« Altria v Good and SCOTUS' battle over preemption | Main | Eric Posner versus the Heritage Foundation... »

Saturday, December 20, 2008

"Which side are you on?"

Search me. One reason I chose to be an academic is to gain the right to choose my positions a la carte rather than from the prix fixe menu of Left-Right vacuities that dominate the punditocracy and blogosphere. So, for instance (to pull a random example out of thin air), it strikes me as inane to have a general ideological position on "unions," as if one should endorse or condemn together the baseball players' union, the corrections officers union in California, the Teamsters, or District Council 37. Likewise, it strikes me as absurd to think that, because I worry about the latest round of contracts between the public sector and New York City, that I am hostile even to public-sector unions in general. When Jerry Wurf organized the park workers against Robert Moses in the 1950s, that was a victory for justice against tyranny. When Wagner signed Executive Order 49 recognizing the right of the public-sector unions to engage in collective bargaining, that was a magna carta for labor. I think that it perfectly possible -- indeed, easy -- to hold these views and also believe that public-sector unions held a troubling veto over fiscal policy in the last round of CBA negotiations. Bloomberg was right to believe that '05 was the time to sock away money in a rainy day fund. That he surrendered so entirely on getting public employees to shoulder a bit of their health insurance premiums or work a bit longer strikes me as a small failure of democracy, if democracy means that one narrow constituency should not dominate the city's public life.

To respond to such a worry by angrily denouncing Wall Street types as greedy bastards who make too much money is a colossal non sequitur. Of course, Wall Street makes too much money: Indeed, they are another narrow constituency that tends illegitimately to dominate NYC life. (The bond underwriters tend to be the worst of the bunch in terms of excessive influence). Why would anyone think that worrying about District Council 37 somehow implies approving of Wall Street?

My hypothesis: Some academics have joined a sort of intellectual's trade union in which two positions -- disapproval of District Council 37 and love of Wall Street -- must somehow be bundled together as negotiating items. That sort of bundling of positions makes perfect sense in a two-party system as a means of simplifying ballots for busy voters: After all, Duverger's Law requires us to choose one of two sides. But it is senseless in an academic blog. When it comes to thinking and writing, we academics should put our union cards in our shoes and all be shameless scabs, choosing whichever intellectual position happens to yield the greatest payoff.

Oh, and just to state the obvious: Yes, Brian, we NYU law profs are overpaid. Bloomberg definitely should not give us a raise.

Posted by Rick Hills on December 20, 2008 at 09:09 AM in Rick Hills | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Which side are you on?":


Sorry, that last sentence was too snarky. I should confine myself to your arguments (or lack thereof) rather than to your person.

Posted by: Northerner | Dec 22, 2008 7:56:21 PM

Fine. If you think twice before clogging up comment threads with interminable bibliographies, all will be well. Indeed, if you spent more time writing legitimate academic work rather than writing blog comments listing all of your voluminous reading, you might go far.

Posted by: Northerner | Dec 22, 2008 7:45:21 PM

This exchange has had at least one salutary effect: I've decided that I will no longer discuss, debate, or answer questions from any anonymous blogger, so, dear Northerner, thank you for prompting me to make that decision.

Posted by: Patrick S. O'Donnell | Dec 22, 2008 3:45:33 PM

Incidentally, I still want you to have the last word, but I trust you understand what it means when someone seeks to explore the unstated, background presuppositions and assumptions of an argument, or examine what larger context an argument might be situated in so as to see why it may be the case that "this" question rather than "that" was chosen, deemed important, thought central, and so forth. Indeed, sometimes an exploration of presuppositions and assumptions goes to the heart of an argument, at the very least it can serve to shift the burden of proof. You appear to have a very constricted and untenable notion of what an argument consists in, one reason I suggested the Walton book. I did not immediately attempt to address Rick's question because I thought it was in bad faith, more or less, for the reasons I expressed in my initial comments and references. Arguments are never made in vacuums (except, perhaps, those of formal logic entirely dependent on deductive reasoning), even at this blog: it often helps to explore the bigger picture, the background or historical and ideological context, especially if one doesn't share some of the animating assumptions or one is troubled by the apparent presuppositions in the argument one is contesting. In this case at least, the "specific" issue was, from my vantage point, fraught with baggage of one kind or another, and thus it helped to do a little unpacking so as to see what was otherwise hidden from view. Therefore, everything I posted was chock full of relevance, which at least a few others saw and evidently appreciated. Others may willfully refuse to see or understand what is right before them...so be it.

But at 52 yrs., I'm flattered by the freshman insinuation!

Posted by: Patrick S. O'Donnell | Dec 22, 2008 2:53:53 PM

...only banks, financial institutions and corporations are permitted to think first and foremost of their economic self-interests, not workers, renters, consumers, the very folks that are the backbone of any economy.

Re: Any argument whatsoever about the point Hills had made, i.e., the effect of public sector union packages on the financial health of New York City.

As to the first question, it was your post that chose to highlight the Independent Budget Office’s prediction of “dire tax losses from rising unemployment, falling property values, and a frozen credit markets” for the City. So, one might reasonably entertain the expectation that this would lead to a discussion of the larger economic forces that contributed to this dire financial situation (etiology), or what economic strategies and policies the City might pursue in collaboration with larger government entities (the state of New York to the federal government). For it is well known at this juncture of the ongoing crisis that larger municipalities such as New York City as well as states like California cannot rely on economic bootstrapping to save themselves. Well, there’s nothing inherently wrong with thwarting expectations, but in this case one might reasonably infer something was amiss, for you chose to focus instead on what was tendentiously termed the “extraordinarily generous deals” that were the outcome of collective bargaining agreements, the outcome of which were the equal responsibility of both parties at the table.

I began to think: how can these two things be connected? Surely one (the bargaining agreements) did not cause the other (the City’s apparent imminent fiscal crisis). And in point of fact one of the quotes from Cohen and Rogers was intended to provoke us into looking at such things within the larger picture such that we appreciate how the economic system encourages and rewards this particular form of economic rationality among workers in labor markets and thus it is not at all troubling or at least it is understandable that they look out for their individual and collective self-interests at the bargaining table. Nonetheless, is the wage and benefits package these public sector employees (oops, I meant to say ‘workers’) have bargained for responsible for the City’s economic woes: not at all. Will they lead to its bankruptcy? Impossible, at least in the sense that we could hold them causally responsible for such a thing. At worst, these agreements might be seen as symptoms of much larger economic forces, but we shouldn’t confuse them with the illness itself. To insinuate otherwise is reminiscent of the Republicans’ recent attempt in Congress to use the negotiation over a possible automakers’ bailout to extract further concessions from the autoworkers, as if they were somehow to blame for the dire straits these companies find themselves in (while the companies are not wholly to blame, I think it’s fair to say their myopic investment and management decisions amount to aiding and abetting their financial morass). Nonetheless, could a collective agreement lead somehow to the City’s bankruptcy? Only in the rather attenuated sense of the straw that broke the camel’s back or as some sort of tipping point or catalyst, but even that scenario seems unlikely if only because a bargaining agreement with such precipitating power would not be in the individual or collective rational economic interests of the employees. Unionized public sector employees are in no way responsible for the fact that past agreements are now christened “fiscally unsustainable,” so to focus on them is to lose all sense of proportion with regard to macro-economic and micro-economic causality. I was happy to see your reply at least acknowledge the City as a party that may be (or may have been) unwilling to “confront the impending crisis."

I am also delighted to learn that you are “genuinely undecided about…the desirability of the enormous influence of NYC’s public sector unions on city government.” It’s now clear that you are not “normatively neutral” and perhaps the “bullshit” charge achieved the salutary effect of prompting you to clarify your views on unions. All the same, it is not now nor has it ever been the role of unions qua unions to “address the needs of the dependent poor,” that’s a social welfare function of government insofar as private charity cannot always and everywhere nor efficiently or effectively fit the bill (see Goodin’s Reasons for Welfare: The Political Theory of the Welfare State, 1988).

I should inform you that I lack both the capacity and opportunity to “leave the comfy bubble of clenched fist campus ‘radicalism’” (now that’s a line worthy of Ann Coulter or Rush Limbaugh) if only because I’m not a member of any such bubble owing to the fact that I spend a paltry several hours a week on a community college campus, being on a semester-to-semester contract that is as comfortable as a poor tenant’s month-to-month rental agreement. I spend more time doing landscape maintenance for our condominium association than I do teaching. What is more, having entered the academic world in my mid-forties only further enhances my sense of distance from the comfortable confines of the ivory tower (I’ll admit to exploiting what little institutional affiliation I do possess when trying to get something published). Never mind all that, guilt by association will do: it’s an accusatory rhetorical trope we grew accustomed to during the presidential campaign. I admit to being unsure as to what is meant by “pretentious academic political piety,” although it has a fine ring to it and hints of something nasty. Whatever you decide to call me, it’s perhaps most prudent that it not be an “academic,” especially if it contains only pejorative content.

At the risk of more irrelevancies and hand-waving I also cannot see what Tawney’s “guild socialism” has to do with anything, but then again you probably did not read the book I cited, as it’s a layperson’s guide to the personal and socio-cultural economic values enshrined in and encouraged by our economic system and the deleterious effects these can have over time on our moral psychology (some relevant quotes are found in a comment to a MoneyLaw post by Jim Chen http://money-law.blogspot.com/2008/12/curtains-on-cowboy-philanthropy-cruel.html#links). It is no more about socialism than Marx’s three volumes on Capital were about communism. The book can help us better understand the behavior of those on top of the financial system who played a leading role in the current crisis, as well as possible reasons for the number and scope of recent financial scandals, a subject of more pressing economic relevance than the bargaining power of public sector unions.

By “workers” I mean, loosely, those (non-capitalists, i.e., do not belong to the capitalist class) who are forced or compelled to sell their labor power (the exceptions serving to entrench the rule) and are structurally liable or vulnerable to exploitation by the capitalist class. Capitalist and working classes can be defined in terms of relations, behavior and endowments having to do with property, markets, exploitation and power (behaviors include such things as ‘working vs. not-working,’ ‘selling vs. buying,’ ‘lending vs. borrowing capital,’ ‘renting vs. owning land,’ and ‘giving vs. receiving commands in the management of corporate property’). Again, loosely, a class is “a group of people who by virtue of what they possess are compelled to engage in the same activities if they want to make the best of their endowments.” (For further discussion see Jon Elster’s work on Marx and Marxism and Erik Olin Wright’s work on classes).

Posted by: Patrick S. O'Donnell | Dec 22, 2008 2:21:38 PM

There was no claim to superiority

Your own previous comment belies you in nearly every sentence, especially this: "Some of us read a bit more and quicker than others." Not a reference to yourself? Come on. Have the courage to stick by your own claims.

And yes, your mode of argumentation is seriously deficient. Consider your argument responding to Mr. Hill's first post (linked as a "random example" in this post). You say that Hills is full of bullshit (great argument there), you provide a lengthy quote from a Los Angeles Times article about the bailout (irrelevant), you provide a lengthy quote from "On Democracy" (even less relevant), you provide a lengthy quote from Michael Luntley (still irrelevant), and then, for reasons that even you found too tiresome to explain, you wrap up with the suggestion to read R.H. Tawney's The Acquisitive Society (1921).

What was lacking in all of that? Any argument whatsoever about the point Hills had made, i.e., the effect of public sector union packages on the financial health of New York City.

It's a freshman-type problem. The question on the table is, "Is the Electoral College a good idea," and the freshman responds with blockquotes from Plato about democracy . . . well, ok, that's all fine and well, and bully for reading Plato, but how about addressing the specific issue?

Posted by: Northerner | Dec 22, 2008 1:40:59 PM

There was no claim to superiority but merely your transparent feelings of inferiority, which allows you to project the former onto others. I'm delighted you've read lots of books, as then perhaps you won't mind reading a few more. I haven't compiled any bibliographies here, those are over at Ratio Juris in the Directed Reading series. You can look up several of my papers online for arguments (on social norms, critical thinking pedagogy, and stare decisis, for example) and there are not a few found at PrawfsBlawg and elsewhere in the legal blogosphere. You exemplified quite an argument in your abusive ad hominem (i.e., a nice illustration of an informal fallacy, thanks!) so you might think of being a bit more reticent before you begin hectoring others about making arguments. As you appear to lack the ability to properly discern or discover an argument, I'll be so brash as to recommend Alec Fisher's The Logic of Real Arguments (1988) and Douglas Walton's Plausible Argument in Everyday Conversation (1992).

But please have the last word, as I can't bear the complicity in subjecting others to your nonsense.

All good wishes otherwise,

Posted by: Patrick S. O'Donnell | Dec 22, 2008 12:26:21 PM

Don't satisfy yourself in your supposed superiority in that regard. I've read lots and lots of books too. But if I want to convince someone else of my point of view, I wouldn't think it persuasive to write comments that consist of: "Your point of view is bullshit, and now here is 1,500 words consisting of not-quite-relevant blockquotes from 25 authors (some famous, some obscure) that I have read." Arguments are about more than compiling a bibliography.

Posted by: Northerner | Dec 22, 2008 12:09:50 PM

Geez, skip what you don't want to read and consider a subscription to Reader's Digest. Some of us read a bit more and quicker than others. And some of us save things for a rainy (or snowy day). "Authorities" can be intimidating to those lacking a disposition to learn. It's rather unfortunate that you're so pained by an intimate realization of your limits in this regard...and important you remain anonymous so as not to embarrass yourself.

Posted by: Patrick S. O'Donnell | Dec 22, 2008 11:18:41 AM

Does anyone have time to read O'Donnell's rambling comments? He seems to think that every comment should consist of a recommended syllabus for a entire semester's study of a particular topic. Geez, make a pithy argument on your own behalf, without all the handwaving citations to authorities.

Posted by: Northerner | Dec 22, 2008 10:58:38 AM


I learned recently from Mary Dudziak's Legal History Blog of an upcoming conference at my alma mater (a hop, skip and jump from where we live downtown) that you (and/or readers of our discussion) may be interested in attending:

Nelson Lichtenstein, University of California Santa Barbara, and Chris Tilly, UCLA, have just circulated a call for the conference "The American Right and U.S. Labor: Politics, Ideology, and Imagination," to be held January 16-17, 2009 at the University of California, Santa Barbara. The conference will be hosted by the UCSB Center for the Study of Work, Labor, and Democracy and the UCLA Institute for Research on Labor and Employment.

At the webpage for the conference there are further details (and you can download the papers being presented!):

"An intense and systematic hostility to trade unionism on the part of American conservatism is hardly news. It has been a notable feature of the nation’s political landscape for decades. But an understanding and deconstruction of this phenomenon requires something more than mere condemnation, especially during the next few years when a labor-liberal effort to reform of the American labor law, along with the rise of labor’s influence within the Democratic Party, is almost certain to generate a furious and determined counter attack from those who seek to limit the power and marginalize the legitimacy of U.S. trade unionism. [....]

This conference seeks to explore the character of those political institutions, ideological impulses, and journalistic/rhetorical tropes that have been deployed in this conservative effort to marginalize and delegitimize American trade unionism. We have thus far accepted papers from some 32 individuals, chiefly historians and legal scholars. Their work offers multiple, complimentary [sic] insights into a heretofore unexplored world of right-wing ideas and praxis."

For more, please see: http://www.ihc.ucsb.edu/rightandlabor/

Posted by: Patrick S. O'Donnell | Dec 20, 2008 8:24:44 PM

Respectfully, I think you're attacking a bit of a straw man. My experience with liberals, academics, and liberal academics is that they are hardly knee-jerk union supporters. Academic liberalism and leftism, at least since the 1980s, has been much more influenced by forms of the new left and the post-new-left deconstructionists and what is sometimes called "identity politics" than by the older left tradition of promoting the working class and its representative institutions as the savior of mankind.

Beyond that, even those of us who actually do, as a general matter, support unions (e.g., me) don't argue that everything unions do is always correct/admirable. Heck, unions have over 16 million members, in all sorts of unions with all sorts of strategies. Some are good, some are bad.

Along those lines, if you tell me you don't love Wall Street, I'm entirely willing to believe you. Me personally, I don't hate it. Except maybe recently when opening my 403(b) statements.

Posted by: Joseph Slater | Dec 20, 2008 5:51:14 PM

"When it comes to thinking and writing, we academics should put our union cards in our shoes and all be shameless scabs, choosing whichever intellectual position happens to yield the greatest payoff."

How about whichever intellectual position exemplifies analytical acumen; the best of social science methodologies (strictly speaking, 'methods'; cf. Jon Elster's Nuts and Bolts for the Social Sciences [1989] and Explaining Social Behavior [2007], Richard Miller's Fact and Method: Explanation, Confirmation and Reality in the Natural and Social Sciences [1987], Nicholas Rescher's Objectivity: The Obligations of Impersonal Reason [1997], as well as his works on cognitive pragmatism and epistemology generally, Alvin Goldman's work on social epistemology, Harold Kincaid's Philosophical Foundations of the Social Sciences [1996], the work of Ian Hacking, especially The Social Construction of What? [1999] and Historical Ontology [2002], Deirdre McCloskey's several books on the rhetoric of economics, as well as Hausman & McPherson, Amartya Sen, Philip Mirowski, and S.M. Amadae on economic reasoning and arguments); a well-honed appreciation of "folk psychological narratives" (see, for example, Daniel Hutto's Folk Psychological Narratives: The Socio-Cultural Basis of Understanding Reasons [2008]); an awareness of the centrial part played by presuppositions and assumptions regarding human nature; an ability to understand the importance of empathy (a recent treatment of which is Karsten Stueber's Rediscovering Empathy: Agency, Folk Psychology and the Human Sciences [2006]); skill in making sense of analogical and metaphorical reasoning as well as the role of emotions in rational argument; a sound ethical compass (e.g., that exemplified by a Charles Taylor, Martha Nussbaum, Kwame Anthony Appiah, David Velleman, Philip Kitcher, Partha Dasgupta, K.S. Shrader Frechette); an appreciation of intrinsic values; a sophisticated sense of intellectual and moral responsibility; a philosophical temperament even if one lacks formal philosophical training; and, last but not least, a Deweyian-like commitment to the goal of a well-educated populace.

Posted by: Patrick S. O'Donnell | Dec 20, 2008 3:14:18 PM

[I preface my remarks with a reminder of what I said in my last comment to your "Public Employees" post about being an academic.]

"Over the past three decades, emboldened employers have redoubled their opposition to collective bargaining, helped along by deindustrialization, deregulation, and other types of economic restructuring. As a result, union density has fallen precipitously, especially in the private sector, in which only 9 percent of the workforce is organized today--about one-third the level that prevailed in the early 1970s. Moreover, in the industries and occupations in which employment is expanding most rapidly [well, as of 2004], unions are conspicuous mainly by their absence. Similarly, key population groups like immigrants and women, whose share of the workforce is growing, remain underrepresented in the ranks of organized labor--despite evidence that such workers, especially those concentrated in low-wage jobs, are especially sympathetic to unionization efforts" (Ruth Milkman and Kim Voss, eds., Rebuilding Labor: Organizing and Organizers in the New Union Movement, 2004).

I have a general theoretical, philosophical, economic, and political view on unions (largely of Marxist provenance [see here: http://ratiojuris.blogspot.com/2008/12/marx-marxism-very-select-bibliography.html]: if that necessarily amounts to a "general ideological position on 'unions,'" so be it. That hardly prevents me or anyone else from being critical of some things unions do, fighting against corrupt unions (e.g., historically, the Teamsters), or wishing unions would engage in more organizing campaigns among poor immigrant workers, those at the bottom of the pyramid and so forth (like they've done with the janitors in Los Angeles). Having a "general" take on unions hardly precludes microcosmic or local critique, but it does send the message that, on the whole and in the balance, unions are a positive force in our society and in the world. This position is no less tenable or plausible than a contemporary Federalist who is critical of some things done in the name of Federalism, of a Federalist who has a "general ideological position on 'federalism.'"

Alone, workers are virtually powerless against those with capital, i.e., capitalists, but in solidarity and joint collective action, the initial endowment equation changes: it's by no means equal, but the enormous disparity in bargaining power is mollified, and I think that's a good thing as it helps generate and spread tendencies toward the equal positive liberty of citizens in a would-be democracy. Unions aren't free of all sin, but what form of human organization is?

Unions make a positive contribution to what is known as "positive liberty or freedom," entailing, for instance, the right to make or participate meaningfully in decisions affecting one's life, [i.e.,] the more general right of self-determination, and the ideal of autonomy. Personal and (negative) liberty rights are a necessary condition of self-determination, but without the complement of political, economic and social rights the ideal of autonomy shrivels and shrinks, recedes as a meaningfully attainable goal. Without unions, workers have very few rights in this latter sense, and what rights they have in the former sense will provide little meaningful protection if only because "the rights to organize, bargain collectively, and strike had--and still have--to be fought for in the courts and legislatures as well as on the streets and picket lines, because employers would--and still do--get injunctions, charge people with conspiracy, and have them put in jail. Even to get your case heard in court it is necessary to define it in terms the courts find relevant, and this generally means in terms of rights, and rights are the primary legal tools or weapons of self-defense.... And this is practical because to a large degree, at least in the short run, this perspective dictates the terms within which we must fight our day-to-day battles, whether in the courts, on the streets, in the media, or--most likely--some combination of these. As David Lyons says, 'Rights are the principle currency of moral, political, and legal disputes'" (Mary Gibson, Workers' Rights, 1983).

As Gibson also explains, a more substantive, positive interpretation of rights accords recognition to the fact that respect for and exercise of negative liberty rights "should not be contingent upon wealth, power or position," and without unions, the rights of workers are subject to arbitrary and unjustified capitulation to precisely those three variables in a manner contrary to the exercise of egalitarian democratic citizenship in a "capitalist democracy" in the sense outlined by Cohen and Rogers. In summary, "Current social arrangements grant in theory and in form, though not in substance, what both slavery and serfdom, each in its own way, denied: the dignity and autonomy of every individual, the right of each to significant control of his or her life and destiny. The demand that substance be added to the form, that practice fulfill what theory promises, may ultimately press beyond the limits of what these arrangements--even significantly reformed--can deliver" (Gibson). Which is one reason why the granting of meaningful workers' rights and the success of worker solidarity, unionization drives, and collective bargaining may one day help us see the inherent limits of the current arrangements and foment the desire for "economic democracy" as the means to further enhance individual and collective self-determination and substantive personal autonomy (see David Schweickart's Against Capitalism, 1996, for a persuasive account of the meaning of 'economic democracy.').

It's troubling that today, for example, "it is employers who know more about labor law and understand its importance. They have formed numerous foundations and lobbying groups whose main purposes are to find loopholes in the existing labor laws and to press for repressive new legislation. They have begun to organize and to hire labor 'consulting' firms whose business it is to stop unions by any means necessary including violations of the labor laws. Hundreds of millions of dollars [1987] have been spent by businesses large and small to change labor laws and subvert them, proof positive that they are important and potentially of great value to workers. The corporate attack on the legal rights of workers has been very successful. [....] The anti-labor campaign has also been in large part responsible for the slowdown in labor organizing over the past 20 years. [....]

Unfortunately, we do not know much about our labor history, and this is just what the Henry Fords of the world want. They do not want us to know that we have changed things by uniting our coworkers and fighting the owners, managers, and politicians. They want us to think that shorter hours and higher wages were given to us by benevolent employers and our legal rights granted us by kindly Presidents. Most of all, they want us to believe that collective action to improve working conditions, to change laws, and to challenge the oppressive conditions under which we live are impractical and irrational, perhaps a little crazy [Yates proceeds to sketch an nice historical introduction to U.S. labor law]" (Michael Yates, Labor Law Handbook, 1987 ed.).

Owing to lack of sleep and haste, this is rather long and rambling, but I'll conclude by saying I still find the arguments found in Richard Freeman and James Medoff's classic book, What Do Unions Do? (1984), convincing. They have helped to craft my general viewpoint on the necessity and significance of unions in this country. And please stay tuned for a new edition of my bibliography on "The World of Work & Labor Law" (an early draft of which was first posted here as part of Prawfs' 'research canons' project) at Ratio Juris as part of the Directed Reading series. In the meantime, interested readers should spend their winter break acquainting themselves with some of the titles in the compilation for "Marx & Marxism: A Very Select Bibliography" ( http://ratiojuris.blogspot.com/2008/12/marx-marxism-very-select-bibliography.html)

Posted by: Patrick S. O'Donnell | Dec 20, 2008 12:19:47 PM

Rick, I get the sense you have a bee in your bonnet about academics. This is not the first time you've engaged in strange generalizations about the academic mindset. NYU could start a Center for the Study of the Academic Mindset, and you could direct it!

Posted by: Brian | Dec 20, 2008 9:42:20 AM

The comments to this entry are closed.