The Curiously Nonrandom Assignment of Sixth Circuit Senior Judges

Download a copy of this Article:

The Curiously Nonrandom Assignment of Sixth Circuit Senior Judges

Online Original | 108 KY. L. J. ONLINE | Volume 108

The Curiously Nonrandom Assignment of Sixth Circuit Senior Judges

By Clark L. Hildabrand[I]

I.  Introduction

Federal judges occupy an odd position in our republic. On the one hand, these judges have an awesome responsibility to say what the law is. They enjoin presidential acts, strike down state laws, and divine the meaning of constitutional rights. On the other, our Constitution affords these legal elites life tenure, a length of service not granted either to legislators or the executive. This means that federal judges, whom the American people never elected, often will remain in office long after the president who nominated them leaves office. Strengthening the judiciary’s independence, Congress cannot reduce judicial salaries and has long declined to impeach judges when they issue unpopular decisions.

Federal judges, to be sure, tend to agree with each other in the mine run of cases.[2] But the worry remains that—at least in the most politically divisive cases—these unelected and unremovable jurists will turn into “politicians in robes.”[3] Some judges recognize that their “only source of democratic legitimacy is the perception that [they] engage in principled decision-making.”[4] The contention that certain judges do not even follow agreed-upon procedural rules challenges this perception. After all, “[p]ublic confidence in th[e] court[s] . . . is premised on the certainty that the court follows the rules in every case, regardless of the question that a particular case presents.”[5]

This Essay, therefore, examines the assignment of judges in the U.S. Court of Appeals for the Sixth Circuit to see how its assignment rules play out in practice. The first step is a review of the rules themselves. The Sixth Circuit’s history of procedural disputes—which came to a head with the publication of Judge Boggs’s Procedural Appendix in Grutter v. Bollinger[6]—and research about the nonrandomness of judicial assignment provide insight into potential weaknesses in the assignment system. Next, this Essay continues with its chief contribution: an analysis of Sixth Circuit case assignments from 2012 through 2016, a five-year period when the composition of the court remained relatively consistent. This analysis suggests that, for whatever reason, the senior judge assignment system tends to enhance the perceived partisan preferences of senior judges. In other words, senior judges nominated by Democratic presidents tend to sit with other Democratic nominees, and senior judges nominated by Republican presidents tend to sit with other Republican nominees. This preference is most pronounced among Democratic-nominated senior judges and enhances the voting strength of Democratic judges, who are a minority among the active judges on the Sixth Circuit. This Essay considers potential non-nefarious explanations for these tendencies and concludes by weighing how this dynamic will impact the Sixth Circuit as several Republican-nominated judges have taken senior status during the Trump Administration.

II.  A History of Procedural Quarrels

Contrary to what one might expect, judicial assignment on the Sixth Circuit is not random, even if the circuit clerk follows the assignment rules. Nevertheless, the circuit clerk, under the direction of the chief judge, implements various procedures that should have the effect of approximating randomness. The Sixth Circuit “sits over two-week periods scheduled so as to afford all judges at least five weeks between sittings.”[7] “The clerk prepares the calendar for a session before the composition of panels” during these two weeks “is determined.”[8] To approximate randomness, “[t]he clerk balances the calendars by dividing the cases as evenly as possible among the panels according to case type and the district of origin.”[9] There is no wheel that churns out a randomly-assigned three-judge panel for each discrete case. After the circuit clerk divides the cases into groups, the judges are “assigned to panels during the sitting weeks using an automated routine which searches the court’s database to determine which active judges have the longest intervals between sitting pairing.”[10]

While not exactly random for each individual case, this common practice “attempts to equalize co-sits” and “is the functional equivalent of taking a coin and placing it on heads once, then placing it on tails once, and so on, instead of actually tossing it. That is, the practice uses a nonrandom process to create results that are meant to be consistent with randomness.”[11]

But there is a catch. Although “[a]ll active judges are scheduled to sit four consecutive days during one of the two sitting weeks,”[12] senior judges can pick and choose which sittings they attend. To earn his pay each year, a senior judge must perform work that “in the aggregate equals at least 3 months[’] work” of an active judge.[13] Senior judges in the Sixth Circuit have the discretion to work as much or as little as they want the other three quarters of the year. One senior judge may keep an almost full caseload while another teaches a law school class and visits grandchildren.[14] In several circuits, “[t]he calendar preferences of senior judges [a]re given particular weight—a senior judge’s request to sit during a given week in a given month might be accommodated—to encourage those judges to provide as many days of service as possible.”[15] And on the Sixth Circuit, the automated assignment system assigns senior judges after active judges are already in place: “The automated program first pairs active judges based on intervals between pairings and then adds senior circuit judges and visiting judges to pairings, again determined by the longest interval between pairings with either judge in the assembled pairs.”[16]

Despite the best efforts of the assignment system, this process might produce nonrandom results if senior judges tend to sit more or less frequently during the same weeks as certain active judges. For example, a senior judge may enjoy sitting with a judge who is a former clerk or who comes from the senior judge’s own city. The senior judge could then build his sitting calendar around when his judicial friend is likely to hear cases as well.

Additional procedural quirks might add to the nonrandomness of merits case assignment. “In cases not yet assigned to a merits panel, substantive motions are assigned to randomly assembled panels drawn from among active and senior circuit judges and visiting judges designated to sit with the court.”[17] This mostly[18] random assignment system led to problems in Grutter v. Bollinger.[19] That case touched on a politically sensitive issue: affirmative action. “In August 1999,” a Sixth Circuit panel “consisting of Circuit Judges Daughtrey and Moore”—both Democratic appointees—and a visiting senior district court judge “decided an appeal concerning the rights of certain parties to intervene in the district court case underlying the [later Grutter] appeal, but did not address the merits of the case.”[20] When the cases returned to the Sixth Circuit, “a question could have arisen regarding whether these appeals, seeking review of cases already returned to the district court by a panel of this court, were ‘must panel’ cases” under 6th Cir. I.O.P. 34(b)(2).[21] This procedure allows “the original panel [to] determine to hear the appeal or whether it should be assigned to a panel at random.”[22] Under the current rules, “[w]here it is necessary to bring in a new judge to complete the panel,” such as when a panelist was a visiting judge or has retired, “the clerk will draw a name from among the active judges not already on the panel.”[23]

That is not what happened in Grutter. Instead, then-Chief Judge Martin—also a Democratic-nominated judge—decided to augment these panels “by the addition of” himself, “not a randomly chosen judge.”[24] This panel heard all further motions regarding these appeals and sat on an en banc petition, which the circuit clerk normally circulates after fourteen days to the entire court,[25] for five months.[26] During those five months, two Republican-appointed judges took senior status.[27] This delayed circulation of the en banc petition allowed the entirely Democratic-appointed panel to have the case heard before an en banc court that consisted of only three Republican-appointees, and the Democratic-appointed panel won out with a five to four en banc vote.[28] Judge Boggs, frustrated with the lack of procedural transparency, aired these dubious procedural moves by publishing a Procedural Appendix at the end of his dissent.[29] Otherwise, the public would never have learned about the procedural inconsistencies.

III.  The Parameters of the Study

This Essay, therefore, analyzes the assignment of all Sixth Circuit judges—both active and senior—in continuous service from 2012 through 2016 to query whether any procedural abnormalities are occurring behind the scenes. A previous study of all federal circuit courts from 2008 to 2012 found that the Sixth Circuit tended to pack Republican appointees onto three-Republican panels and that divided panels (consisting of both Democratic- and Republican-appointees) leaned Democratic more often than simulations would expect.[30] As former-Judge Posner explained using the opposite set of circumstances, this is what one would expect if a liberal chief judge wanted to waste Republican votes and maximize the effectiveness of Democratic votes.[31]

Although the previous analysis of all circuit courts did not produce statistically significant results for the Sixth Circuit,[32] this Essay uses an approach tailored to the Sixth Circuit. For starters, this Essay uses the political party identification of the president who initially nominated each judge as a proxy for ideology rather than the president under whose watch the judge was ultimately appointed.[33] This change reclassifies Judge White as Democratic and accurately reflects the political compromise between President George W. Bush and Senate Democrats that allowed Michigander Judges White and Kethledge to assume their seats on the Sixth Circuit.[34]

Next, this Essay uses the five years from 2012 through 2016 due to the stability of the Sixth Circuit during this timeframe. Fifteen active judges (six Democratic nominees and nine Republican nominees) and eight senior judges (four from each party) heard cases throughout the five-year period. One senior judge retired from judicial service in 2012, but she participated in only nineteen opinions that year that made their way onto Westlaw.[35] Judge Martin (the Chief Judge during Grutter) retired directly from active service in 2013 in the midst of an investigation into his travel expense reimbursements.[36] Nonetheless, his 517 cases are consistent with the findings of this Essay: active judges have a slight tendency to sit with active judges of the opposite party but a strong tendency to sit with senior judges of their own party.

That brings us to the last major deviation of this Essay from prior study. Unlike other studies, this Essay does not rely on oral argument information from calendar docket sheets.[37] Such an approach would have the weaknesses of failing to capture non-argument cases and potentially overstating the significance of a panel organized to hear arguments in a single must case.[38] Instead, this Essay looks to panel assignments in all Sixth Circuit opinions available on Westlaw.[39] This Essay determines the number of times each Sixth Circuit judge paired with another—a key consideration in the circuit’s assignment system—and then averages out the number of cases by ideological category and active/senior status. This approach accounts for random fluctuations among pairings and the fact that chief judges take a reduced caseload due to their administrative responsibilities. On the whole, Democratic active judges had about the same average cases per judge as Republican active judges: respectively, 887.17 and 891.67 cases per judge. Democratic senior judges sat a tad more frequently and accounted for 53.65% of total case assignments to Republican senior judges’ 46.35%.[40]

This approach adds a different viewpoint on case assignments but, of course, has its own weaknesses. En banc assignments count as a panel assignment for each judge on the en banc panel. This increases the number of cases for active judges across the board, however, and there appear to have been no more than twenty relevant en banc opinions during this period. Additionally, this approach might overstate the importance of cases with multiple iterations or orders or fail to include various unpublished decisions not on Westlaw. This approach, nevertheless, addresses the non-argument cases to a greater degree than an alternative docket-sheet approach. The Essay is not a comprehensive statistical study but provides insight into the most salient features of nonrandomness in Sixth Circuit case assignment.

IV.  Apparent Nonrandomness of Senior Judge Assignment

This Essay finds that active judges pair in mostly random ways even though senior judges do not. Table 1 summarizes the statistics for active judges nominated by a Democratic president.

Table 1: Active Democratic Nominee Statistics

The second column (“Total Cases”) counts every time a judge participated in an opinion. Chief Judge Cole, for example, participated in 727 opinions issued from 2012 through 2016. I then counted how many times the active judge participated in a case with each other active judge and aggregated the numbers by political party of the president nominating the other judges. Thus, Democratic active judges paired with Chief Judge Cole 362 times while Republican active judges paired with him 681 times. This averages to 72.4 pairings per other Democratic active judge (the third column) and approximately 75.667 pairings per Republican active judge (the fourth column) for Chief Judge Cole. The fifth column (“Active Judge Average Difference”) is the difference between these two averages. To finish the example, Chief Judge Cole averaged about 3.267 more pairings per Republican active judge than he averaged with other Democratic active judges.

Table 1 demonstrates that Democratic active judges tend to sit slightly more often with Republican active judges than with other Democratic active judges, which is expected given that the average Republican sits slightly more frequently than the average Democrat. Democratic active judges average only 2.63 more pairings per Republican active judge than per Democratic judge. Using a hypothesis that ideology does not impact pairings in either direction and wherep is significant when less than 0.05, a paired two-tailed t-test shows that the results are not statistically significant. The two-tailed p-value here is 0.338, well outside the realm of statistical significance.

Table 2 gives the equivalent information for active judges nominated by a Republican president but with negative active average differences showing a tendency to sit with Democratic active judges.

Table 2: Active Republican Nominee Statistics

Again, Republican active judges have the slightest of tendencies to sit with active judges of the opposite party. Out of all the pairings that result from an average of 891.67 cases per Republican active judge, a Republican active judge is likely to average only 0.69 more pairings per Democratic active judge than per other Republican active judge. If p is significant when less than 0.05, the two-tailed p-value of 0.716 is not at all statistically significant.

The assignment system thus seems to work well for assigning active judges to sit with other active judges. A couple Democratic judges (Judges Moore and Clay) and several Republican judges (Judges Batchelder, Gibbons, Sutton, and Griffin) even bucked the overall trends for their sets.[41]

The same cannot be said for senior judges. Table 3 gives the statistics for the rates at which Democratic senior judges sit with active judges, with positive numbers representing tendencies to pair with other Democratic judges.

Table 3: Senior Democratic Nominee Statistics

Democratic senior judges are far more likely to pair with Democratic active judges than with Republican active judges. This effect is consistent for all four Democratic senior judges regardless of how many cases they participated in. For example, Judge Daughtrey, the Democratic senior judge with the most sittings, averaged only 52.444 pairings per Republican active judge despite averaging 74.833 pairings per Democratic active judge. If pis significant when less than 0.05, then these pairing differences were statistically significant with a two-tailed p-value of 0.033.

Peering into the panel assignments for Judge Daughtrey even further reveals the effect of this preference on panel ideological balances.[42] Excluding two en banc cases and one evenly split must panel that Daughtrey sat on, Table 4 gives the expected and actual ideological breakdown for Judge Daughtrey’s 501 three-judge panels.[43]

Table 4: Judge Daughtrey Three-Judge Panel Statistics

Judge Daughtrey’s panels had a Democratic majority 74.85% of the time, which is roughly what we would expect if the Sixth Circuit had an even ideological balance. But Democratic nominees had a seven to nine minority among active judges until August 2013 and a six to nine minority after Judge Martin’s resignation. For Judge Daughtrey, the Sixth Circuit might as well have had at least one more active Democratic judge. Her pairings also maximized ideological sway with far more two-Democrat panels than we would expect even if the Sixth Circuit were evenly divided.

A chi-squared test for normality shows that Judge Daughtrey’s pairings were not consistent with a normal distribution. Such a test compares the actual sitting statistics with the expected sitting statistics and considers the likelihood that deviations are simply random. Here, the chi-squared p-values were 0.003159 if an even split is expected; 0.003164 compared to the 7–9 split; and 0.000003 compared to the 6–9 split. All of these p-values indicate that the pairings were not normally distributed.

Nevertheless, Judge Daughtrey’s odd pairings are not the result of, say, Chief Judge Cole assigning himself to sit with Judge Daughtrey in otherwise evenly divided panels to maximize her voting power. Since Chief Judge Cole became chief judge in August 2014 and through the end of 2018, all 45 of Chief Judge Cole and Judge Daughtrey’s non-en banc panels were three-Democrat panels. The opposite was true for other Democratic senior judges. From August 2014 through 2018, Judges Merritt (35 times), Gilman (35 times), and Keith (12 times) had a total of 82 pairings with Chief Judge Cole on three-judge panels. Three of the pairings resulted in three-Democrat panels: two of these pairings came from a single must panel case,[44] and the third pairing was from a long-running death penalty case which Chief Judge Merritt was assigned to years earlier.[45] The remaining 79 pairings with Chief Judge Cole resulted in two-Democrat panels. Chief Judge Cole finally wound up on a three-Democrat panel with a senior judge other than Judge Daughtrey in March 2019 when Judges Keith and Clay joined Chief Judge Cole to deny a stay pending appeal for Gun Owners of America, Inc.’s challenge of the bump stock ban.[46]

Part of the misbalance for Judge Daughtrey comes from her pairing only sixteen times with Judge Batchelder and three times with Judge Boggs (two of which were en banc cases and one of which was a must panel originating from a 2004 decision). Judge Batchelder paired with Judge Daughtrey fewer times than with any other senior judge even though Judge Daughtrey had the second highest case total among senior judges. Since October 2007, during the time Judge Boggs was chief judge, it appears that Judges Boggs and Daughtrey have sat together for, at most, one Westlaw decision[47] that is not an en banc, death penalty, or must panel case—each of which is a category that the Sixth Circuit assignment procedures treat separately from the normal process. This lone 2009 decision, however, was in an appeal docketed in 2006 and argued in 2007. Unless there is a fluke in the automated assignment system or a highly improbable event is occurring, it appears someone is deliberately separating Judges Boggs and Daughtrey, possibly as part of the “avoiding acrimony” approach to assignment that some circuit judges have described.[48]

All four Republican senior judges also have an affinity for ideologically similar active judges as seen in Table 5, where positives indicate a Republican lean.

Table 5: Senior Republican Nominee Statistics

Accounting for the fact that Republican senior judges sat in fewer cases overall than Democratic senior judges (401.75 average cases to 465 average cases), Republican senior judges still had a smaller average difference in ideological pairings. The Republican senior judge pairing results had a two-tailedp-value of 0.066 and thus, unlike the Democratic senior judge results, were not statistically significant if statistical significance is where p is less than 0.05. The ideological pairing trend is stronger for Democratic senior judges than for Republicans.

Nevertheless, the pairing statistics still suggest that Republican senior judges tend to sit more frequently with Republican active judges. The two-tailed t-test assesses the hypothesis that pairings do not vary by ideology in either direction. A one-tailed t-test, in contrast, looks for a correlation in one direction. In other words, a one-tailed t-test assesses the hypothesis that judges tend to pair with ideologically similar judges. With such a one-tailed t-test, the results become statistically significant and produce a p-value of 0.033.

Interestingly, the Republican senior judge with the largest sample of cases (Judge Siler) had the least random assignments among Republicans while the Republican judge with the smallest sample of cases (Judge Norris) had the most random assignments among all senior judges. This runs counter to the intuition, if case assignment is truly random, that increasing the sample size would tend to decrease variances that would create the impression of nonrandomness.

V.  Looking Ahead to the Future of the Sixth Circuit

The Sixth Circuit’s apparent nonrandom assignment of senior judges may begin to favor Democratic-nominated judges less and less. Since the conclusion of the time period analyzed in this Essay, President Trump has appointed five active judges (Judges Bush, Larsen, Nalbandian, Readler, and Murphy) to replace five Republican Sixth Circuit judges who took senior status (Judges Boggs, Batchelder, Rogers, Cook, and McKeague) and one active judge (Judge Thapar) to fill Judge Martin’s long-vacant seat. The death of senior Judge Keith, who tended to hear many cases with his former clerk Judge Clay, will further dilute the Democratic pool of judges. The effect of this transformation in the Sixth Circuit remains unseen and will depend on how often the newly senior judges choose to sit. But if the experience of 2012 through 2016 is any guide, the propensity of senior judges to sit with active judges nominated by a president of the same party might enhance the ideological influence of these Republican senior judges. Plus, Judge Daughtrey’s tendency not to sit with Judges Boggs and Batchelder will become less of a factor in strengthening Judge Daughtrey’s Democratic-pairing lean as new active judges—without any bad blood—have replaced Judges Boggs and Batchelder in the assignment process.

---

[I] I would like to thank my wife for providing comments on this Essay and the editors of the Kentucky Law Journal Online for their edits. All views expressed in this Essay are my own.

[2] See, e.g., Jeffrey S. Sutton, A Review of Richard A. Posner, How Judges Think, 108 Mich. L. Rev.859, 862–66 (2010) (noting the high rate of unanimity on the circuit courts of appeals).

[3] Id. at 860.

[4] Grutter v. Bollinger, 288 F.3d 732, 753 (6th Cir. 2002) (en banc) (Moore, J., concurring).

[5] Id. at 815 (Batchelder, J., dissenting).

[6] Id.at 810–14 (Boggs, J., dissenting). For a study of the controversy created by the allegedly nonrandom assignment of liberal Fifth Circuit judges to desegregation cases, see Jonathan L. Entin, The Sign of ‘the Four’: Judicial Assignment & the Rule of Law, 68 Miss. L.J.369 (1998).

[7] 6th Cir. I.O.P. 34(a)(1).

[8] Id. I.O.P. 34(a)(2).

[9] Id. I.O.P. 34(a)(3).

[10] Id. I.O.P. 34(a)(1).

[11] Mark K. Levy, Panel Assignments in the Federal Courts of Appeals, 103 Cornell L. Rev.65, 104 (2017).

[12] 6th Cir. I.O.P. 34(a)(1).

[13] 28 U.S.C. § 371(e)(3).

[14] See generally Frederic Block, Senior Status: An ‘Active’ Senior Judge Corrects Some Common Misunderstandings, 92 Cornell L. Rev. 533(2007); Albert Yoon, As You Like It: Senior Federal Judges & the Political Economy of Judicial Tenure, 2 J. Empirical Legal Stud.495 (2005).

[15] Levy, supra note 11, at 68–69.

[16] 6th Cir. I.O.P. 34(b)(1).

[17] 6th Cir. I.O.P. 27(a)(1).

[18] As with merits panels, senior judges do not have to participate each quarter of the year in the motions panel process. And active judges can sometimes take a quarter off from motions panel service, so the pool of judges for the motions panels is not consistent.

[19] 288 F.3d 732 (6th Cir. 2002) (en banc).

[20] Id. at 811 (Boggs, J., dissenting).

[21] Id.

[22] 6th Cir. I.O.P. 34(b)(2).

[23] Id. I.O.P. 34(b)(3). Senior judges also remain assigned to all subsequent proceedings in death penalty cases that they previously participated in but can elect not to receive new death penalty case assignments. Id. I.O.P. 22(b)(1).

[24] Grutter, 288 F.3d at 811 (en banc).

[25] See 6th Cir. I.O.P. 35(d)(2).

[26] Grutter, 288 F.3d at 811–13.

[27] Id. Similar motions-panel shenanigans have occurred on the Seventh Circuit. See Alison Frankel, At 7th Circuit, Unseen Judicial Mechanics Drive Decisions: New Paper,Reuters (Dec. 3, 2014), http://blogs.reuters.com/alison-frankel/2014/12/03/at-7th-circuit-unseen-judicial-mechanics-drive-decisions-new-paper/[https://perma.cc/X5DQ-2VFB] (“The merits case was not, however, randomly assigned to a new panel of appellate judges as it would be in most federal circuits. Posner, Kanne and Rovner – the same three judges who had previously dismissed Motorola’s case based just on motions briefing – opted to retain authority over Motorola’s merits appeal.”). And certain Sixth Circuit judges have misused their power to issue single-judge stays, see 6th Cir. I.O.P. 22(d), and avoided the normal merits panel process to undermine implementation of the death penalty. See Jonathan Adler, Sedley Alley’s Last-Minute Stay, Volokh Conspiracy (July 17, 2006), http://volokh.com/posts/1153144938.shtml  [https://perma.cc/MLV8-GWUB] (recounting Democratic-appointee Judge Merritt’s single-judge stay on the eve of an execution and various en banc maneuverings).

[28] Grutter, 288 F.3d at 735.

[29] Id. at 810-14 (Boggs, J., dissenting).

[30] Adam S. Chilton & Marin K. Levy, Challenging the Randomness of Panel Assignment in the Federal Courts of Appeals, 101 Cornell L. Rev.1, 39, 53 (2015).

[31] Richard A. Posner, Divergent Paths: The Academy & the Judiciary 243 (2016).

[32] See Chilton & Levy, supra note 30, at 41.

[33] Id.at 4–5 (using the appointing president).

[34] See Neil A. Lewis, Deadlock on Appeals Court Judges Ends, N.Y. Times (June 13, 2008), https://www.nytimes.com/2008/06/13/washington/13brfs-DEADLOCKONAP_BRF.html [https://perma.cc/VHE8-5PU2].

[35] Cf. In re Vertrue Inc. Mktg. & Sales Practices Litig., 719 F.3d 474, 476 n.** (6th Cir. 2013) (“Judge Kennedy participated in oral argument in this case but did not participate in this decision due to her retirement.”).

[36] See Debra Cassens Weiss, 6th Circuit Judge Retired Amid Probe of Travel Expenses; Allegations Referred to DOJ, ABA J. (Jan. 21, 2014), http://www.abajournal.com/news/article/6th_circuit_judge_retired_amid_probe_of _travel_expenses_allegations_referre/ [https://perma.cc/NZ5A-FWFM].

[37] Chilton & Levy, supra note 30, at 24–25.

[38] Id. at 26–28.

[39] I searched all opinions available in Westlaw’s Sixth Circuit opinion archive using the Advanced Search’s Panel option to isolate which judges participated in deciding each case. This search does not include three-judge redistricting cases where the chief judge assigns a circuit court judge to lead a panel that includes two district court judges. The two most recent redistricting cases involved Democratic Sixth Circuit Judges Moore and Clay leading 2–1 Democratic panels in ruling against the Republican-created maps of, respectively, Ohio and Michigan. See Ohio A. Philip Randolph Inst. v.Householder, 2019 WL 1969585 (S.D. Ohio May 3, 2019); League of Women Voters of Mich. v. Benson, 2019 WL 1856625 (E.D. Mich. Apr. 25, 2019).

[40] A few of the thousands of opinions misspelled the panelists’ names, which affected how Westlaw listed the panelists. For 2012 through 2016, this Essay has identified three opinions that spelled “Daughtrey” as “Daughtery,” one opinion that spelled “Daughtrey” as “Daughtry,” and four opinions that spelled “Suhrheinrich” as “Surheinrich.” This Essay correctly categorizes the pairings in these cases despite the obvious scrivener’s errors.

[41] While most active judges tend to sit with judges nominated by presidents of the opposite party, these judges tended to sit more frequently with judges nominated by presidents of the same party.

[42] Judge Daughtrey sat infrequently with Judge Martin (16 times) and sat more frequently with visiting Republican Judges Zouhary (15 times), Cleland (11 times), and Maloney (14 times) than with visiting Democratic Judge Economus (6 times). And senior judges rarely sit with each other due to the assignment procedures; Judge Daughtrey did not sit with two of the three other Democratic senior judges (Judges Gilman and Keith) and one of the four Republican senior judges (Judge Norris) during this time period. These tendencies, if anything, should have tilted Judge Daughtrey’s panels in a Republican direction.

[43] The % Total Active Cases and % Total Both Active and Senior Cases statistics include only active and senior judges on the Sixth Circuit during the entirety of 2012 through 2016. Thus, these figures do not include Judges Kennedy and Martin or the assorted judges who sat by designation on the Sixth Circuit.

[44] Tackett v. M & G Polymers USA, LLC, 811 F.3d 204 (6th Cir. 2016) (Chief Judge Cole paired with both Judges Keith and Merritt).

[45] Issa v. Bradshaw, 904 F.3d 446 (6th Cir. 2018) (Chief Judge Cole and Judge Merritt joined Judge Moore).

[46] Gun Owners of America, Inc. v. Barr, 2019 WL 1395502 (6th Cir. Mar. 25, 2019).

[47] Ortiz v. Jordan, 316 F. App’x 449 (6th Cir. 2009) (ruling, over a Judge Daughtrey dissent, that prison officials were entitled to qualified immunity).

[48] Levy, supra note 11, at 90.

Concessions Causing Detrimental Impacts on the Original Vision of National Parks

Download a copy of this Response:

Concessions Causing Detrimental Impacts on the Original Vision of National Parks Download

Student Note | 107 KY. L. J. ONLINE | Volume 107

Concessions Causing Detrimental Impacts on the Original Vision of National Parks

Kelsey Bryant[I]

“Scenery is a hollow enjoyment to the tourist who sets out in the morning after an indigestible breakfast and a fitful night’s sleep on an impossible bed.”[2]

I.  Introduction

Stephen T. Mather, the first Director of the National Park Service (NPS), created this vision for National Park concessions.[3] The present-day Commercial Services Program maintains this vision since Mather’s quote is displayed on the home page of their website today.[4] The NPS promises its visitors that they will get to travel and experience the land and water that John Wesley Powell and Lewis and Clark once traveled[5] with the luxuries of a resort and “high-quality visitor services”[6]—a comfortable bed to lay your head on at night, convenient meals, and even transportation to go wherever you want.[7] This might seem like a great way to experience the wonders of our national parks, but these hospitality benefits come at some cost.

Professor Joseph L. Sax illustrates that the Park Service created a vision geared toward “the windshield tourist”[8] and comfort for visitors, where concessionaires create illusory wilderness experiences that do not showcase the real rigors and power of nature to people.[9] After World War II, there was an accelerated use of national parks that continues to increase.[10] At this time, policies started to develop that encouraged tourism and public use of the parks, specifically the establishment of concessions that accommodated visitors through lodging, restaurants, and entertainment services.[11] By approving concession demands and fulfilling park visitors’ desires for integral features such as hotels, cabins, and laundromats in almost every national park, problems of congestion, and the resulting increase in facilities and services, threaten the parks’ ability to achieve their original purpose.[12]

Although the Park Service has broad discretion in its concession management,[13] there is significant debate about whether it is exercising that discretion wisely in light of the agency’s mission. With these continuing pressures, debates regarding park use will continue, and questions of where to draw the line for concessionaires should be a priority to our NPS. This Note argues for urgent reevaluation of concessions management by the NPS. Even though today’s visitors demand more services and entertainment, new boundaries and policies should be implemented that encourage the priority of preservation in our National Parks.

Section I briefly examines the history of national parks, along with how concessions became increasingly popular and attracted new crowds of people. This section also includes a discussion of the overarching debate in which the national park concessions issue lies: whether the primary purpose of national parks is preservation or use and enjoyment. Section II explores specific problems within national park concessions that confront national park preservation today that our government can get in front of, such as the ongoing fight against water bottle sales in national parks. Finally, Section III of this Note proposes a legislative solution to solve the issue of concessions having such a detrimental impact on the original vision of the parks system.

II.  Background

A. History of National Parks

 Most of the nineteenth century was devoted to allocation and privatization of lands, but the conservation movement soon sparked federal policy to incorporate the idea that some lands should be retained by the public.[14] Starting in 1817, the federal government allocated public lands containing live oak and red cedar for naval construction and then, in in 1832, reserved Hot Springs, Arkansas, which was known for its medicinal value.[15] Contributing to this movement, the Supreme Court in United States v. Gratiot upheld federal leasing of lead mines.[16]

The first significant success for allocation of land for preservation purposes was Abraham Lincoln and Congress’ decision in 1864 to place Yosemite Valley and Mariposa Big Tree Grove under the protection of California.[17] Conservationists and naturalists, such as John Muir, Clarence Dutton, and John Wesley Powell, were able to reach the public by advocating for protection through published writings that became the driving force behind the creation of several national parks.[18] Eight years later, Congress and Ulysses S. Grant made history when they reserved two million acres of public land to create Yellowstone National Park.[19]

The proliferation of national parks showcased the “contemporary intellectual, social, and economic changes” of the public appreciation for the natural wilderness, a longing to “escape the increasingly urban places that resulted from industrialization, and the popularization from the automobile.”[20] The sparked awareness and need for preservation resulted in the founding of the Appalachian Mountain Club in 1876, described as “one of the first private conservation organizations” with a goal to preserve and protect eastern wilderness areas.[21] The federal government followed the movement by establishing the United States Geological Survey in 1879, a bureau within the Department of the Interior (DOI) responsible for surveying and mapping lands in national territories.[22] President Roosevelt created five new national parks during his administration along with many other sources of public lands, such as national forests and monuments.[23]

Even though Yellowstone was named a national park in 1872, the NPS was not founded until 1916.[24] During this gap of time, the parks lacked centralized management and duties were shifted between the Departments of War, Agriculture, and Interior.[25] According to provisions of an 1894 Act, the Secretary of the Interior was to make regulations providing “for the preservation . . . of all timber, mineral deposits, natural curiosities, or wonderful objects within said park.”[26] The Interior struggled to protect the parks from abuses such as private commercial interests that took advantage of the parks and the public.[27] These private commercial interests saw “profit potential in the parks and began to exploit their resources,” often without being monitored.[28] Consequently, national parks lacked protection and funding, sparking doubts for their future.[29]

The passage of the Antiquities Act in 1906, which gave the President authority to declare national monuments, resulted in a substantial increase in national parks.[30] By 1916, the Interior Department was responsible for fourteen national parks and twenty-one national monuments, although Congress still lacked an organization or policy guidance that would manage them.[31] Preservationists did not push for park service reformation until the defeat of the Hetch Hetchy Valley in Yosemite National Park.[32] In order to provide water and power to San Francisco, Congress passed legislation allowing Hetch Hetchy Valley to be dammed, causing preservationists to become alarmed and support the creation of a “comprehensive management scheme.”[33]

Finally, there was a breakthrough in 1916 when Congress passed and President Woodrow Wilson signed the NPS Organic Act, which created the NPS within the DOI.[34] Congress gave the NPS a mission to manage the parks in a manner that would “conserve the scenery and natural and historic objects and the wildlife therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.”[35] This mission statement created an ongoing pressure for NPS, because it left a responsibility to the Park Service to provide for use and enjoyment of the parks and, importantly, to do so in a way that would leave them unimpaired for the enjoyment of future generations.

B. Concessions

The continued existence of the parks depended on the number of people who utilized them, pushing preservationists along with railroad officials to be interested in how to increase park tourism and outdoor recreation.[36] However, to counter the influence of the emerging utilitarian philosophy, greater use of the parks was needed to continue their existence.[37] Therefore, the scenic preservation was compromised by building additional roads, hotels, and other visitor facilities.[38] Self-defeating management coupled with the need for increased use led to the creation of the Organic Act.[39] This gave the Secretary of the Interior authority to make rules and regulations as necessary for use and administration of national park areas and also gave the Secretary power to develop various visitor facilities in the parks through concessionaire leases.[40]

By the end of World War II, park visitation had exceeded all expectations to the point that the Park Service was unable to accommodate all visitors.[41] Throughout the 1950s and 1960s, Congress allocated over one billion dollars to the Park Service to provide accommodations for the increased number of visitors.[42] However, by 1965 Congress’s ideals started to shift and so stated that the Park Service should only allow concessions within parks if they were “consistent…with preservation…[of] park values.”[43] The National Park Concessions Policy Act of 1965 (hereinafter “The Act”) was an effort to deal with park amenities with a preservation-based policy: “[i]t is the policy of Congress that the development [of public accommodations] shall be limited to those that are necessary and appropriate for public use and enjoyment . . . and are consistent to the highest practicable degree with the preservation and conservation of the areas.”[44]

Even though the Act seems focused on preservation, it has brought many challenges in balancing the Park Service’s need to provide adequate services and facilities for park supporters while protecting the parks for future generations.[45] Practices allowed by the Act resulted in less money being spent on protection and preservation.[46] The Act also provided businesses with “long-term contracts, exclusivity, bidding advantages and the opportunity to profit from any expenditures made on park facilities if they entered into concessions with the Park Service.”[47]

After the Park Service encountered an array of problems, Congress enacted the National Parks Omnibus Management Act of 1998 (hereinafter “The Omnibus Act”).[48] The Omnibus Act included “provisions designed to reform the concessions industry, promote local fund raising activities, demand fiscal accountability by park managers, encourage cooperative agreements with universities and the scientific community, and establish new criteria for the admission of new parks to the system.”[49] The Omnibus Act supposedly ended all of the preferential rights concessionaires had enjoyed under the Concessions Policy Act.[50] For instance, the Concessions Policy Act authorized the parks to retain concession fees themselves[51] rather than sending the fees straight to the general treasury fund as required under the Omnibus Act.[52] Even though the Omnibus Act was a step in the right direction, there are still problems that arise out of concessions, such as overcrowding of visitors.[53] This causes an increasing amount of wear and tear on the parks including traffic jams, pollution from off-road vehicles, and pollution from scenic overflights.[54]

C. Preservation v. Use and Enjoyment

The Organic Act deliberately entails a conflicting “dual mandate” that creates tension between preserving an area and managing it for public use and enjoyment.[55] The dual mandate provides two priorities for park management that NPS must balance depending on the current needs of the park.[56] Historically, the NPS “championed preservation over economic use,” but the demanding pressures of “recreational and cultural responsibilities” led to a shift.[57] This Note showcases how the dual mandate requires balance, but preservation should be the dominant goal of national parks and dictate the policies surrounding concessions.

From prior cases, it is obvious that judicial review and other such tools of ensuring compliance with the Organic Act are not powerful enough to “moderate the anthropogenic pressures that risk the long-term impairment of our national parks.”[58]The NPS lacks a statutory amendment that explicitly clarifies that the NPS favors the conservation mission, prioritizing preservation over potentially damaging use and enjoyment.[59] Unlike the Wilderness Act or the Wild and Scenic Rivers Act, which are well-known to give clear priorities to preservation and natural resource values, national parks are left continually fighting the battle of those in favor of preservation versus those who seek to only enjoy or use the land, no matter how much damage the activity creates.

Development of concession facilities falls under the use prong of the dual mandate.[60] Concessions in parks contribute to the overabundance of crowds, promoting increased use of parks or new types of accommodations or recreation.[62] Rather than just providing the necessary amenities for the public to enjoy the “scenery, natural objects, and wildlife” while visiting the parks, concessionaires tend to overreach their goals, harming any environment in their path.[63] Certain types of concession facilities or means of use are unnecessary to the public. Even though Congress adopted the “necessary and appropriate” language in the Concessions Policy Act of 1965, Congress did not define these terms, giving no teeth to this provision.[64]

III.  Problems that Exist in National Parks Due to Less Restrictive Policies on Concessions

Congress needs to address the continual management and regulation challenges faced by the NPS. In particular, underfunding continues to plague the national parks, as problems such as overcrowding, encroaching development, and pollution tend to add to the deteriorating budget.[65] The increasing pressure on the NPS by visitors and recreational users has industrialized many of the parks, in turn creating long-term environmental harm as well as management and budget deficiencies.[66] Below are examples of concessions that continue to cause harmful effects to the national parks that should be limited or even eliminated in order to preserve the original vision for national parks.

A. What’s in Our National Parks’ Trash Cans?

Since National Parks attract millions of visitors from around the world, one consequence of national park concessions is the 100 million pounds of garbage a year those visitors generate, which mostly ends up in landfills.[67] The National Parks Conservation Association recently put together a report on what is in the trash cans in national parks.[68] Most of what the Association found is what you would find in your household trash and recycling bins; “[p]lastic bottles, paper cups, plastic bags, food [sic] and food wrappers” are some common examples.[69] Unfortunately, the NPS currently has little control over what people bring in or even buy from concessionaires in the national parks. Statistics show that 82% of visitors at national parks consume food or drinks while in the parks and only about half (53%) purchase these items within the park.[70]

National Parks could save significant expenses if they did not have to spend their resources removing substantial amounts of trash. The NPS has to use taxpayer dollars to manage the burden of disposing and recycling all plastic, including plastic water bottles.[71] Dealing with the removal of trash takes away from funding other services. The Yellowstone National Park environmental protection specialist concedes that the park “spends half a million dollars annually to remove 3,000 tons of trash that enter the park each year.”[72] Similarly, Denali National Park “spends about $75,000 a year to get rid of the 140 tons of garbage that visitors bring into the park.”[73] Unfortunately, large quantities of trash and costs associated with the removal process render constant maintenance challenging.[74]

Even though energy use and fuel consumption are the main causes of climate change, landfills are also to blame.[75] Landfills produce 20% of the potent greenhouse gas called methane, which has been proven to cause “[twenty-five] times more global warming than carbon dioxide.”[76] Since most waste from national parks ends up in landfills, this is a starting point where our government can make a difference in our environment.[77] National parks such as Alaska’s Denali are as far away as fifty miles from the closest recycling plant, which is sometimes not even able to handle Denali’s large amounts of recycling loads.[78] Therefore, eighty percent of Denali’s trash ends up in landfills.[79] However, recycling usually only delays plastic’s inevitable destination: a trash can.

As we all have seen at some point, much of pollution and trash end up harming and even killing some of our Earth and parks’ most precious species. Much of our pollution, which the parks contribute to, has been “discovered in the mouths of whales and bellies of dead seabirds that mistook it for food.”[80] Some of these species are even on the Endangered Species List, which the NPS is supposed to prioritize and do everything in its power to obey and promote their protection.[81] Also, pollution often affects the visitor experience, blinding travelers to the aesthetic beauty of the park. As we saw in the study above, concessions add to this pollution by serving their food and drinks in disposable materials such as plastic water bottles. It is contradictory to allow concessions to aid the pollution problem by serving waste products to NPS visitors.

i. The Water Bottle Controversy

By reversing a ban on bottled water sales at national parks, was the Trump administration attempting to reduce plastic pollution, or was there another goal?[82] Does this move reflect the NPS commitment to providing a safe and world-class visitor experience? Does it demonstrate that corporate agenda and lobbying always win, or that plastic pollution is not a global problem, or that our government is not concerned about climate change? By reversing this ban, our government sent visitors a contradictory message that the Green Parks Plan, a strategic NPS plan centered around sustainability and recycling, is not taken seriously.[83]

The ban’s reversal was approved three weeks after David Bernhardt was approved as Deputy Secretary of the Interior.[84] Bernhardt is a prior lobbyist with Brownstein Hyatt Farber Schreck, a law firm that represents Nestle Water (Nestle distributes Deer Park brand as well), one of the most dominant water bottle distributers in the United States.[85] This conflict made many senators question Bernhardt’s bias during his confirmation hearing, because his past corporate affairs contradict the DOI’s goal and “regulations to promote clean air and water.”[86] Publicists exposed that the Trump administration (specifically the DOI), including Bernhardt, coincidentally worked with the same industry to sell their brand of water in the parks.[87]

The water bottle industry’s arguments against the ban focused on the health and safety of the three hundred million annual visitors to the NPS’s 411 sites.[88] When the plastic water bottle ban was in place, the NPS spent millions of dollars constructing a sufficient amount of water stations at which people could fill their own water bottles for no cost.[89] Parks such as Zion National Park also sell reusable bottles that visitors are able to take home, and those sales increased by seventy-eight percent when the ban took place.[90] Therefore, these parks have proved the water bottle industry wrong, as the parks are able to supply purified water to its visitors and even continue to make a profit despite worry amongst some critics.[91]

The decision to ban water bottles was ultimately based on the statistic that at least fifty billion plastic water bottles are thrown away by Americans annually.[92] About twenty billion oil barrels were used to produce this high quantity of water bottles, the production of which emitted greenhouse-gas pollutants.[93] The Interior Department spoiled a successful and popular “opportunity to improve the environment on the millions of acres that parks occupy,”[94] sending out a damaging and contradictory message to America that portrays where their priorities lie. The ban could decrease plastics going to the landfills, help reduce the amount of greenhouse gases generated by the manufacture of plastic bottles, reduce litter, protect wildlife against plastic ingestion, and save visitors money via free refilling stations.[95]

B. Turn Off Your Engines

Air pollution in national parks continues to increase as vehicles, snowmobiles, jet skis, terrain vehicles, and airplane/helicopter oversights emit nitrous oxide and hydrocarbons.[96] These are all examples of transportation that concessionaires rent out to visitors for additional amenities and activities in the parks. Such air pollution has damaged the scenic beauty of the parks and disturbed plant and animal life. In the face of significant overcrowding, some parks such as Grand Canyon National Park and Zion National Park have prohibited automobiles to try to lessen the congestion and pollution.[97] In the recent past, the NPS, in an effort to alleviate the harmful effects of gas emissions, banned snowmobiles in Yellowstone and Grand Teton National Park.[98]

Just like snowmobiles, Congress found that scenic over flights that concessionaires sell contribute to noise pollution and negatively impact the air quality and wildlife.[99] From April to September 2015, about 650 tourists took advantage of the helicopter oversight concession.[100] The helicopters burden 99.75 percent of Glacier National Park’s visitors, yet only to allow tourists to see a miniscule piece of the park.[101] The NPS’s Natural Sounds and Night Skies Division have proven through many studies that aircraft noise negatively burdens surrounding wildlife as well.[102]

Sounds plays a significant role in ecosystems, as many activities such as “finding desirable habitat and mates, avoiding predators, protecting young, and establishing territories are all dependent on the acoustical environment.”[103] Furthermore, studies show noisy environments cause animals stress; they have found that species such as the Sonoran pronghorn try to stay away from areas disturbed by military jets, and the gleaning bat is not able to hunt because of the noise from roads.[104] These effects should be carefully considered when humans generate noise in national parks, as these sounds can have negative implications on the well-being and vitality of wildlife populations within a park or even an entire ecosystem.

In 2000, Congress passed the National Parks Air Tour Management Act, which required the FAA and NPS to create a detailed plan for each park that hosts more than 50 overflights annually.[105] The agencies were then responsible to “incentivize quieter technology, limit flights, even ban them altogether.”[106] However, the problem is that the FAA has sole authority over civilian air travel in the United States and is the leading agency under the Act; since the Act does not give a deadline for the agencies to follow, there has not been a single plan implemented since its passage, leaving no change in the conduct of the overflight concessionaires.[107] In a 2006 Government Accountability Office report, the DOI blamed the Act’s lack of progress on the agencies’ differing mission and policies.[108] The agencies have not followed Congressional intent to carry out the Act’s purpose and just put the responsibility of figuring out the significance of noise pollution on the back burner. Sadly, air pollution in some of the western parks has reached the same drastic levels as those in Los Angeles.[109] A domino chain of effects for both animals and humans is created when human-caused noise sources stress the interconnecting system of resources that the wildlife depends on for survival. Visitors also seek natural sounds, as they travel to escape their loud and urban lives.

IV.  Preserve National Parks’ Ordinary Goals

The idea that a variety of concession services and amenities are necessary in order to attract tourists, to ensure that national parks’ existence is not threatened, has faded. From the overcrowding tourists that fill each park, it is evident that parks are no longer at the mercy of providing extensive concession services. In order to get a gratifying experience, visitors, Congress, and even the Park Service believe that the parks should be full of the modern amenities they enjoy on a daily basis, such as “fast food, laundromats, shopping facilities, and electronic entertainment.”[110] In light of these increasing pressures from the public, the national parks need “reinforcement of a national re-commitment to conservation.”[111]

A. Small Change with a Huge Impact

The needed change in national parks “depends directly on the inconsistent generosity of Congress, the strength of advocacy organizations, the disposition of the current President, and political winds.”[112] An amendment should be put in place that clearly and explicitly prioritizes conservation of the parks’ resources, landscape, and wildlife first, and promotion of human enjoyment second. It is obtainable for both goals to be compatible, but the law should require that conservation take priority in every decision made. Rather than to promote commercialism and tourism, the Organic Act can be construed to support this interpretation since the enjoyment clause entails a condition on any use that the parks remain “unimpaired” for the future.[113] Also, the fact that the “conservation” clause is before the “use” clause, indicates legislators emphasized preservation and conservation as the primary goal.[114]

A simple amendment to change the language of the Organic Act would clarify priorities of the dual mandate and take away the tension between preservation and use and enjoyment. The amendment would add that conservation and preservation are given the highest priority at all times and that use and enjoyment should be compatible with the goal of preservation. This will give the NPS and courts a clear road map to resolve and control the present and continual conflicts that center around the dual mandate. The change would result in less litigation over concession policies because the mandate would be clear in the future and the NPS would be able to limit harmful human impacts and have conservation as its paramount focus. Our focus needs to be on conservation for future generations since we only get one chance at succeeding at that task.

An objection may be from those who disagree with this Note’s view that preservation is paramount in the Organic Act and believe the dual mandate does not place conservation as a higher priority than enjoyment. Critics who take this stance view that the dual mandate was intentionally to create flexibility for the NPS, legislators, and courts. Thus, both goals of the Act are “interdependent and simultaneous” and prioritizing one above the other would contradict with the “valid political compromise that must be respected.”[115] Critics of preservationists also argue that putting conservation ahead of enjoyment is “elitist and undemocratic.”[116] Preservationist Joseph Sax has been criticized for this in his own works such as when he stated that “access to the national parks should be limited to those who have the sensitivity and willingness to encounter nature of its own terms.”[117] These are all valid objections that have been made previously by many critics, and as such, it is unlikely that such a reform of the Organic Act will be easily accomplished and passed even if there is a progressive Congress in place. However, this idea and debate needs to be expressed by the public and organizations, as it might be our only hope to achieve a final resolution of the ongoing issue.

B. A Step in the Right Direction

Another simple proposal to alleviate the tension of the dual mandate consists of the administration, at a minimum, adopting policies that err on the side of preservation. Instead of sending out a message, as our government has previously done by revoking the ban of water bottles in certain national parks, the public, national parks, and government need to be building a foundation. In order to start making this movement, it is essential that the NPS engage the public by informing them of the importance of preserving our national parks for the future. It is also important that national advocacy organizations that support conservation of national parks, such as the Sierra Club, keep the public informed and involved in the movement. This could consist of different community programs that promote protection of the parks, such as clean up groups, educational programs, and replanting different species of plants. This will help our legislators see the need and desires of the public – that the public wants a change in priorities of the Organic Act.

If such a clarifying amendment were enacted, it would allow the NPS and national parks individually to enact policies to aid the problems discussed previously. For example, parks could mandate that there should be no disposable waste served by concessionaires (plastic, paper, etc.) or even reissue the plastic water bottle ban they already started. They would also be able to limit off road vehicles and oversight tours to a minimum or even eliminate them if such policy is necessary to preserve the wildlife and noise pollution within the parks.

V.  Conclusion

Many problems such as waste and noise pollution, gas emissions, the daily wear and tear from overcrowding of tourists, and unnecessary concessions are putting the preservation of national parks in jeopardy.The two goals of conservation and enjoyment of the parks have caused many conflicts throughout the national parks’ history, as the Organic Act mandate requires the NPS to accommodate both objectives. This Note takes the position that a simple amendment to the Organic Act that clarifies that preservation is of the utmost priority will take away the duality tension. In furtherance, an amendment such as this will allow the parks and the NPS to achieve successful policies such as the banning the sale of water bottles in the parks. This would send out a message to the public that the purpose of the parks is to be preserved for future generations. As such, it is up to the public, advocacy organizations, the NPS, and Congress to continue to fund and reform our national parks so that the concession industry acts in a more accountable and effective manner with the purpose of preservation at the forefront at all times.

---

[I]  J.D. Candidate 2019, University of Kentucky College of Law.

[2] U.S. Dep’t of the Interior, Commercial Services Program, Nat’l Park Serv., https://www.nps.gov/orgs/csp/index.htm [https://perma.cc/TQY7-DU39] (last updated Oct. 30, 2018).

[3] Id.

[4] Id.

[5] Joseph L. Sax, Mountains Without Handrails: Reflections on the National Parks 98 (1980).

[6] See U.S. Dep’t of the Interior, supra note 2.

[7] See generally Ensuring High Quality Visitor Services, Nat’l Park Serv., https://www.nps.gov/subjects/concessions/index.htm [https://perma.cc/DTQ4-HWG6] (last visited May 25, 2019).

[8] A “windshield tourist” is an individual who traverses the park without leaving their car.

[9] See Sax, supra note 5, at 99–100.

[10] Michael Mantell, Preservation and Use: Concessions in the National Parks, 8 Ecology L.Q. 1, 2 (1979).

[11] Id. at 2–3.

[12] Id. at 3.

[13] See U.S. Dep’t of the Interior, Ensuring High Quality Visitor Services, Nat’l Park Serv., https://www.nps.gov/subjects/concessions/index.htm [https://perma.cc/KS3Q-GGP4] (last updated Oct. 10, 2018) (“[T]he Commercial Services Program administers 500 concession contracts….”).

[14] James Rasband et al., Natural Resources Law and Policy 146 (3rd ed. 2016).

[15] Id.

[16] United States v. Gratiot, 39 U.S. 526, 538–39 (1840).

[17] “Yo-Semite Valley,” and “Mariposa Big Tree Grove,” ch. 184, 13 Stat. 325 (1864). California later re-ceded the land to the federal government.

[18] Brief History of the National Parks, Library of Congress, https://www.loc.gov/collections/national-parks-maps/articles-and-essays/brief-history-of-the-national-parks/ [https://perma.cc/ZTS8-U9JR] (last visited Oct. 17, 2017).

[19] Yellowstone National Park Protection Act, ch. 24, 17 Stat. 32 (1872).

[20] Brief History of the National Parks, supra note 16.

[21] Id.

[22] Id.

[23] Theodore Roosevelt and Conservation, Nat’l Park Serv., https://nps.gov/thro/learn/historyculture/theodore-roosevelt-and-conservation.htm [https://perma.cc/932Y-7KVY (last updated Nov. 16, 2017).

[24] Brief History of the National Parks, supra note 16.

[25] Id.; U.S. National Parks–In the Beginning, Nat’l Geographic (May 26, 2010), https://www.nationalgeographic.com/travel/national-parks/early-history [https://perma.cc/HVM8-JW7D].

[26] The Lacey Act of 1894, ch. 72, § 4, 28 Stat. 73 (codified at 16 U.S.C. § 26 (1976)).

[27] U.S. National Parks–In the Beginning, supra note 23.

[28] Id.

[29] See Rasband et al., supra note 12, at 146.

[30] Mark Squillace, The Monumental Legacy of the Antiquities Act of 1906, 37 Ga. L. Rev.473, 488–89 (2003).

[31] Rasband et al., supra note 12, at 146—47.

[32] Richard J. Ansson Jr. & Dalton L. Hooks Jr., Protecting and Preserving out National Parks in the Twenty First Century: Are Additional Reforms Needed Above and Beyond the Requirement of the 1998 National Parks Omnibus Management Act?, 62 Mont. L. Rev. 213, 218 (2001).

[33] Id.

[34] National Park Service Organic Act of 1916, ch. 408, 39 Stat. 535 (1916) (codified as amended at 54 U.S.C.S. § 100101 et seq.).

[35] Id.

[36] Mantell, supra note 8, at 10.

[37] Id.

[38] Id. at 12.

[39] Id. at 13.

[40] National Park Service Organic Act of 1916, ch. 408, § § 2, 3, 39 Stat. 535 (1916) (codified as amended at 54 U.S.C.S. § 100101 et seq.).

[41] Mantell, supra note 8, at 17.

[42] Id. at 22.

[43] Id. at 28.

[44] National Park Concessions Policy Act of 1965, ch. 6, 79 Stat. 969 (codified as amended at 54 U.S.C.A. § 101912 (b) (2018)).

[45] Alfred Runte, National Parks: The American Experience, 173 (2d ed. 1987).

[46] Id.

[47] Ansson & Hooks, supra note 32, at 220.

[48] National Parks Omnibus Management Act of 1998, Pub. L. No. 105–391, 112 Stat. 3497 (codified as amended at 54 U.S.C.S. § 100701 et seq. (2018)).

[49] Ansson & Hooks, supra note 32, at 222–23.

[50] 16 U.S.C.A § 5952(7) (1998);Concessions Policies Act of 1965, Pub. L. No. 89-219, § 4, 79 Stat. 969.

[51] Concessions Policies Act of 1965 § 4.

[52] 16 U.S.C.A. § 407(c) (1998).

[53] See Michael Satchell, National Parks in Peril, U.S. News & World Rep. (July 21, 1997), https://www.usnews.com/news/articles/2016-08-19/national-parks-in-peril.

[54] Id.

[55] Denise E. Antolini, National Park Law in the U.S.: Conservation, Conflict, and Centennial Values, 33 Wm. & Mary Envtl. L. & Pol’y. Rev. 851, 861–62 (2009).

[56] See id.

[57] Id. at 863–64.

[58] Id. at 885.

[59] Id. at 885, 912.

[60] Id. at 36.

[62] Id. at 36.

[63] Id.

[64] Concessions Policies Act of 1965, Pub. L. No. 89-219, § 4, 79 Stat. 969.

[65] Antolini, supra note 3, at 876–87.

[66] Id. at 877–80.

[67] Greta Weber, Iconic National Parks Move to Eliminate Landfill Trash, Nat’l Geographic (June 29, 2015), http://news.nationalgeographic.com/2015/06/150629-zero-landfill-national-parks-yosemite-grand-teton-denali/ [https://perma.cc/59RB-EBUG].

[68] Jamie Varner, What’s in National Parks’ Trash Cans–and What You Can Do, Nat’l Parks Conservation Ass’n (Aug. 16, 2016), https://www.npca.org/articles/1289-what-s-in-national-parks-trash-cans-and-what-you-can-do [https://perma.cc/UAA3-V3R4].

[69] Id.

[70] Id.

[71] Darryl Fears, National Parks Put a Ban on Bottled Water to Ease Pollution. Trump Just Sided with the Lobby that Fought It., The Washington Post (Aug. 17, 2017), https://www.washingtonpost.com/news/energy-environment/wp/2017/08/17/national-parks-banned-bottled-water-to-ease-pollution-trump-just-sided-with-the-lobby-that-fought-it/?utm_term=.e9b5fc5104d9 [https://perma.cc/KR3D-JACPhttps].

[72] Chris Valencia, As Park Attendance Grows, so Does Trash, Univ. Miami Sch. of Commc’n (May 6, 2008), http://www.ournationalparks.us/park_issues/as_park_attendance_grows_so_does_trash problem/  [https://perma.cc/R4KF-9R74].

[73] Id.

[74] Id.

[75] Weber, supra note 65.

[76] Id.

[77] Id.

[78] Id.

[79] Id.

[80] Fears, supra note 71.

[81] Endangered Species in our National Parks, Nat’l Park Reservations (Aug. 9, 2016), https://www.nationalparkreservations.com/endangered-species-in-our-national-parks/ [https://perma.cc/4RHH-VC57]; 16 U.S.C. § 1536 (2012).

[82] Fears,supra note 69.

[83] Kurt Repanshek, Traveler’s View: Lost in the Water Bottle Ban Debate Is National Park Service Leadership, Nat’l Parks Traveler (Aug. 21, 2017), https://www.nationalparkstraveler.org/2017/08/travelers-view-lost-water-bottle-ban-debate-national-park-service-leadership [https://perma.cc/PV6T-575S].

[84] Fears, supra note 69.

[85] Id.

[86] Id.

[87] Id.

[88] Id.

[89] Id.

[90] Id.

[91] See id.

[92] Id.

[93] Id.

[94] Id.

[95] Repanshek, supra note 83.

[96] Ansson & Hooks, supra note 32, at 224.

[97] Id. at 224.

[98] Id.

[99] Id. at 225.

[100] Ryan Wichelns, For National Parks, Helicopter Tours are a Noisy Problem, Backpacker (Feb. 28, 2017), https://www.backpacker.com/news-and-events/national-park-helicopter-tours [https://perma.cc/MUQ2-M99S].

[101] Id.

[102] U.S. Dep’t of the Interior, Effects of Noise on Wildlife, Nat’l Park Serv., https://www.nps.gov/subjects/sound/effects_wildlife.htm [https://perma.cc/5MBY-LDQX] (last visited Jan. 15, 2018).

[103] Id.

[104] Id.

[105] Wichelns, supra note 98.

[106] Id.

[107] Id.

[108] U.S. Gov’t Accountability Off., GAO-06-263, National Parks Air Tour Management Act: More Flexibility and Better Enforcement Needed 12 (2006).

[109] Tony Barboza, An ‘F’ in Air Quality: California National Parks Top the List for Worst Pollution, Los Angeles Times (July 28, 2015), https://www.latimes.com/local/lanow/la-me-ln-parks-air-quality-20150727-story.html [https://perma.cc/2RSD-ZXRD].

[110] Mantell, supra note 10, at 49.

[111] Antolini, supra note 53, at 912.

[112] Id. at 882.

[113] National Park Service Organic Act of 1916, ch. 408, 39 Stat. 535 (codified as amended at 54 U.S.C.S. § 100101 et seq.).

[114] See id.

[115] Antolini, supra note 55, at 916.

[116] Id. at 917.

[117] Id.

Legal Realism Now?

Download a copy of this Response:

David Simon

Response Piece | 107 KY. L. J. ONLINE | Volume 107

Legal Realism Now?[1]

David A. Simon*

I.  Introduction

Legal realists have accomplished quite a bit since Holmes. Some have succeeded in swallowing whole fields of law with economic jargon. Others have eaten away at law’s mystical innards by exposing its racism, sexism, and classism. And still others have evacuated from the legal intestines the digestible bits so savory to the mouth of the 19th century jurist: the categories. What is left of law in this picture? One answer, for many realists, is not much. Law is a policy tool, don’t you know? It is designed to do things. And it is the task of scholars to show how law does things, not to identify “transcendental nonsense.”[2] Surely Felix Cohen has a point.

But, as Thomas Grey reminds us, even the most tough-minded realist had a love for categorization and systematization.[3] True, it was with an eye toward how useful the exercise, but not always. Much of Adam Mossoff’s essay, Trademark as a Property Right,[4] could easily be regarded as engaging in the nonsense legal realism left behind. This is how Ramsi Woodcock characterizes it in his response, Legal Realism: Unfinished Business.[5] Formalistic, conceptual analysis is, on this view, an analytical black hole. But this is an exaggeration, a mischaracterization. It is true, as Brian Frye notes, that Mossoff’s essay makes a “valuable contribution,”[6]even if it is not the kind of contribution of which many are fond. More than that, though, Woodcock’s response reveals a curious analytic amnesia about the nature of conceptualization and realism. And it is one that traps realists into a lexical vortex not unlike the one they so eagerly deride.

II.  Realism and Formalism

The realists replaced talk of legal metaphysics with power,[7] and later economics, race, sex, and so on.[8] I must admit that I regard this development as positive. Replacing formalistic legal internalism—the view that legal categories have inherent conceptual features, and that legal analysis proceeds by deductive logic—with a more nuanced understanding of law as an interactive, social process was an important criticism. It enabled us to better understand law’s effects and how we might change them. And yet in attempting to escape the autonomous, legal hermeneutics characteristic of formalism, some analytical techniques developed their own kind of internalism.

Consider the economic analysis of law, where formalistic internalism of a different kind carries on without a hint of irony. The more one reduces legal issues to the economic lexicon, the more it resembles the formalist metaphysics it ridicules. Does fair use solve market failures? Does intellectual property law increase efficiency? Do patents have spillover effects? Should a legal entitlement be protected by a liability rule or a property rule? Does the legal rule create a positive or negative externality? Or, best of all, does the law increase social welfare? The task of the scholar answering these questions is to categorize things in the right way, in a way that allows an economic analysis. But in these cases the economic analysis is legal analysis. And what did the formalists want to do except legal analysis? If we follow the arguments to their most basic form—and even to their regular appearances in scholarship—we wind up in the world of abstractions legal realism promised to leave behind.[9]

That’s not to say there aren’t real differences. One of formalism’s rather astounding claims was to offer a method for “deducing” “right” answers from judicial decisions or statutes. Economic analysis of law, on the other hand, one-ups formalism by providing not merely answers but also questions. Economic analysts of law want policy to determine law, and economics to determine policy. When the analyst categorizes legal rules or doctrine, she does so to understand how to achieve particular policy results—those that maximize (or promote) efficiency.[10] One ought to be able to determine whether a rule is correct by evaluating whether it achieves the desired economic result. Right answers here are of the economic, not the formalist, kind.[11] So, too, are the questions.

I don’t mean to suggest that legal realism is the conceptual equivalent to law and economics; it certainly is not. I also don’t mean that other features of legal realism fail to surpass legal formalism; they certainly do. But it’s a mistake to think that conceptual analysis as such is a waste of time because we should concern ourselves only with policy. Not only does conceptual analysis sometimes yield important insights, it’s also critical to a functioning legal system. Formalism’s toolkit—analogical reasoning, adherence to precedent, conceptual analysis, etc.—is not just obscurantist cover for personal judgments, policy, or otherwise. Its machinery also provides a means for avoiding discussions of policy when it is impractical or imprudent.

Sometimes, maybe even often for trial judges, there is no obvious policy analysis to be had. Much of the trial judge’s work involves discovery and technical procedure. Legal rules do not always and in every case present the judge with clear policy choices. To ask them to consider the policy consequences of every decision they make, to ask them to predict and control future cases and strategy, is a burden too great for even the most accomplished jurist. And, even where consideration of policy is possible, it may not be desirable. If current events tell us anything about law, it’s that formalism may be law’s redeeming virtue as well as its mystical vice. Law can’t and shouldn’t be all politics, power, race or economics, just as it shouldn’t be all internal, conceptual wheel-spinning. Isn’t this what realism taught? This is why a rather well-known exponent of judicial pragmatism—one who has swooned over economic analysis of law[12]—suggests that judges might resort to the tools of formalism to build a legal decision.[13]

And yet we have grave unease about the self-proclaimed judicial scientist, or, for that matter, the more contemporary judicial umpire. Our worries stem from insights realism has wrought. And they are real worries. But if the formalism, so dominant in judicial chambers, cannot give us “right” answers, does it reduce the judge to a black-robed huckster? Are those well-meaning men and women doing anything other than playing a kind of conceptual shell game? There is a nuanced answer.[14] In hewing to subtlety, though, we are susceptible to the failures so meticulously identified by the realists: a desire for right answers, and, more importantly, a method for deriving them.

Perhaps this is why economic analysis of law, more than some of the other realist approaches to law, has appeal. It is not merely a criticism of law’s conceptual house of cards; it offers a “scientific” method for deriving “right” answers that are determined by “facts” in the “real world.” Of course, the economist’s real world is a fictional oversimplification. And the facts she uncovers are more institutional than brute.[15] At least, though, economics professes concern for (some) consequences of legal rules. Formalism, it is true, tends to become, well, overly formalistic. In these circumstances it is easy enough to see the appeal of approaches like those favored by economists. Does this mean that law and economics—or, for that matter, consequentialism—is valuable and legal formalism is not? Hardly. Does the realism of the 20th century render “quixotic” the formalism of Mossoff’s essay? Yes, but not entirely.

Although the method of legal formalism as an objective arbiter of law is passé, the method itself is not. If we try to determine what makes something property and what makes something not-property, have we done something valuable? Have we done something important by characterizing laws into liability and property rules?[16] Should we, while we’re at it, waive off Socrates for annoying the gentry with pestering questions about nature of justice?[17] The answer depends upon why we are categorizing. Economic categories help us evaluate, within a certain conceptual system, which rules we might want to adopt and why. I doubt many people think the formalism does the same.

The skepticism about formalism is a direct result of legal realism’s critique. Formalism-as-judicial-science is dead, and so legal formalism offers no independent reason to adopt its conclusions. But, then again, neither does economics. Didn’t legal realism’s razor cut judicial science at the knees, whatever its instantiation? Economics, then, must provide independent reason why we should accept its analysis before we run full boar into the thicket of efficiency, markets, and elastic demand. A system’s emphasis on consequences is a good reason to favor it over a system that disregards consequences. We should remember, though, that non-consequentialist reasoning doesn’t disregard consequences. And neither does formalism. Legal realists, above all else, have taken pains to point this out.

Then again, consequences are important. And if we claim—as do consequentialists—that consequences are all that matters, then it’s quite important to understand what count as consequences and how and why they are measured. A particular passage from Woodcock’s response is relevant:

But what Americans care about is whether protecting brand loyalty is good or bad for consumers. Protecting brand loyalty might be good for consumers because it allows firms to reap rewards from investing in the production of better products. Or protecting brand loyalty might be bad for consumers because it magnifies the power of seductive advertising or the familiarity generated by having been first to market to create irrational brand attachments, leading to higher prices and harm to more-innovative but less-well-known competitors. Legal realism demands that the debate over trademarks be carried out in these terms, in terms of effects.[18]

Notice the conceptual backsliding. The realist should not assume, as does Woodcock, that the language of economics determines the measuring of effects. The more pragmatic among us wonder not whether modifications to trademark law will increase consumer surplus or promote social welfare (as measured by economists) but rather what effects does trademark law have on society? Does it silence critics? Does it threaten to invade every aspect of our lives, to render every experience we have to one determined by trademark holders (in particular, large corporations)? Most importantly, we want to know if the effects are the kind we want to encourage? Mossoff’s essay, it is true, does not consider such questions, but neither does Woodcock’s.

III.  Reality and Effects

An emphasis on effects shouldn’t require us in every circumstance to point out the effects of some conceptual scheme or another. Or if it does, we should also place similar demands on the kinds of effects we are interested in, and why. It is natural for Woodcock to assume that a focus on consequences requires a focus on reality. Consequences presuppose events with effects in the world of sense. For Woodcock, Mossoff’s conceptual analysis falls outside the scope of reality because it doesn’t concern events in the world of sense—which Woodcock defines as the quantifiable effects of laws upon economic measures. No wonder he has difficulty finding in Mossoff’s essay redeeming qualities. Formalism, in Woodcock’s view, is not reality based. And because formalism is fantasy, it should be discarded. It’s a curious conclusion to reach for someone who acknowledges the continuing dominance of formalism in legal practice and education.

Yes, of course, but formalism’s pervasiveness is precisely the problem, according to Woodcock. Lawyers and judges engage in analysis that amounts to verbal smoke and mirrors. Formalism’s reality is unreality. One cannot divine property rights by consulting sacred texts; one must examine the things as they function in the real world. I am sympathetic to this line of thought, but one should be careful not to run with it too far. Use in judicial opinions is use in the real world. The judge understanding the internal development of a concept is an effect in the real world. This is not an argument that judges or policy makers—or god help us, law professors—should ignore effects outside the courtroom. Only that effects inside (the head) matter, too.

Sometimes these internal effects are significant. Where, for example, formalism provides a compelling account of law’s doctrines or rules. Explanatory power is not only reason-giving, but reason-making. Realists should take note because many of realisms offshoots can’t fully explain law.[19] Realism, at least less sophisticated versions, necessarily leaves out important conceptual features by its criticism of them as window-dressing. Worse still, it regards central features of law as distractions or, as in the case of morality, hopelessly empty. In economic analysis of tort law, for example, the idea of corrective justice is nowhere to be found. Yet this concept animates the principal features of the doctrine.[20] Mossoff’s analysis is in a similar vein: it tries to account for why, internally, the laws are the way they are. Maybe it doesn’t succeed. But this is something economic analysis, and much of realist scholarship, cannot do.

Is this reality? It sure feels like it. The problem realists have with this reality is that it tends to obscure the dynamics of power, privilege, and so on. But so does economic analysis of law. What realism teaches is not that the economic method will give us the answers that we want, but that the language of economics performs the same sleight of hand as legal formalism. Ideology infects the terminology and structure of economics—and, consequently, its application to law—to such a large degree that its most basic and foundational concepts (e.g., efficiency, markets) are taken as proper starting points for analysis. The realist dares not make any such assumptions: pressing on these tender spots in the skin of economic analysis reveals the rot that lies underneath. When the skin breaks and the realist peers inside, she sees that theoretical debates about terminology and its application have about as much impact on the infection as debating whether trademarks are property in the formalist picture. The indeterminacy of economic analysis must be confronted along with the indeterminacy of formalism.

This problem is not limited to economic analysis of law. Even the more general consequentialist picture, one to which I am somewhat partial, has its own schemata, which, like so many others, can’t help but become all-encompassing. When one attempts to assemble a consequentialist version of ethics or law, she quickly begins to make accommodations to non-consequentialist reasoning.[21] To shield consequentialism from the attacks of deontology, however, consequentialism has an automatic “vacuum cleaner” that can suck-up any non-consequentialist attacks: any non-consequentialist theory can be “consequentialized.”[22] If this is true, then we are left with a theory so encompassing and far-reaching it offers no meaningful concrete guidance; indeed, since the vacuum cleaner can suck up almost any deontological theory (or value), consequentialism itself falls victim to the kind of charge realists are accustomed to making: it doesn’t capture the reality it deems so important.

IV. Conclusion

Despite its shortcomings, formal conceptual analysis, just as economic analysis or critical legal studies, does have value. It tells us about the nature of our conceptual structures, why we rely on them, and whether these assumptions should be revisited. In short, it is part of the legal realist project, even if its prescriptions may not be. More than that, though, formalism has an interesting and important reality-based feature: it doesprovide judges with an internal reason—a reason judges count as significant—to accept its conclusions, or at least consider them seriously. These reasons are not just window-dressing; they can act as real constraints.[23]

Woodcock is too quick to wave off conceptual analysis as irrelevant in the new age of empirically-driven law. At the same time that Woodcock recognizes that legal disputes are driven by the formal legal analysis, he notes that legal realism has destroyed this method of decision-making. Maybe law is outgrowing its formalist britches, but its practitioners still need to wear pants. We might laugh when one tries to determine the fundamental attributes of property in the same way philosophers now laugh at the quest to identify the essence of a table. But in the real world, the former impacts people’s lives while the latter makes no difference whatsoever.[24] Better to be measured about the whole thing than to throw out old clothes before the new ones have arrived. If Mossoff offends legal realists, then, it may be because they have caught a glimpse in the mirror. 

---

* Project Researcher, Hanken School of Economics; Visiting Assistant Professor, University of Kansas Law School; Ph.D. candidate, University of Cambridge. Thanks to Brian Frye for comments and suggestions.

[1] Title adapted from Joseph William Singer, Legal Realism Now, 76 Calif. L. Rev. 465 (1988).

[2] Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935).

[3] Thomas C. Grey, Holmes and Legal Pragmatism, 41 Stan. L. Rev. 787, 822–824 (1989) (“Since the heyday of the Realists, legal thinkers have tended to assume that legal taxonomy and conceptual doctrine-building necessarily rest on Langdellian premises. Behind this assumption often lies the instinctive nominalism, or cult of the concrete, that denies all practical importance to generalization and abstraction. Yet no pragmatist[, including Holmes,] would endorse such an antipathy to generalization.”); see Singer, supra note 1, at 470-72 (noting that even realists acknowledged the usefulness of generalizations in certain circumstances).

[4] Adam Mossoff, Trademark as a Property Right, 107 Ky. L.J. 1 (2018).

[5] Ramsi A. Woodcock, Legal Realism: Unfinished Business, Ky. L.J. Online (2019).

[6] Brian L. Frye, Metaphors on Trademark: A Response to Adam Mossoff, “Trademark as a Property Right”, Ky. L.J. Online (2019).

[7] See Hanoch Dagan, Reconstructing American Legal Realism & Rethinking Private Law Theory 17-67  (Oxford Univ. Press 2013), for a general review of legal realist themes.

[8] Critical Legal Studies (James Boyle, ed., N.Y. Univ. Press 1992).

[9] See, e.g., Louis Kaplow & Steven Shavell, Fairness versus Welfare (Harv. Univ. Press 2006).

[10] The two standard versions of efficiency are Kaldor-Hicks and Pareto Efficiency.

[11] Richard A. Posner, The Problematics of Moral and Legal Theory (Harv. Univ. Press 2009). We should, though, remind ourselves that Posner and the formalists both share the dubious honor of proclaiming their preferred method a “science.”

[12] See David A. Simon, Problems in Theory: Intellectual Property (forthcoming 2019-2020) (manuscript on file with author).

[13] See Richard A. Posner, Law, Pragmatism, and Democracy (Harv. Univ. Press 2005); Richard A. Posner, The Problematics, supra note 11. Posner’s version of judicial pragmatism, and many other versions, grew out of the philosophical school of pragmatism. See Simon, supra note 12.

[14] Realism never claimed to reduce judges to charlatans. It sought to illuminate the factors other than formal legal analysis that influenced judicial decision-making. See Singer supra note 1, at 470-75. Yet this produced a puzzle: how does one engage in legal analysis without “reverting to . . . formalism . . . or reducing all claims to the raw demands of interest groups?” Id. at 468. The question is “so hard that judges and scholars often reassert central elements of formalist reasoning they had hoped to discard.” Id.

[15] John Searle, the Construction of Social Reality 27 (1995) (explaining that “brute facts” are those facts that exist independently of human institutions, and “institutional facts” are those that exist in virtue of human institutions, and also distinguishing the statement of brute facts, which requires the human institution of language, from the stated brute facts, which exist independently of language).

[16] Guido Calabresi and A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 Harv. L. Rev.1089 (1972).

[17] Plato, The Republic (Page, Capps, & Rouse eds., 1937).

[18] Woodcock, supra note 5, at 8.

[19] Here, I am thinking mainly of economic analysis of law.

[20] See Jules Coleman, The Practice of Principle (1999). See also Jules Coleman, Risks and Wrongs (1992).

[21] Simon, supra note 12.

[22] David McNaughton & Piers Rawling, Agent-Relativity and the Doing-Happening Distinction, 63 Phil. Stud.: An Int’l J. for Phil. in the Analytic Tradition167–185 (1991). But see Campbell Brown, Consequentialize This, 121 Ethics749 (2011). See, for example, Stephanie Bair, Rational Faith: The Utility of Fairness in Copyright, 97 B.U. L. Rev. 1487 (2017), for attempts at this in IP scholarship. See Simon, supra note 12, for an explanation of why this approach doesn’t succeed.

[23] This is true even in the Court that has the most opportunity and freedom to make policy in the guise of law. See, e.g., Ryan C. Black & Ryan J. Owens, Agenda Setting in the Supreme Court: The Collision of Policy and Jurisprudence, 71 J. of Pol. 1062 (2009). As noted before, even realists didn’t really claim that judges were unconstrained – but rather they were constrained by factors other than law. In particular, they argued that formalism provided cover for the influence of these extra-legal factors.

[24] I don’t mean to suggest that philosophy makes no meaningful contribution to people’s lives, or has not influenced how people think or how, for that matter, science proceeds. But at least in this example, there is no import in a legal setting how this might make a difference.

Graduate Students or University Employees? The NLRB Got It Wrong; It’s Time for Congress to get it Right

Graduate Students or University Employees? The NLRB Got It Wrong; It’s Time for Congress to get it Right

Austin Anderson[1]

Introduction

Graduate students across the country are often required to complete a set amount of hours working as a graduate assistant in order to earn their degree. These graduate assistant hours are typically earned by working as either a research assistant or a teaching assistant, depending on which type of program the student is enrolled in.[2] The relationship between the students and their institutions presents some interesting legal questions, particularly for teaching assistants. The most intriguing question that arises is whether these students should be considered employees as defined under the National Labor and Relations Act. The distinction is an important one; classifying graduate students as employees would grant them rights and privileges that other types of employees are entitled to, most notably the right to enter collective bargaining agreements to negotiate for less required hours and university health insurance.[3]

The National Labor and Relations Act (NLRA) governs this type of issue, and the National Labor Relations Board (NLRB) hears and settles claims brought under the Act working as a quasi-judicial entity.[4] The NLRB was first presented with the question of university-employed graduate students in 1972,[5] and the issue has never fully been resolved. In 2004, the Board seemed to end the dispute once and for all when it ruled affirmatively that students were not employees under the NLRA.[6] However, the issue was not settled for long; the Board overruled itself in August 2016, holding that “student assistants who have a common-law employment relationship with their university are statutory employees under the [National Labor Relations] Act.”[7] This ruling only applies to private institutions, as state statutes govern public university employment,[8] but the implications are still far-reaching.

Unfortunately, the Columbia University ruling was just the latest example of inconsistency in NLRB decisions.[9] Perhaps the best explanation for why the Board is consistently overruling itself is the political nature of the board itself; board members are appointed by the President of the United States, and every member has a fixed term of five years.[10] Presidents appoint candidates who will bring a conservative or liberal approach to the Board, depending on what views the President at the time of appointment holds. A conservative board would likely have no problem overruling a liberal board, and vice versa. This, coupled with the fact that NLRB decisions are only somewhat binding precedent even if affirmed by a federal circuit court,[11] means that there is no clear indication that the court will stop overruling itself at any time in the near future.

The NLRB is simply not fit to create a final, lasting precedent from a procedural standpoint.[12] Therefore, the only way this issue can truly be resolved is for Congress to amend the National Labor Relations Act and end the dispute once and for all. The original Act was passed in 1935,[13] and has not been significantly altered by Congress since the passing of the Landrum-Griffin Act in 1959.[14] Almost all areas of the law have changed drastically in the last sixty years, and labor law is no different. The unique relationship between universities and their graduate students as they operate today was very likely not foreseen or contemplated when the NLRA was drafted or last amended.

Aside from being the only legitimate avenue for endorsing a specific reading of the National Labor Relations Act, Congress is the entity best equipped to decide such a complex and far-reaching issue. In 2015, there were over 130,000 students employed by their universities in a teaching assistant role.[15] Despite the competency of NLRB members, this issue is simply too large to be decided by a panel of five appointed officials. Students and universities both make compelling arguments advancing their positions. Students point to the fact that teaching assistants often fill roles that would otherwise have to be filled by adjunct faculty which are considered employees.[16] Universities, on the other hand, feel that classifying graduate students as employees would hamper their freedom to create a rigorous and challenging curriculum.[17]

This Note seeks to further explain the complex issue of graduate students as university employees and advocate Congressional action. Part One briefly explains the procedural structure of the National Labor Relations Board and how it operates. Part Two summarizes the history of Board rulings in regard to graduate students as employees, including the two most recent rulings on the matter, Brown University and Columbia University. It further identifies how the two opinions differ beyond their ultimate result. Part Three advocates for Congress to amend the National Labor Relations Act by adding students to the list of groups which are not covered by the Act, effectively denying them the classification of employee. In making this argument, the Note will point out the flaws of the Columbia University decision, discuss the practical effects of the decision, and explain why the rights of the universities must prevail from a policy standpoint.

I. The National Labor Relations Act Overview

A. Passing of the Act and Mechanics of the Board

In passing the National Labor Relations Act in 1935, Congress made it a point to explain why it believed the legislation was needed.[18] Upon reading the “[D]eclaration of [P]olicy” section, it becomes clear that the key objective of the Act was to help make up for the inequality of bargaining power between employers and employees.[19] Enacted under the authority of the Commerce Clause,[20] the drafters seemed to believe that the right to collective bargaining was the most powerful tool employees could harness against their employers in their plight for competitive wages and improved working conditions.[21]

If protected by the NLRA, the students’ argument is a strong one. There is a clear lack of bargaining power, and the remedy they seek is expressly endorsed by the Act.[22] The key question at issue, however, is whether the students are “employees” under the statute.[23] The Act has some peculiar jurisdictional limitations in defining what types of employees and employers are covered. Generally, almost all private sector employers are regulated by the Act, so long as their activity in interstate commerce exceeds a minimal level.[24] Notably, all forms of government employment are excluded from NLRA jurisdiction.[25] This includes federal, state, and local governments, and it extends to their entities such as libraries and parks, wholly-owned government corporations, and most relevant for our purposes, public schools.[26] Governmental bodies aren’t the only types of employers excluded from the Act, however; agricultural-based employers, as well as employees subject to the Railway Labor Act, also do not fall within its jurisdiction. [27]

If a labor issue arises out of a provision of the Act and the employer is not excluded from the jurisdiction of the Act, then disputes are settled by the National Labor Relations Board, in a sense acting as the judicial component of the agency.[28] The Board is comprised of five members, who are appointed by the President with advice and consent of the United States Senate.[29] Each board member serves a regular five-year term, unless appointed mid-term to fill a vacancy.[30] Disputes are generally heard by three-member panels unless the case at hand is significant enough to warrant consideration of all five board members.[31] This practice was called into question in New Process Steel, L.P. v. NLRB, where the Supreme Court held hundreds of NLRB rulings invalid, reasoning that at least three members of the Board must sit on the deciding panel for a decision to be legally enforceable.[32]

It is unsurprising that NLRB appointments today are highly politicized decisions.[33] What is surprising, however, is that the partisan nature of appointments is a relatively new phenomenon. Commentators have pointed to the Eisenhower administration as the first to appoint a NLRB member whose background clearly indicated a possible bias towards the president’s personal viewpoints.[34] The trend continued until eventually Presidents Reagan and Clinton became the first presidents to appoint nominees who possessed clear Republican and Democratic partisanship, respectively.[35]

Today, nominating a partisan NLRB member is business as usual;[36] but what are the impacts of partisan nominations? These partisan nominations have shaped the determination of “sharply contested issues of law and policy” before the Board.[37]  There is substantial anecdotal evidence of the partisan nature of the NLRB, and the few scholarly studies on the issue generally find that “the party of the appointing president influences the NLRB’s output.”[38] Scholars disagree to what extent background affects member ideology,[39] but most would likely agree that to some extent, “a presidential administration can make or change labor policy without legislative action through appointments to the NLRB.”[40] Given the importance of labor issues covered under the NLRA, and the predictability of how members will vote,[41] appointing NLRB members is one of the most quietly influential appointment decisions a sitting president will make.

Perhaps the best restraint on the President’s authority is not a law, or even the Senate confirmation requirement, but the custom that of the five appointed Board members no more than three should come from the President’s political party.[42] Still, even with this custom in place, it is plainly obvious that a “change in presidential administration from Republican to Democrat gives rise to a pro-labor shift in NLRB performance, and a change from Democrat to Republican produces a pro-business shift.”[43]

B. The Non-Binding Nature of Decisions Demands that Congress Must Act for Meaningful NLRA Clarification

Though the NLRB assuredly acts as a judicial body in the way that it adjudicates claims and disputes, its decisions are more accurately described as an agency order.[44] The Board may issue a ruling, but the order is not self-enforcing.[45] If a charged party refuses to comply, the Board must seek enforcement from the appropriate appellate court.[46] Likewise, if a party wishes to dispute an order, it can go to the courts to have the Board decision remanded or voided.[47] Even if a federal appellate court upholds or strikes down a decision of the Board, the decision is only binding on the case at issue, and it does not set precedent for future Board rulings.[48]

The practical effect of all of this is that newly appointed Boards are free to overrule previous rulings in adjudicating new disputes, and they do so often.[49] Given that Boards’ ideologies differ greatly depending on the president which appointed the members,[50] and the fact that Boards are not constrained by stare decisis when deciding their cases,[51] it is unsurprising that a new Board would be all too eager to overturn previous Board rulings the first time they have the opportunity to do so. The process of overturning prior Board rulings is problematic, but constitutional nonetheless.[52] In 1975, the Supreme Court of the United States not only condoned this sort of flip-flopping, but encouraged it by holding that “[t]he responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board,”[53] and that past decisions can be reconsidered to reflect that.[54]

The lack of uniformity and predictability is a major concern for practicing attorneys and parties alike. A former Board Member, frustrated with the current system, notes “[a]s a matter of policy, these flip-flops reduce public and judicial confidence in the Board. In practice, this oscillation also reduces both management and labor's reliance on Board law because neither side is sure what the future will hold.”[55]

Because of its partisan nature and the lack of binding precedent, the NLRB is simply not equipped to create a true resolution of the classification of a graduate student under the Act. Any ruling on the classification of graduate students as an employee under the Act can and likely will be overturned as soon as a new Board is appointed.[56] Further, both academic institutions and graduate students will be hesitant to act, even if a ruling is made in their favor, knowing that the current status quo can be usurped at any time.[57] The issue of graduate students under the NLRA must be addressed by Congress to finally put the debate to rest.

Though ineffective at creating lasting policy because of the Board’s nonobservance of stare decisis,[58] the NLRB is not useless by any stretch. In fact, it may have been a goal of Congress to create the Board in such a way that it could not create rigid, binding precedent.[59] Board members generally have valuable experience or expertise in labor or employment law,[60] and their insights and reasoning in solving disputes should be taken seriously. Though only Congress can permanently answer the question of how to treat student-employees, in making its decision Congress would be wise to consider how the Board has handled the issue for the last 45 years.[61] The following section will examine a timeline of such cases, and demonstrate how both a Republican-appointed Board and a Democrat-appointed Board acted when most recently presented with the issue.[62]

II. Where the Issue Arises and How the NLRB Has Handled It 

A. Defining “Employee” Under Section 2(3) and Interpreting the Definition

The heart of the issue in all of the student-employee labor disputes is whether or not the students are considered employees under the NLRA.[63] The Act provides a definition of “employee,” which is the source of the litigation. In pertinent part, the Act defines employee in the following manner:

The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise … but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act … or by any other person who is not an employer as herein defined.[64]

Generally, interpretation of this definition comes down to competing theories of statutory construction; specifically, the competing theories of textualism and other intentionalist theories.[65] When used by judicial bodies, textualism—which focuses on the text of the statute at issue—is usually employed by conservative judges, whereas intentionalist theories—which focus on Congressional intent or the purpose of the statute—are often employed by liberal judges.[66] The Board, however, is not a true judicial body but rather a branch of an administrative agency.[67] Because of its unique nature, some interesting questions arise; most notably, what interpretation the Board should apply, or whether or not it should even apply a statutory interpretation theory at all.[68]

A textualist approach makes the analysis somewhat easy in regarding the determination of employment status under the NLRA. Under the “expressio unius” statutory interpretation maxim, which provides that “[w]hen a provision sets forth a general rule followed by specific exceptions to that rule, one must assume–absent other evidence–that no further exceptions are intended,”[69] a strong argument could be made that students are employees because they are not listed alongside the other exceptions.[70] The expressio unius maxim is a subset of the larger interpretation doctrine of textualism.[71]

Intentionalist theories, on the other hand, involve a somewhat murkier analysis, though they could arguably lead to more ‘fair’ results.[72] Intentionalism itself has multiple sub-categories; some judges ask themselves what the enacting legislature would have done with the issue at hand, while others query what interpretation would best serve the true purpose of the law.[73] These methods are called intentionalism and purposivism, respectively.[74] To employ either of these methods requires a judge to make his or her subjective decision as to what Congress would have wanted or what the purpose of the law was.[75] To put one’s self in the shoes of a 1935 legislator is a difficult thought experiment which could produce any number of results.

Both textualist and intentionalist approaches are widely used by judicial bodies,[76] but the overarching question remains: should the NLRB act as a judicial body, or the administrative agency that it truly is? Unlike Courts, administrative agencies are well equipped to legitimately make policy choices.[77] Courts are generally tasked with merely interpreting a statute before them, whereas an administrative agency’s “are expected to make policy choices much more so than the courts, a role that has been upheld by the Supreme Court.”[78] Though the agency’s role of promoting policy is often relegated to interpreting its own authority,[79] it can abandon this role in the interest of promoting policy related to the statute it administers.[80] This practice may cause some to raise an eyebrow, but it has been condoned by the Supreme Court so long as the policy the agency is promoting is reasonable.[81]

The differences in how Courts and the NLRB operate tends to give credence to the idea that an intentionalist approach, specifically purposivism, is better suited to resolve disputes at issue. Accepting that an administrative agency may legitimately promote its policy,[82] textualism seems like an odd vehicle to fulfill that duty. Policy, unlike a statute or the Constitution, is ever-changing, and continually reading statutes under a textualist lens fails to give agencies the opportunity to reflect those changes.[83] Additionally, ruling that an argument fundamentally promotes an agency’s policy, rather than merely finding an argument is valid under a textualist reading of the statue, seems much more effective at establishing and continually endorsing said policy.

B. A Brief History of Pre-Brown Graduate Assistant Decisions

The issue of teaching assistants and other graduate students is not a new one; in the early 1970’s, the Board ruled on two cases that set an early precedent on the matter. The first, Adelphi University, held that graduate students were not employees of their university; therefore they were not fit to join the rest of the faculty when collectively bargaining.[84] The Board placed a great deal of emphasis on the differences between the regular faculty and the graduate assistants. The functions the students performed, they reasoned, were primarily academic with only some faculty-related tasks.[85] Additionally, because the student’s employment relationship could not exist without the established academic relationship, the court held that the two groups were too distinct to be included in the bargaining unit.[86]

Two years later, the Board solidified its position in Adelphi University and expanded upon it. In The Leland Stanford Junior University case, the Board held explicitly that because graduate assistants were “primarily” students, they were not statutory employees under the NLRA.[87] The Board also considered the nature of their employment standing alone and how it compared to a traditional University employee. Unlike non-student employees, the University had little control over the students’ research projects and students were not paid in accordance with the value of their work.[88] The Board found that the true employment relationship was “a situation of students within certain academic guidelines having chosen particular projects on which to spend the necessary time, as determined by the project's needs.”[89]

The Leland and Adelphi decisions lasted for over 25 years before being overturned by New York University in 2000.[90] The New York University Board did not act completely on its own. Instead, the reasoning for overturning Leland was borrowed from another decision, Boston Medical Center, which created a new standard of determining employment on the basis of the common law master-servant doctrine.[91] Applying the standard, the Board determined that the students were statutory employees under Section 2(3);[92] this was the first time students ever received such classification.[93] In determining whether or not a master-servant relationship existed, the Board reasoned that it exists when “a servant performs services for another, under the other’s control or right of control, and in return for payment.”[94] Aside from examining the common law employment relationships, the Board also took a textualist approach, noting that Congress had made specific exceptions to the general rule and student-employees were not one of them.[95]

C. Brown Versus Columbia – Under the Microscope

The two most recent disputes on the matter illustrate where the Board stands now, and what reasoning it used to arrive there. The cases are factually indistinguishable for all relevant purposes, and the issue is identical.[96] So how did the two cases, decided merely 12 years apart, arrive at opposite conclusions? This section attempts to answer that question by identifying the underlying causes.

i. Brown Analysis

Brown overturned NYU and held that graduate students were not employees as defined by the NLRA.[97] The ruling in Brown can be condensed down to three major conclusions, the first of which is that the relationship is primarily and unequivocally an academic one.[98] The justification for this claim is similar to that of pre-NYU cases; namely, that the students’ employment relationship exists only to the extent that it is part of the academic relationship.[99] Still, the Board realized that under a textualist reading it doesn’t matter if the relationship was primarily an academic one, so long as an employment relationship existed.[100] To pre-emptively combat such a counter-argument, the Board unabashedly explained that their “interpretation of Section 2(3) followed the fundamental rule that ‘a reviewing court should not confine itself to examining a particular statutory provision in isolation.’”[101] The Board then concluded this argument by deciding under a purposivism approach that an employee was covered under the Act only if the relationship was a “fundamentally economic relationship.”[102]

A second conclusion the Board made is that allowing students to collectively bargain based on their employment relationship would undoubtedly cause adverse effects to their academic relationship.[103] More specifically, by limiting an institution’s right to require some number of hours spent in a graduate assistant role, students would in effect be hampering that institution’s ability to set their own curriculum.[104] The Board even went so far as to say that “[i]mposing collective bargaining would have a deleterious impact on overall educational decisions by the Brown faculty and administration.”[105] Here, one can see the Board fully embracing its role as policymaker,[106] by focusing on what policy it wishes to promote and the practical effects of a ruling, rather than merely interpreting the statute it administers. The Board in this instance clearly saw academic sovereignty as a legitimate policy concern.

The final argument that the Board endorsed in Brown is quite distinct from the previous two, and it was not contemplated by the Board in any of the pre-NYU decisions. The thrust of the argument is that payments made to teaching assistants shouldn’t be considered compensation, rather that they were merely part of a student’s financial aid package.[107] This claim demands attention. The Board considered evidence presented by the University; incoming graduate students often received letters which stated if they “maintain satisfactory progress toward the Ph.D., [they] will continue to receive some form of financial aid in [their] second through fourth years of graduate study at Brown, most probably as a teaching assistant or research assistant.”[108] Additionally, the Board pointed out that funding for the programs was provided by grants[109] and “the amount of stipend received is the same regardless of the number of hours spent performing services. The awards do not include any benefits, such as vacation and sick leave, retirement, or health insurance.”[110] All of this evidence would lead one to believe that the relationship between the University and the students were not so similar to a common-law employment relationship under a New York University analysis.[111]

ii. Columbia Analysis

Brown lasted for 12 years, until being overturned by Columbia.[112] The Columbia Board was very critical of the Brown decision, and a considerable amount of the opinion is refuting arguments the Board had accepted in Brown.[113] The Board specifically took exception to the fact that Brown’s reasoning seemingly ignored a textualist approach altogether.[114] Though Columbia did not advocate a strictly textualist approach, the Board believed that the “fundamental error of the Brown University Board was to frame the issue of statutory coverage not in terms of the existence of an employment relationship, but rather on whether some other relationship between the employee and the employer is the primary one.”[115] That standard was “neither derived from the statutory text of Section 2(3) nor from the fundamental policy of the Act.”[116]

Columbia’s disapproval of Brown did not stop with statutory interpretation theories. When the Columbia Board embraced its role as policymaker,[117] it questioned the legitimacy of Brown’s conclusions. Claiming that the reasoning relied on by the Brown Board was “almost entirely theoretical,” they concluded that “[t]he Brown University Board failed to demonstrate that collective bargaining between a university and its employed graduate students cannot coexist successfully with student-teacher relationships, with the educational process, and with the traditional goals of higher education.”[118] Instead of speculating on what might happen if students were ruled to be employees, the Board examined public universities where students were already allowed to unionize and concluded that collective bargaining had a positive effect on the student-employees, without nearly as many detriments as Brown predicted.[119]

Additionally, the Columbia Board rejected Brown’s attempt to balance the independence of Universities and the potential rights of student-employees. In the Board’s opinion, the scope of policy it should be concerned with begins and ends with the employment aspect, and the NLRB should not be concerned with protecting an educational institution’s interest.[120] Unlike the Brown decision, the Columbia Board believed that it is “entirely possible for [the] different roles [of student and employer] to coexist – and for genuine academic freedom to be preserved.”[121] The only real restraint the Board saw on their ability to disregard the academic element of the relationship was potential infringements on academic freedom which implicated First Amendment protections.[122] They did not view this as a legitimate concern, as they believed that the First Amendment was only implicated when there are government efforts “to control or direct the content of the speech engaged in by the university or those affiliated with it.”[123]

iii. So What Really Changed?

Simply reflecting on the brief analyses of the cases, it is apparent that the two Boards involved in Columbia and Brown did not agree on much. However, the more interesting question is: what are the underlying reasons for such vehement disagreement? As previously discussed, the NLRB is a political entity.[124] The two Boards, ruling in 2004 and 2016, were a product of Republican and Democratic presidential appointments, respectively. Given that Republican-appointed Boards generally rule in favor of pro-management arguments and Democrat-appointed Boards generally rule in favor of pro-union or pro-employee arguments,[125] it makes sense that the Republican (Bush) appointees found for the Universities, whereas the Democrat (Obama) appointees found for the student-employees.

The methods the two Boards took to achieve their preferred outcome are fascinating. It is widely accepted that conservative jurists most commonly adopt a statutory interpretation theory which falls under the umbrella of textualism.[126] Conversely, liberal jurists often adopt and apply one of the intentionalist theories.[127] The irony is that to achieve a favorable result in the cases, the conservative appointees essentially ignored the text of the NLRA and adopted a purposivism approach, and twelve years later liberal justices scrutinized their interpretation and founded their decision in a textualist argument.[128] One familiar with judicial norms may ask themselves just what universe they have stumbled into; the answer is that they are now in the world of administrative agencies, where agents openly promote the policies they agree with, but do it all under the ruse of a legitimate judicial decision.[129]

III. Congress Should Act in Favor of the Universities

A. Where Columbia Went Wrong

The Columbia ruling falls short in many aspects. The textualist approach the Board advocated for and somewhat applied is simply not fit for an administrative agency. It has been stated ad nauseam at this point, but the primary goal of such agencies is to promote policy it wishes to. In criticizing Brown for not applying a textualist approach,[130] the Columbia Board misunderstands its purpose. Congress created the Board so that labor disputes would not be decided by a true judiciary; “[i]f Congress intended the administrative agency to employ textualism or intentionalism, it would have given the primary interpretive role to courts, who are experts in those methods of interpretation. The fact that Congress gives an agency policymaking power suggests Congress desires something other than textualism or intentionalism.”[131]

The Board in Columbia also overstates the intended scope of the National Labor Relations Act, or the NLRA. After setting aside the façade of a legitimate statutory interpretation, the Board shows a clear misunderstanding of what the purpose of the act was. There is a clear underlying assumption in Columbia’s decision that if there is an employment relationship present, then the Act was enacted to cover it.[132] However, the already provided statutory exceptions show that the Act was not intended to cover all employment relationships. The statutorily exempt employees include “any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor.”[133]

This is a peculiar, seemingly random group of categories of employees. Surely an individual employed by their parent or spouse has an “employment relationship,” as well as supervisors. Therefore, under Columbia, had these groups not been specifically exempted, they would have been ruled employees, because there was some evidence of an employment relationship.[134] Why, then, did Congress list them as exceptions? Perhaps it is because unlike the Board’s narrow-minded approach, Congress may have understood that employment relationships do not exist in a vacuum, and other public policy concerns should be taken into account when deciding an issue. The Board in Columbia failed to acknowledge that Congress itself implied that the existence of a non-economic relationship could overpower the economic component of an employment relationship and remove it from NLRA coverage.

From a pure policy perspective, the benefits of classifying students as employees simply do not outweigh the detriments. Despite what the Columbia Board may have concluded,[135] the two “spheres” of a student-employee’s relationship with its institution are inseparable. Changes to one will affect the other. In fact, the lack of one may completely eliminates the possibility of the other existing. Though NLRB members are generally former lawyers well versed in the intricacies of labor law, they do not fully understand the complex student-employee relationship. Professors and other university faculty members, on the other hand, are in a much better position to make such a determination. Many faculty, who were likely graduate students and teaching assistants themselves at one point, have “strongly opposed graduate student organization.”[136]

Those in support of the Columbia ruling will likely point to the fact that some recent studies have shown that where student unions have been created, there has not been any negative effect on the student-teacher relationship.[137] However, this is an area of very little research with an extremely limited sample size that is possibly not representative of all universities, and there have been no studies to confirm nor deny these findings.[138] Even accepting the findings at face value, they do not support the claim that unionization does not have adverse effects on the academic relationship between the institutions and their student employees. Further, the study completely failed to examine how the institutions and full-time faculty felt about the change.[139] The study focuses on the relationship between student employees and full time faculty, when the relationship most affected by unionization is likely the one between the students and the institution itself. [140]This leads into the larger overarching issue of institutional academic freedom, which is discussed in the following section.

B. Institutional Academic Freedom

Institutional academic freedom is the most compelling reason that Congress should choose to add student-employees to the Section 2(3) exceptions. Though a difficult term to define, the essence of the doctrine is that universities should be protected to act independently with as little government interference as possible. The underlying premise is that freedom within an academic setting provides an immeasurable value to society as a whole.[141] Universities themselves started to understand the importance of academic freedom as early as the mid-1800’s.[142] Since then, academic freedom has consistently been viewed as a “special concern of the First Amendment.”[143] The Supreme Court of the United States has explained why they take the doctrine so seriously:

The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.[144]

There are four essential freedoms that, when exercised freely, grant a university true academic freedom.[145] Those four freedoms are the freedom to choose (1) who may teach, (2) what may be taught, (3) how it shall be taught, and (4) who may be admitted to study.[146] Perhaps obviously, the most relevant in context of graduate student unionization is the freedom to choose how material should be taught. Schools have argued that if students could collectively bargain, then they could bargain for a lesser course load or lower degree requirements.[147]

The mechanics of determining whether a specific academic action is constitutionally protected are tricky. The term itself seems to take on different meanings depending on the jurisdiction. Academic freedom could mean the right of the professor to act independently from a university, or the freedom of a university to act autonomously without burdensome state interference.[148] The latter of these two situations is commonly referred to as Institutional Autonomy.[149] Even if a court can clearly define what type of role the doctrine is being used in, the analysis changes depending on whether the institution is public or private.[150] For the purposes of this Note it is not necessary to dive into what may or may not be constitutionally protected under the First Amendment. However, from a policy perspective, Congress should take note of the extreme importance that our judicial system has placed on academic freedom.

Thankfully, Congress is not oblivious to the doctrine. In passing legislation designed to drive down the cost of textbooks, it mentioned academic freedom specifically in the “purpose and intent” clause, writing:

It is the intent of this section to encourage ... faculty, students, administrators, institutions of higher education, bookstores. distributors, and publishers, to work together to identify ways to decrease the cost of college textbooks and supplemental materials for students while supporting the academic freedom of faculty members to select high quality course materials for students.[151]

It is worth noting that the phrase “academic freedom” is not defined anywhere in the United States Code. Does this mean that Congress adopted the judicial definition in drafting a federal statute? One can only speculate, but the phrase does seem to be a clear nod to the doctrine as it has been applied in courts. This would ideally mean that Congress holds the idea in the same high regard as the judicial system and will make a pointed effort to protect any potential infringements on academic freedom. From a policy perspective, this would be a welcome approach.

Private universities, out of the reach of state action, have survived for hundreds of years in part because they are allowed a great deal of discretion in deciding what policies and methods help them to maintain their integrity. An institution should produce graduates capable of beneficial, successful, careers if it wishes to survive academic Darwinism. Perhaps a university believes that to be qualified to earn a PhD, a student must fully demonstrate that he or she knows the subject matter by teaching it to undergraduates. Perhaps a research-based university wishes to stay at the forefront of innovation and does not think a degree should be rewarded until the student produces valuable information. How a university wishes to prepare its graduates for the real world is a decision that they should be free to make. Congress should realize that allowing nationwide unionization could create a “race to the bottom,” where institutions lower their requirements and standards to attract candidates looking for an easier workload. This of course, would have a detrimental effect on the up-and-coming workforce as a whole.

IV. Conclusion

It is time for Congress to step up to the plate and answer the question of whether students are employees under the NLRA. The issue is important enough and affects enough students nationwide to warrant Congressional action. The Board, by no fault of its own, simply cannot create lasting policy needed to ensure stability moving forward. An administrative Board, admittedly concerned only with the economic aspect of a much more complex relationship, has failed to consider the extent to which their decision may harm the academic aspect. Congress, conversely, is in a more objective position to determine to what extent one aspect of a relationship can intrude upon another.

In acting, Congress should add student-employees to the statutory exceptions listed in Section 2(3). At the time the Act was passed, no legislator could have imagined such a strange quasi-employment relationship would ever exist in a University setting. The exceptions listed in the statute are excellent clues that Congress was aware that some relationships were more complex or unique than others, and those relationships which did not fit the traditional employer-employee model were exempt from NLRA coverage. Congress should follow this logic, and stop the NLRA from infringing on academic freedom. 

---

[1] University of Kentucky College of Law, J.D. expected May 2018.

[2] Graduate Student Assistantship, Stan. U. (Sept. 4, 2015), https://adminguide.stanford.edu/chapter-10/subchapter-2/policy-10-2-1.

[3] See generally Columbia University, 364 N.L.R.B. No. 90 (2016) (explaining the historical debate as to whether or not graduate students should qualify as employees under the Act); National Labor Relations Act, 29 U.S.C. § 157 (2012).

[4] National Labor Relations Act, 29 U.S.C. § 153 (2012); What We Do, National Labor Relations Board, https://www.nlrb.gov/what-we-do (last visited March 24, 2018).

[5] See generally Adelphi University, 195 N.L.R.B. 639 (1972) (ruling that graduate assistants should be excluded from a bargaining unit of university faculty members because they did not share a community interest with the faculty).

[6] Brown University, 342 N.L.R.B. 483, 493 (2004).

[7] Columbia University, 364 N.L.R.B. No. 90, at 2 (2016).

[8] Id. at 2, 9.

[9] See discussion infra Part II.B.

[10] National Labor Relations Act, 29 U.S.C. § 153(a) (2012).

[11] See Enforce Orders, Nat’l Lab. Rel. Board, https://www.nlrb.gov/what-we-do/enforce-orders (last visited March 26, 2018) (“In reviewing cases, the Circuit Courts evaluate the factual and legal basis for the Board’s Order and decide, after briefing or oral argument, whether to enter a judicial decree commanding obedience to the Order.”).

[12] See id.

[13] National Labor Relations Act, 29 U.S.C. § 151 (2012).

[14] See Wagner Act United States [1935], April 2018, Encyclopedia Britannica, https://www.britannica.com/topic/Wagner-Act.

[15] Occupational Employment and Wages, May 2016, Bureau of Lab. Stat., http://www.bls.gov/oes/current/oes251191.htm#nat (last visited March 26, 2018).

[16] See C.W. Post Center, 198 N.L.R.B. 453, at 454 (1972).

[17] Columbia University, 364 N.L.R.B. No. 90 at 7-9 (2016).

[18] See generally National Labor Relations Act, 29 U.S.C. § 151 (2012).

[19] Id. “The inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association substantially burdens and affects the flow of commerce, and tends to aggravate recurrent business depressions, by depressing wage rates and the purchasing power of wage earners in industry and by preventing the stabilization of competitive wage rates and working conditions within and between industries.”

[20] See id. “[C]ertain practices by some labor organizations, their officers, and members have the intent or the necessary effect of burdening or obstructing commerce by preventing the free flow of goods in such commerce through strikes and other forms of industrial unrest or through concerted activities which impair the interest of the public in the free flow of such commerce.” See also Precision Castings Co. v. Boland, 13 F. Supp. 877, 882 (W.D.N.Y.) (“The enactment of the act by Congress was not beyond its powers under the commerce clause of the Constitution.”), aff'd, 85 F.2d 15 (2d Cir. 1936).

[21] National Labor Relations Act, 29 U.S.C. § 151 (2012).“It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.”

[22] Id. “It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce . . . by encouraging the practice and procedure of collective bargaining. . . .”

[23] See discussion infra Part II.A.

[24] Jurisdictional Standards, Nat’l Lab. Rel. Board, https://www.nlrb.gov/rights-we-protect/jurisdictional-standards (last visited Mar. 31, 2018).

[25] Id. See also National Labor Relations Act, 29 U.S.C. § 152 (2012) (explaining that employers, as defined under the Act, will not include members of the various levels of government).

[26] See National Labor Relations Act, 29 U.S.C. § 152 (2012). See also Balmes v. Bd. of Educ. of Cleveland City Sch. Dist., 436 F. Supp. 129, 132 (N.D. Ohio 1977) (ruling that “plaintiff cannot pursue a cause of action [against school district] based upon the National Labor Relations Act, because a board of education is not an ‘employer’ as that term is defined in the Act . . . .”).

[27] 29 U.S.C. § 152 (2012).

[28] What We Do, National Labor Relations Board, https://www.nlrb.gov/what-we-do (last visited March 24, 2018).

[29] 29 U.S.C. § 153(a) (2012).

[30] Id.

[31]  NLRB Office of the Executive Secretary, Guide to Board Procedures 12 (April 2017), https://www.nlrb.gov/sites/default/files/attachments/basic-page/node-1727/Guide%20to%20Board%20Procedures%202017_0.pdf.

[32]  See generally New Process Steel, L.P. v. NLRB, 130 S.Ct. 2635 (2010).

[33] Joan Flynn, A Quiet Revolution at the Labor Board: The Transformation of the NLRB, 1935-2000, 61 Ohio St. L.J. 1361, 1438 (2000) (noting that “[l]abor Board appointments are only ‘a small part of the grand political game’”).

[34] Id. at 1368–69.

[35] Id. at 1383–84, 1396­–98.

[36] Id. at 1394 (noting that “appointment of both management and union-side lawyers has now become routine”).

[37] See generally Ronald Turner, Ideological Voting on the National Labor Relations Board, 8 U. Pa. J. Lab. & Emp. L. 707, 761–62  (2006) (concluding that “ideology has mattered in a number of cases presenting controversial and sharply contested issues of law and policy”).

[38] Amy Semet, Political Decision-Making at the National Labor Relations Board: An Empirical Examination of the Board’s Unfair Labor Practice Decisions through the Clinton and Bush II Years, 37:2 Berkeley J. of Employment & Labor Law 223, 233 (2016).

[39] Compare Flynn, supra note 33, at 1403 (arguing “there seems little doubt that management and union representatives appointed to the Board are likely to be highly predisposed to the management or union-side point of view”), with Paul M. Secunda, Politics Not as Usual: Inherently Destructive Conduct, Institutional Collegiality, and the National Labor Relations Board, 32 Fla. St. U. L. Rev. 51, 103 (2004) (arguing that “the Members of the NLRB are able to separate their political and institutional roles and do what is best for national labor policy”).

[40] See e.g.,James A. Gross, Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947-1994 275 (1995); Amy Semet, Political Decision-Making at the National Labor Relations Board: An Empirical Examination of the Board’s Unfair Labor Practice Decisions through the Clinton and Bush II Years, 37:2 Berkeley J. of Employment & Labor Law 223, 233 (2016) (“there have only been a few scholarly studies of the NLRB’s adjudicatory decisions, with scholars generally finding that the party of the appointing president influences the NLRB’s output.”); NBC, Politics Stymie National Labor Relations Board, Sept. 2009, http://www.nbcnews.com/id/32715894/ns/politics-more_politics/t/politics-stymie-national-labor-relations-board/#.W3WlIrHMygQ (discussing the effect that the politicized nature of appointments has had on the appointment process).

[41] See Turner, supra note 35, at 711 (finding “ideology has been a persistent and, in many instances, a vote-predictive factor when the Board decides certain legal issues”).

[42] William B. Gould IV, Labored Relations: Law, Politics, and the NLRB–A Memoir 15 (2000).

[43] Terry M. Moe, Control and Feedback in Economic Regulation: The Case of the NLRB, 79 Am. Pol. Sci. Rev. 1094, 1102 (1985).

[44] 29 U.S.C. § 153(a) (2018) (“The National Labor Relations Board created by this subchapter prior to its amendment by the Labor Management Relations Act, 1947, is continued as an agency of the United States.”).

[45] NLRB v. Mayco Plastics, Inc., 472 F. Supp. 1161, 1163 (E.D. Mich. 1979) (“In support of its petition, the NLRB argues that . . . orders of the NLRB are not self-enforcing”).

[46] Id.

[47] Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 706 (1989); 29 U.S.C. § 160(f) (2018).

[48] See, e.g., NLRB v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 787 (1990) (“[A] Board rule is entitled to deference even if it represents a departure from the Board's prior policy.”).

[49] Claire Tuck, Policy Formulation at the NLRB: A Viable Alternative to Notice and Comment Rulemaking, 27 Cardozo L. Rev. 1117, 1122–23 (2005) (observing that generally, “[f]our years after a change in presidential administration and a corresponding change in membership at the Board, the Board is again abruptly overruling past decisions”).

[50] See discussion supra Section I.A.

[51] See Ralph K. Winter, Jr., Judicial Review of Agency Decisions: The Labor Board and the Court, 1968 Sup. Ct. Rev. 53, 63 (noting that NLRB is not constrained by stare decisis like actual judicial courts).

[52] See NLRB v. J. Weingarten, Inc., 420 U.S. 251, 266 (1975).

[53] Id.

[54] See id. at 265–66.

[55] R. Alexander Acosta, Rebuilding the Board: An Argument for Structural Change, over Policy Prescriptions, at the NLRB, 5 FIU L. Rev. 347, 349 (2010).

[56] See Tuck, supra note 49, at 1122–23.

[57] See Acosta, supra note 55, at 349.

[58] See Daniel P. O'Gorman, Construing the National Labor Relations Act: The NLRB and Methods of Statutory Construction, 81 Temp. L. Rev. 177, 218 (2008) (arguing “the Board, as a policymaker and quasi legislature, should not feel bound by the doctrine of stare decisis to the same extent as a court and should be able to reverse precedent even when circumstances have not changed”).

[59] See Winter, supra note 51, at 58–59 (arguing that Congress wanted the NLRA administered by a body that was distinct from judicial courts and the doctrines they followed).

[60] See .The Board, Nat’l Lab. Rel. Board, https://www.nlrb.gov/who-we-are/board (last visited Aug. 16, 2018) (follow links to each Board member for information about experience and expertise).

[61] The first major ruling regarding graduate students as employees was handed down in 1972. See Adelphi University, 195 N.L.R.B. No. 107 (1972) (ruling that graduate assistants should be excluded from a bargaining unit of university faculty members because they did not share a community interest with the faculty).

[62] See discussion infra Part II C.

[63] See, e.g., Columbia U., 364 N.L.R.B. No. 90 (2016); Brown U., 342 N.L.R.B. No. 42 (2004).

[64] National Labor Relations Act of 1935, 29 U.S.C. § 152 (2016).

[65] O’Gorman, supra note 58, at 178–79.

[66] O’Gorman, supra note 58, at 178-79.

[67] See O’Gorman, supra note 58, at 182–84.

[68] See generally O’Gorman, supra note 58.

[69] Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 719 (1991).

[70] National Labor Relations Act of 1935, 29 U.S.C. § 152 (2016).

[71] See Adrian Vermeule, Interpretive Choice, 75 N.Y.U. L. Rev. 74, 85–86 (2000) (explaining that the expressio unius canon is a textual or “linguistic” canon).

[72] See generally Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution 85-101 (2005) (advocating intentionalist approach to statutory interpretation and asserting that intentionalist theories “help … statutes match their means to their overall public policy objectives, a match that helps translate the popular will into sound policy”).

[73] See O’Gorman, supra note 58, at 194.

[74] See O’Gorman, supra note 58, at 194.

[75] Caleb Nelson, What Is Textualism?, 91 Va. L. Rev. 347, 348 (2005) (noting that “intentionalists try to identify and enforce the ‘subjective’ intent of the enacting legislature”).

[76] See O’Gorman, supra note 58, at 191 (finding that textualism and intentionalism are the two primary methods of judicial statutory construction).[77] See O’Gorman, supra note 58, at 197.

[78] O’Gorman, supra note 58, at 199.

[79] Nat'l Cable & Telecommun. Ass'n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005) (noting that “the agency remains the authoritative interpreter (within the limits of reason) of [its] statutes”).

[80] See O’Gorman, supra note 58, at 197–98.

[81] Chevron, U.S.A., Inc. v. Nat. Resources Def. Council, Inc., 467 U.S. 837, 842–45 (1984).

[82] Id. at 864–66 (affirming that administrative agencies are free to create and promote policy, and are not bound by traditional statutory interpretation doctrines).

[83] Id. at 838 (noting that the EPA permissibly changed interpretation of its own definitions because an administrative agency must reconsider its policy on a continuing basis).

[84] See Adelphi U., 195 N.L.R.B. No. 107 (1972).

[85] Id.

[86] Id.

[87] The Leland Stanford Junior U., 214 N.L.R.B. No. 82 (1974).

[88] Id.

[89] Id.

[90] See N.Y. Univ., 332 N.L.R.B. 1205, 1221 (2000); The Leland Stanford Junior U., 214 N.L.R.B., No. 82 (1974); Adelphi U., 195 N.L.R.B. No. 107 (1972).

[91] Boston Med. Ctr. Corp., 330 N.L.R.B. 152, 160 (1999).

[92] N.Y. Univ., 332 N.L.R.B. 1205, 1221 (2000).

[93] Columbia Univ., 364 N.L.R.B. No. 90, at 10 (Aug. 23, 2016) (stating “the Board first held that certain university graduate assistants were statutory employees in its 2000 decision in NYU”).

[94] N.Y. Univ., 332 N.L.R.B. 1205, 1206 (2000).

[95] Id. at 1220.

[96] Compare Brown Univ., 342 N.L.R.B. 483 (2004), with Columbia Univ., 364 N.L.R.B. No. 90 (Aug. 23, 2016).

[97] Brown Univ., 342 N.L.R.B. 483, 493 (2004).

[98] Id. at 487.

[99] Id. at 487-88.

[100] Id. at 492.

[101] Id. at488 (citing Food & Drug Admin. v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000)).

[102] Id. at 488.

[103] Id. at 490.

[104] Id.

[105] Id.

[106] Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 864–66 (1984) (affirming that administrative agencies are designed to create and promote policy, and are not bound by traditional statutory interpretation doctrines).

[107] Brown Univ., 342 N.L.R.B. 483, 485–86, 488 (2004).

[108] Id. at 485.

[109] Id. at 489.

[110] Id. at 486.

[111] See discussion supra Part II.B.

[112] Columbia Univ., 364 N.L.R.B. No. 90, at 3 (Aug. 23, 2016).

[113] See id. at 3–7.

[114] Id. at 5–7.

[115] Id. at 25.

[116] Id.

[117] See discussion supra p.12.

[118] Columbia Univ., 364 N.L.R.B. No. 90, at 31 (Aug. 23, 2016).

[119] Id. at 10–12, 14.

[120] See id. at 6–8.

[121] Id. at 8.

[122] Id. at 9.

[123] Id. at 7-8.

[124] See discussion supra Part I.A.

[125] See generally Winter, supra note 48, at 64.

[126] O’Gorman, supra note 58, at 178.

[127] O’Gorman, supra note 58,at 178–79.

[128] Compare Brown Univ., 342 N.L.R.B. No. 42, 483 (July 13, 2004), with Columbia Univ., 364 N.L.R.B. No. 90 (Aug. 23, 2016).

[129] O’Gorman, supra note 58,at 199.

[130] Columbia University, 364 N.L.R.B. No. 90, at 6 (Aug. 23, 2016).

[131] O’Gorman, supra note 58 at 199; see also O’Gorman, supra note 58, at 235 (“Republican and Democratic Board members seem to use, in different cases, whatever tools of statutory construction aid them in reaching the desired outcome. While the Board thus purports to act like a court and purports to use judicial methods of statutory construction, the Board is perhaps engaging in policymaking under the guise of interpretation.”). 

[133] National Labor Relations Act, 29 U.S.C. § 152(3) (2016).

[134] Columbia University, 364 N.L.R.B. No. 90, at 6–7 (Aug. 23, 2016).

[135] Id. at 2.

[136] Neal H. Hutchens & Melissa B. Hutchens, Catching the Union Bug: Graduate Student Employees and Unionization, 39 Gonz. L. Rev. 105, 124 (2004).

[137] Rogers, Eaton, & Voos, Effects of unionization on graduate student employees: Faculty-student relations, academic freedom, and pay, 66 ILR Review, 487 (2014).

[138] Beryl Lieff Benderly, The Implications of Graduate Student Unionization, (Sep. 2, 2016, 11:00 am), http://www.sciencemag.org/careers/2016/09/implications-graduate-student-unionization.

[139] Rogers, supra note 137 at 497-98.

[140] See generally id.

[141] See Protecting Academic Freedom, American Association of University Professors, https://www.aaup.org/our-work/protecting-academic-freedom.

[142] Lawrence White, Fifty Years of Academic Freedom Jurisprudence, 36 J.C. & U.L. 791, 797 (2010).

[143] Regents of Univ. of California v. Bakke, 438 U.S. 265, 312 (1978).

[144] Sweezy v. State of N.H. by Wyman, 354 U.S. 234, 250 (1957).

[145] Id. at 263.

[146] Id.

[147] See, e.g., Columbia University, 364 NLRB No. 90, at 7 (Aug. 23, 2016).

[148] See J. Peter Byrne, Academic Freedom: A "Special Concern of the First Amendment", 99 Yale L.J. 251, 312­–13 (1989).

[149] See id.

[150] Matthew W. Finken, On "Institutional' Academic Freedom, 61 Tex. L. Rev. 817, 848 (1983).

[151] Higher Education Opportunity Act, 20 U.S.C.A. § 1015b(a) (2016).