessory to col- lective bargaining, and one that upholds the right directly on the basis of the Charter values of equality and participation. The author supports the latter approach, contending that constitutional rights should be defined in relation to fundamental values, in a way that is not contingent on time-bound or fact-sensitive assessments about the role of strikes within a particular collective bargaining regime. Although a Charter right to strike may involve the courts in difficult choices about when to defer to legislative policy decisions, and courts may lack the institutional capac- ity to deal effectively with labour law issues, the author points out that judges can look to ILO standards for expert guidance. Noting that the U.S. experience in this area might be of considerable use to Canadians, the author concludes by providing an overview of American case law concerning a constitutional right to strike.Peer reviewe
Mathematical modelling of unsteady problems in thin aerofoil theory
No full textThe de-icing of aircraft wings by the injection of fluid through a slot in the leading edge of the wing is analysed. A review of current de-icing methods is presented and the semi-infinite slot-injection equation derived, which is a singular partial integro-differential equation. The Stefan condition is used to close the system. A discretisation of the equation is presented and the subsequent numerical results are analysed. The model is then revised to account for the retraction of the ice layer away from the slot. An asymptotic result for the thin ice layers is also presented.The problem of describing the motion of a thin, flexible membrane fixed at both ends (a 'sail') is then considered. The steady sail is analysed for the case of an inextensible sail and previous work on this topic is extended by using a discretisation of the singular integro-differential equation that is pertinent to the later analysis of the unsteady sail. An asymptotic expression for the eigenvalues of the system, defined as the values of the tension parameter for which the sail generates zero lift, is also presented. The problem is then extended to that of an extensible sail and numerical results are presented for both the sail with excess length and the membrane without slack.The case where the angle of incidence of the sail to the free stream is a prescribed function of time is then analysed. Previous work on this subject is extended to include the extensible sail and numerical results are presented. A linear stability analysis is then undertaken for both the extensible and elastic sails; the resulting quadratic eigenvalue problem is solved numerically and is in agreement with the numerical experiments.The trailing edge of the membrane is now permitted to move freely and thus the motion of a 'flag' is analysed. The inclusion of bending stiffness is found to be crucial to the stability properties of the flag. The steady equation of motion is numerically approximated for both a hinged flag and a flag that is clamped at the leading edge. The unsteady flag equation is then discretised and numerical results are presented. A linear stability analysis is performed, the conclusions of which are consistent with the numerical approximations of the unsteady flag equation
Letter from James Martin to W.H. Pope concerning land claims
No full textLetter from James Martin to W.H. Pope concerning false land claims by Luis Archibeque from the Pueblo of San Felip
How American Workers Lost the Right to Strike, and Other Tales
No full textAs a veteran labor scholar once said, if you want to know where the corpses are buried in labor law, look for the of course statements in court opinions. This essay traces the historical origins of five such of course statements, each of which has had a devastating impact on the American labor movement. The five statements are: (1) Workers have no right of self-defense against employers that commit unfair labor practices (NLRB v. Fansteel Metallurgical Corporation); (2) Employers enjoy the right permanently to replace economic strikers (NLRB v. Mackay Radio & Telegraph Company); (3) The National Labor Relations Board has no power to deter unfair labor practices (Consolidated Edison Company v. NLRB); (4) Employers may exclude union organizers from their property (Lechmere, Inc. v. NLRB); (5) Employers may close operations out of spite against workers who choose to unionize (Textile Workers Union v. Darlington Manufacturing Company). The essay argues that in each of the five cases, the Court revived Lochner-era constitutional doctrines - supposedly defunct since the switch in time that saved nine in 1937 - and applied them to cut back on statutory labor rights. Although the five statements were not considered especially dangerous at the time, their impact has since been magnified by social and economic change. Taken together, they may account for a substantial proportion of the decline in the American labor movement. As in the pre-New Deal period, then, judges have deprived workers of the rights to organize and strike based on constitutional concerns. This time, however, they have avoided the forthright constitutional reasoning of the pre-1937 period, thereby insulating their rulings against changes in constitutional jurisprudence.Peer reviewe
International differences in the timeliness, conservatism, and classification of earnings
No full textWe analyze differences in the timeliness of income recognition between the U.S. and U.K. GAAP financial reporting regimes. Building on previous work in the area we focus on the links between current reported earnings and current and past changes in market value. In the light of Basu [1997] we present a formal model in which
the response of reported earnings to changes in market value varies according to whether the value change is good news or bad. This model yields a number of insights with regard to the definition and measurement of earnings conservatism. We also report evidence indicating that controlling for cross-jurisdictional classification differences affects comparisons of earnings timeliness and earnings conservatism; specifically, we find that apparent differences in conservatism between the U.S. and
U.K. accounting regimes are sensitive to the inclusion or exclusion of extraordinary items in U.K. accounting earnings
Section 1 of the Thirteenth Amendment and the Badges and Incidents of Slavery
No full textThis Article presents the first comprehensive treatment of the basic and officially “open” question whether Section 1 of the Thirteenth Amendment directly bans the badges and incidents of slavery. Surprisingly, in light of present-day uncertainty, the historical record is relatively clear on this issue. Members of the Thirty-Ninth Congress generally agreed that Section 1 banned at least some of the badges and incidents; they parted company over which ones. The Democrats and their allies, nearly all of whom had opposed the Amendment, claimed that it outlawed only the core incidents of slavery, for example chattelization and physically or legally forced labor. But their Republican opponents, all of whom had supported the Amendment, maintained that it banned a far broader set including—at a minimum—denials of the rights enumerated in the Civil Rights Act of 1866, namely to enjoy the same rights to make contracts, own property, and participate in court as were enjoyed by white citizens. Until 1968, courts also assumed that the issue of badges and incidents hinged on Section 1. Contrary to the received wisdom, Jones v. Alfred H. Mayer Co., decided in that year, announced for the first time that the identification of badges and incidents might be a task for Congress under the Section 2 power to enact “appropriate” enforcement legislation. Although the Court has maintained for nearly half a century that the question is “open,” the practical reality is that courts honor the narrow reading of Section 1 proposed by the unsuccessful Democratic opponents of both the Amendment and the 1866 Civil Rights Act, a reading later introduced to jurisprudence in the now-overruled Jim Crow decisions of Plessy v. Ferguson and Hodges v. United States. It is not too late to resolve the official uncertainty by embracing the Republican reading. This choice would re-start the process, commenced by the Thirty-Ninth Congress but derailed in Plessy and Hodges, of determining what it means to ensure that neither slavery nor involuntary servitude “shall exist.” The Article concludes by exploring some of the basic interpretive issues and their implications for the constitutional law of racially disparate impact, race-based affirmative action, gender equality, and reproductive freedom.Peer reviewe
Risk in a Simple Temporal Framework for Expected Utility Theory and for SKAT, the Stages of Knowledge Ahead Theory
No full textThe paper re-expresses arguments against the normative validity of expected utility theory in Robin Pope (1983, 1991a, 1991b, 1985, 1995, 2000, 2001, 2005, 2006, 2007). These concern the neglect of the evolving stages of knowledge ahead (stages of what the future will bring). Such evolution is fundamental to an experience of risk, yet not consistently incorporated even in axiomatised temporal versions of expected utility. Its neglect entails a disregard of emotional and financial effects on well-being before a particular risk is resolved. These are arguments are complemented with an analysis of the essential uniqueness property in the context of temporal and atemporal expected utility theory and a proof of the absence of a limit property natural in an axiomatised approach to temporal expected utility theory. Problems of the time structure of risk are investigated in a simple temporal framework restricted to a subclass of temporal lotteries in the sense of David Kreps and Evan Porteus (1978). This subclass is narrow but wide enough to discuss basic issues. It will be shown that there are serious objections against the modification of expected utility theory axiomatised by Kreps and Porteus (1978, 1979). By contrast the umbrella theory proffered by Pope that she has now termed SKAT, the Stages of Knowledge Ahead Theory, offers an epistemically consistent framework within which to construct particular models to deal with particular decision situations. A model by Caplin and Leahy (2001) will also be discussed and contrasted with the modelling within SKAT (Pope, Leopold and Leitner 2006).
The Thirteenth Amendment versus the Commerce Clause: Labor and the Shaping of the Post-New Deal Constitutional Order
No full textDuring the twentieth century, Congress's power to regulate commerce grew sensationally while its human rights powers atrophied. This strange phenomenon originated in the choice, made by lawyers and politicians in the early 1930s, to base labor rights statutes like the Wagner Act on the Commerce Clause instead of the Thirteenth Amendment. Unions and workers argued that the rights to organize and strike made the difference between freedom and involuntary servitude. But a bevy of progressive lawyers who styled themselves friends of labor undermined labor's Thirteenth Amendment theory. The article argues that this clash reflected not merely tactical differences among allies, but fundamentally conflicting constitutional goals. It contends that the Supreme Court upheld the Wagner Act not because of the lawyers' Commerce Clause arguments, but because workers staged a series of sit-down strikes that confronted the swing justices with a choice between industrial peace or war. Afterward, unions and workers interpreted the Wagner Act decisions as victories for labor freedom, but the Act's Commerce Clause foundation pointed in a different direction - one leading to fateful distortions in the jurisprudence of congressional powers.Peer reviewe
Contract, Race, and Freedom of Labor in the Constitutional Law of “Involuntary Servitude”
No full textThe Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the Involuntary Servitude Clause of the Thirteenth Amendment. This Article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough discussion of the interpretive issues. Under Pollock, a claimed right should be protected if it is necessary to provide workers with the “power below” and employers the “incentive above” to prevent “a harsh overlordship or unwholesome conditions of work.” Although this is not the only conceivable standard, it does fit well with the text, history, and case law of the Amendment. The absence of any racial element, which might appear dishonest in light of the fact that most of the leading cases involved workers of color, nevertheless corresponds to the Amendment’s original meaning and appears to have important advantages from a doctrinal point of view. The Article discusses the legal and philosophical justifications of various labor rights in relation to the Pollock standard, including the right to quit, the right to change employers, the right to name the wages for which one is willing to work, and the right to strike.Peer reviewe
Snubbed Landmark: Why United States v. Cruikshank (1876) Belongs at the Heart of the American Constitutional Canon
No full textUnited States v. Cruikshank (1876) is an unacknowledged landmark of American constitutional jurisprudence. Cruikshank, not the far more famous Civil Rights Cases, limited the Fourteenth Amendment to protect only against state action; Cruikshank, not the notorious Slaughter-House Cases, narrowed the Privileges or Immunities Clause of the Fourteenth Amendment to exclude rights enumerated in the Bill of Rights; Cruikshank, not the canonical Washington v. Davis, announced that the Fourteenth Amendment’s Equal Protection Clause protected only against provably intentional race discrimination; and Cruikshank, not the Civil Rights Cases or City of Boerne v. Flores, first excepted the Fourteenth Amendment from the general principle that Congress enjoys discretion to select the means of implementing its constitutional powers. Historically, if the argument of this Article holds true, Cruikshank played a crucial role in terminating Reconstruction and launching the one-party, segregationist regime of “Jim Crow” that prevailed in the South until the 1960s. The circuit court opinion of Justice Joseph Bradley unleashed the second and decisive phase of Reconstruction-era terrorism, while the ruling of the full Court ensured its successful culmination in the “redemption” of the black-majority states.
Despite its enormous jurisprudential and historical importance, however, Cruikshank has been omitted from the mainstream narrative and pedagogical canon of constitutional law. The results have been obfuscation and distortion. Unlike the Civil Rights Cases, Slaughter-House, Davis, and City of Boerne — from which students learn the principles actually announced in Cruikshank — Cruikshank lays bare the true origin of those principles in affirmative judicial intervention immunizing overtly racist terrorism against effective law enforcement. By contrast, Plessy v. Ferguson, the legal profession’s chosen focus for confession and atonement, merely let stand the legal product of a white supremacist state government that owed its existence to Cruikshank. With Cruikshank safely off stage, American law students are treated to a happy tale of progress from Plessy to Brown starring the Supreme Court as the primary protector of civil rights — a role that, ironically, the Court carved out for itself by truncating Congress’s civil rights powers in Cruikshank. Add Cruikshank, and the entire narrative shifts in ways that upset time-honored notions in the dimensions of federalism, separation of powers, popular constitutionalism, and class.Peer reviewe
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