Retaliation Against Workers at Immigration Rallies

Immigration and employment are closely linked subjects. After all, the 1986 Immigration Reform and Control Act criminalized an activity that we don’t normally think of as illegal – that is, the activity of work itself (when that work is performed without proper documentation). It’s been fascinating to follow the debate and to see the strange political bedfellows involved; congress is going to continue considering potential compromises. On May 1 these issues took center stage on the “Day Without an Immigrant” protests and boycotts (some of which continued past that day). For reports, see this CNN story and recent posts at ImmigrationProf here.

According to the print Wall Street Journal, however, the May 1 immigration rallies were somewhat constrained. If all of the 11 million workers who are working without authorization walked out on their jobs, that would cause serious harm to the national economy. The article raised the idea that the “strike” was muted in part because workers were afraid that they would be fired or otherwise retaliated against if they chose to take part in protests. The New York Times had earlier reported on retaliation against workers who had attended pro-immigration rallies.

Professor Paul Secunda over at WorkplaceProf offers the following intriguing analysis of retaliation for these protests building on a labor law theory:

From a legal standpoint, one of the most overlooked aspects of the National Labor Relations Act (NLRA) is that it not only protects unionized workers, and those seeking unionization, in their ability to engage in concerted activity for mutual aid and protection in the workplace, but also protects non-unionized workers, like many of these rallying immigrant workers, in their ability to engage in the same activity.

Consequently, non-unionized workers are also protected against adverse employment action by their employers to the extent that the rallies are considered a type of concerted activity for mutual aid and protection, which is directly related to concerns in the workplace. To the extent that employers nevertheless take adverse actions based on participating in these rallies, the impacted employees may be able to seek reinstatement and backpay through filing unfair labor practice claims with the NLRB.

Paul’s analysis certainly would lead to a progressive pro-speech / pro-expression outcome. But at the same time, walking out on work for this type of protest isn’t prompted by anything that the particular employer did. Attendance is a basic job requirement, and the employees could express themselves during non-work hours. Finally, if it is undocumented workers who are involved in the protest, the decision in Hoffman Plastics means that even if the workers were able to show that their rights had been violated, they wouldn’t be able to receive the backpay.

If all we’re left with is an employment analysis, then the remedy is even more constrained, since most workers are at will. I suppose there may be some kind of Title VII protection (for national origin discrimination) if all of the retaliated-against protestors are being treated more harshly than a worker of a different ethnic group who is absent for a day.

Interestingly, in another part of his post, Paul claims that most employers probably will not retaliate for self-interested reasons:

Finally, and perhaps the best reason for employers not to take any action against employees participating in immigration rallies is because, from a practical standpoint, it does not serve their interests. After all, many of the same companies and industries that are suffering the most from absent workers because of these rallies are the same companies which have the most to gain through the continuation of the current immigration state of affairs. It would thus seem in these employers’ best interests to encourage these workers to demonstrate for more flexible immigration laws and not to punish them for doing so


I suppose that depends on which employers, or how employer “economic interests” is defined. If the laws are changed to allow illegal aliens to regularize their status, that means that the “threat of calling the INS” no longer will have any power over undocumented workers. And these undocumented workers may then choose to organize or push for other rights – rights that they haven’t felt comfortable asserting because of the fear of deportation. And the employers who are currently hiring undocumented workers don’t want that.

Now, if the government shifted the focus from deporting immigrants themselves, and instead cracked down on employers (who perhaps have brought additional attention to themselves by firing employees who are attending immigration rallies), I suspect that the burden of the law would fall much differently. We would see a whole different set of incentives come into play, and that might lead to meaningful immigration reform.


Electronic Surveillance Statistics for 2005

wiretap2.jpgThe Department of Justice (DOJ) has released its annual report on the number of Foreign Intelligence Surveillance Act (FISA) orders, Wiretap Act orders, and National Security Letters issued in 2005.

For FISA surveillance orders, 2072 applications were made to the FISA court; none were denied. Over the past few years, the number of orders has been steadily increasing:

2005 — 2072 applications approved

2004 — 1758 applications approved

2003 — 1724 applications approved

2002 — 1228 applications approved

2001 — 934 applications approved

2000 — 1012 applications approved

1999 — 880 applications approved

In all, only 4 applications have ever been denied. More statistics are on EPIC’s FISA statistics page.

One wonders what the statisics would have been had the Bush Administration properly gone to the FISA court instead of engaging in secret wiretapping by the NSA.

In 2005, according to the Administrative Office of the United States Courts, there were 1773 wiretap orders issued by courts under the Wiretap Act. In 2004, there were 1710 wiretap orders issued.

For the first time, statistics were released on the use of National Security Letters. According to the DOJ report:

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A T-Rex Named Sue


As Dan S. correctly pointed out here, there are three law review articles that have “Tyrannosaurus” in the title, and all three deal with various aspects of the legal battle for a particular dinosaur named “Sue.” Sue has also been the subject of a Nova documentary and at least two full-length books (one entitled Rex Appeal).

Here is the brief version of Sue’s story. In August 1990, commercial fossil hunters from the Black Hills Institute discovered Sue on a parcel of land within a Sioux reservation in South Dakota. The land was ostensibly owned by a rancher named Maurice Williams. The fossil hunters provided Williams with a check for $5,000, but Sue’s fair market value was later established at over $8,000,000. The fossil hunters, the landowner, the tribe, and the federal government went to court claiming ownership.

The Eighth Circuit eventually ruled that because the land had been held in Native American trust, and because the dinosaur was part of the “land,” Sue could not be sold without government permission, and that the federal government held Sue in trust for Williams. The fossil was eventually put up for auction, with a combination of corporate and non-profit interests joining together in their purchase. Sue now holds court at the Chicago field museum.

With that set of facts, you can take numerous angles on the case. In my article, I chose to describe how I use this case in class to teach contract defenses. In short, the Tyrannosaurus Sue article occupies the intersection of my interest in contract law, teaching theory, and terrible puns:

1) Contract law. Although the Court based its decision on principles of property law and statutory interpretation, it would have been fascinating if the court had examined the case from a contract perspective. Think of all the great contract defenses that could be raised to challenge the transaction, i.e. unconscionability, mistake, misrepresentation, duty to disclose. If you change the facts around slightly in a hypo, you can get into the discussion of defenses even more.

2) Teaching theory. I show my class the Nova Special on the discovery of the dinosaur, and spend a class exploring various theories of the case and talking about the defenses. It’s multimedia, it’s problem-based, it promotes active learning. You know, all the good stuff.

3) Terrible puns. Where to start digging on this one? The article contains numerous puns, the quality of which, er, kept degenerating. As a condition to my contract to publish the article, I insisted that footnote 23 remain:

An arm’s-length transaction with a T-Rex would be an interesting arrangement, given their tiny forelimbs.

So there you have it. Dinosaur law.


Farewell and Thanks

Many thanks to Dan Solove and the Co-Op gang for graciously allowing me to dip my toe into the blogging waters (an unlovely word, “blog,” I think, but never mind). I’ve enjoyed my stay and have appreciated the thoughtful comments.

As an avid blog reader, I’ve been fascinated by the many forms blogs can take: personal diaries, op-ed pages, clipping services, breaking news alerts, scholarly journals, news magazines, debate clubs, literary salons, and on and on. It’s this fascination that draws me in, resulting in a seemingly never-ending accumulation of browser bookmarks and a daily round-robin of reading in an effort to keep up with the many voices speaking, often simultaneously.

So when history considers what blogging hath wrought, I think the new pace of discourse will be high on the list. It’s thrilling to see debate about a new Supreme Court opinion take place hours after it’s handed down, rather than months later in the law reviews. But I wonder if the expectation of instacommentary doesn’t impose at least a small burden both on writers and on readers. The form risks our feeling as if we must be engaged in a constant discussion with one another, writing blogs, linking to other blogs, reading blogs, commenting on blogs ad infinitum. I am quite sure that I am revealing my own tendencies toward introversion when I say that this proliferation of speech is at times as exhausting as it is exhilarating.

I’m not proposing any changes here or solutions — to each his own panacea (if indeed a remedy is needed). Rely on intermediaries (such as Larry Solum’s excellent blog and Michael Froomkin’s new venture); read more selectively and resign oneself to the fact that conversations don’t stop simply because one leaves the room; or simply enjoy the fact that the marketplace of ideas is sometimes a Turkish bazaar: full of life, color, and a good deal of noise, but offering great treasures if you know where to look.


Alito’s First Death Decision

Alitocollege.jpgSam Alito’s first SCOTUS opinion arrived yesterday and – if you see the world through Cass colored glasses – it’s a liberal one: the defendant won. The issue in Holmes v. South Carolina was whether:

a criminal defendant’s federal constitutional rights are violated by an evidence rule under which the defendant may not introduce proof of third-party guilt if the prosecution has introduced forensic evidence that, if believed, strongly supports a guilty verdict.

The trial court excluded evidence suggesting that a third party had confessed to killing 86 year old Mary Stewart. Why? On the grounds that the evidence against the defendant was so powerful that any evidence implicating the third party could not raise a reasonable inference that the defendant was innocent. To put it another way, the case against Holmes was so good that the state was allowed to exclude evidence that another guy did it. No need to bother the jury with messy details. The South Carolina Supremes thought this was a fine idea as well.

This didn’t look like a hard case to me and the 9-0 vote thankfully confirmed that feeling. If a defendant possesses reasonably relevant evidence on the issue of guilt, we generally let the jury hear it. When, as here, a judge keeps this information from the jury, he or she effectively decides the outcome of a case. In rejecting this policy as unconstitutional, Justices Alito and Roberts proved that whatever their ultimate ideological place on the Court, they are not completely off the deep edge.

More interesting to me, though, is what was missing from the decision. Alito did not note that this was a death penalty case. His opinion stated that Holmes received a death sentence after his first trial, and that this trial and sentence were reversed by a state court. But nowhere in the opinion did he say that this new appeal was also from a death sentence. Why is that? Perhaps it was an oversight. Or maybe Alito thought the underlying sentence was an unnecessary fact. If so, why did Alito note Holmes’ capital sentence after his first trial? Perhaps he didn’t want to highlight this as a death case. He might have felt uncomfortable reversing a death sentence in a heinous killing. Or maybe he didn’t want the case framed as a “death decision” – with all the attendant baggage – and instead cast it as a plain old evidence ruling.

This is a small detail to be sure, but Alito surely knew his first opinion would go under a microscope. The odds are that this omission was not strategic. But if it was, I certainly hope that it does not portend a broader willingness to omit uncomfortable facts.


Nominally Empirical Evidence of Unraveling in the Law Review Market

book21a.jpgIn a previous post, I observed that “the time for submitting law review articles is creeping backwards.” I then hypothesized that “we are experiencing what Alvin Roth called the ‘unraveling’ of a sorting market.” This is bad news:

Authors may not be able to get any sense at all of the “market value” of their article (loosely reflected, the myth goes, by multiple offers at a variety of journals). Conversely, journals feeling pressure to move quickly will increasingly resort to proxies for quality like letterhead, prior publication, and the eminences listed in the article’s first footnote (which tell you who an author’s friends and professional contacts are).

At the end of that post, I promised to “explore empirical evidence that this is in fact an unraveling market problem (as opposed to anecdote, to the extent possible).” As it turns out, this was a hard promise to deliver on. There simply isn’t data out there – at least that I’ve been able to find, that collects historical information about the submission processes to law reviews. This is somewhat surprising. Law professors are insular, interested in navel gazing, and well-motivated to do anything other than grading. Moreover, the process of submission is an economically consequential activity. But only recently, in two works-in-progress, has there have been any attempt made to systematically get at this problem. See here, and here.

I thought I’d make a modest contribution to the field by contributing some data from Temple in this recent submission season, and ask our readers to contribute with their experience as well. The sample size is tiny; the respondents self-selecting. This is, therefore, Co-Op’s second “very non-scientific survey” this week. It’s a trend! The data is not meant to suggest any definite conclusions, but rather help researchers with hypothesis formation. But I’ll offer some grand thoughts at the end of this post anyway.

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Glad to Be Here

Thanks, Dan S., for the warm Concurring Opinions welcome! I’m happy to be here, writing whatever I want, I mean, advancing the intellectual legal dialectic of this most scholarly blog. Enough filler for now (no offense, Dan F.), more about contracts, employment, law and popular culture (and dinosaurs) to come.


Performance of spam stocks – a very non-scientific survey

I get a fair number of spam e-mails advertising stocks. They’re often penny stocks, and the e-mails often project outrageously high returns (“5 day expected return: 325%”). On a whim, I saved the e-mails that I’ve gotten for the past 10 days, to see how well the spam stocks performed. This is what I found:

April 20: MDBF.PK, then $1.25, “profits of 300% to 500% expected.”

Result: I can’t locate a Yahoo chart going back to April 20. (I don’t think Yahoo keeps charts that long for some pink sheet stocks). (Note: Most of these Pink Sheet stocks – not particularly surprising.) I did locate current price and a 5-day chart. It’s currently trading at .60 . It’s been up to $1.20 in the past 5 days. There’s no indication that it ever came close to the $5 suggested in the spam e-mail.

April 21: SIKY.PK, then trading at 0.26, spam e-mail suggesting “great” returns.

Result: It’s now trading at 0.26; 5 day charts show that it did make it to the 60-to-80 cent range a few days ago.

April 24: KKPT.PK. Then trading at .86, spam e-mail suggested target price at $3.25 in 5 days.

Result: Yahoo has longer charts for this stock, so we can see: The price rose on the day of the spam, going to $1.12. Volume went from 87,000 to over a million, a thirteenfold increase. It peaked a day later at $1.13, and is now back to 90 cents.

April 24: CWTD.OB. Then trading at $1.39; spam e-mail suggested 200-400% profits in the next few days.

Result: This one is actually doing quite well. The spam drove the price from $1.39 to $2.10 in a single day, as volume rose from 62,000 to over 3 million. It peaked a day later, and is now standing at $2.00.

April 26: IKMA.PK. Then trading at 30 cents a share; no target announced, but spam suggested that doubling of value would not be unusual.

Result: Volume went up, from 200,000 to 400,000. Price dropped like a rock. Currently trades at 13 cents.

April 27: PGCN.OB. Then trading at 45 cents; 5 day target of $2.

Result: Appears to be another spam-created spike. Volume shot up, and the stock briefly went over a dollar, shortly after the spam; it’s currently in free fall.

Results: This very non-scientific survey — based only on what’s come into my inbox in the past few days — suggests a few possible take-home points, none of them particularly earth shattering.

First, spam works. Pump and dump works. Someone almost certainly made a lot of money on these stocks by buying them ahead of the spam, and then pumping them with the spam, and then presumably selling when the stock peaked.

Second, spam e-mails do a very good job of generating volume. I knew going in that these sorts of schemes work by generating volume in a usually thinly traded penny stock; still, it was sobering to see volume go from 60 thousand to 3 million in a day – and to note the perfect correlation with the date of the spam e-mail.

Third point (related to the last) is that the old adage is true, there is indeed a sucker born every minute. Three million plus shares worth of suckers for one spam alone (and many, many more for other spams) — all hopping on to a badwagon being promoted by spam e-mails sent by automated programs and authored by “analysts” with names like “Cranach U. Flagellates.” Incredible.

Finally, this short glimpse of spam results drives home a point I already knew (and I really hope you knew as well) — these penny stocks seldom make anyone rich except those who run the scam. Some of these stocks did skyrocket briefly — but the lion’s share of the gain came very early, and so almost certainly went to people who knew about the scheme to begin with. No surprise there.

So nothing earth shattering; still, it’s fun to see old-school common sense points confirmed by a quick check of my own inbox. And yes, you have my permission to forward this post to your Uncle Charlie when he calls you excitedly tell you about the latest surefire stock, e-mailed to him by someone named Cranach U. Flaggellates.



On Wednesday, I had the pleasure of participating in a conference sponsored by the Harvard Negotiation Law Review that considered two case studies: the Oracle-Peoplesoft deal and the forthcoming MasterCard IPO. Vic Fleischer presented his thoughts on, among other things, the branding effect of certain aspects of the MasterCard IPO structure, and I was part of a group of IP folks who offered comments.

In my comments (which will be published later this year in the HNLR along with the other papers), I referred to the “metabranding” by the media that necessarily takes place when the audience for the branding message is outside the stream of communication in which the message is delivered. (In the MasterCard example, I posited that if MasterCard is indeed trying to contribute to its brand image through its IPO structure, it needed to rely on the media to carry that message to consumers (i.e., cardholders) who were not among the audience for the IPO’s regulatory documents in which that structure was described.) Because the media is not beholden to the branding entity, it is free, like any consumer, to accept or critique the branding message; the process is both inherent in the branding effort and necessarily works the deconstruction of the brand. More broadly, I see “metabranding” as a type of discourse about the branding effect itself, a discussion in which the participants deliberately and openly contribute to brand meaning. (Given that trademark meaning is always ultimately created by consumers, metabranding brings that discussion out in the open.)

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Listen to Some Hot Air On Gas Gouging

I did an interview on public radio that appeared over the weekend on WAMC‘s “The Weekly Rundown.” No, I’m not at Tulane, as Mary Darcy (the host) suggests. But the Co-Op got a shout-out, so I really ought not complain. Welcome, readers from upper New York State! Go ahead and give it a listen (I start about two minutes in. I’m the guy who pronounces “gas” as “gaaz,” as all true Philadelphians do.).