Publications

2014
Why Should Unions Negotiate for Workers Who Don’t Pay Their Fair Share?
Benjamin I. Sachs and Catherine Fisk. 7/9/2014. “Why Should Unions Negotiate for Workers Who Don’t Pay Their Fair Share?” L.A. Times. Publisher's Version
n an Era of Accelerating Attention to Workplace Equity: What Place for Bangladesh? Reflections on the Bangladesh Development Conference 2014 at Harvard University
Arnold M. Zack. 6/14/2014. “n an Era of Accelerating Attention to Workplace Equity: What Place for Bangladesh? Reflections on the Bangladesh Development Conference 2014 at Harvard University.” Boston Global Forum online. Publisher's Version
Margaret Thatcher, the Thatcherite Intellectuals, and the Fate of Keynes
John Trumpbour. 5/2014. “Margaret Thatcher, the Thatcherite Intellectuals, and the Fate of Keynes.” Industrial Relations Journal, Special Issue on Margaret Thatcher’s Legacy, 45:3, Pp. 250-265. Publisher's VersionAbstract
In the early 1970s, major political leaders of the centre-right such as Richard M. Nixon proudly declared their allegiance to the Keynesian consensus and the welfare state. By the mid-1970s, this consensus unravelled so rapidly that even the leader of Britain's Labour Party came to regard Keynesian medicine as ineffectual. Seeking to demolish several foundations of the Keynesian welfare state, Thatcherism soon attracted economists and policy pundits eager to defend its achievements, including in North America at such bygone hotbeds of Keynesianism as Harvard University. This essay seeks to probe cherished mythologies of Thatcherism that she restored Britain's economic dynamism, streamlined government and revived plucky entrepreneurship. Her intellectual admirers have largely averted their eyes from law-and-order repression and the rewards delivered to politically connected insiders, most dramatically those policies unleashing finance capitalists and extending the tentacles of the Murdoch media empire.
Falling Behind? Boom, Bust, and the Global Race for Scientific Talent
Michael S. Teitelbaum. 2014. Falling Behind? Boom, Bust, and the Global Race for Scientific Talent . Princeton University Press.Abstract

Is the United States falling behind in the global race for scientific and engineering talent? Are U.S. employers facing shortages of the skilled workers that they need to compete in a globalized world? Such claims from some employers and educators have been widely embraced by mainstream media and political leaders, and have figured prominently in recent policy debates about education, federal expenditures, tax policy, and immigration. Falling Behind? offers careful examinations of the existing evidence and of its use by those involved in these debates.

These concerns are by no means a recent phenomenon. Examining historical precedent, Michael Teitelbaum highlights five episodes of alarm about "falling behind" that go back nearly seventy years to the end of World War II. In each of these episodes the political system responded by rapidly expanding the supply of scientists and engineers, but only a few years later political enthusiasm or economic demand waned. Booms turned to busts, leaving many of those who had been encouraged to pursue science and engineering careers facing disheartening career prospects. Their experiences deterred younger and equally talented students from following in their footsteps—thereby sowing the seeds of the next cycle of alarm, boom, and bust.

Falling Behind? examines these repeated cycles up to the present, shedding new light on the adequacy of the science and engineering workforce for the current and future needs of the United States.

Benjamin I. Sachs and Catherine L. Fisk. 2014. “Restoring Equity in Right-to-Work Law.” U.C. Irvine Law Revue, Vol. 4, 2, Pp. 857-879. Publisher's VersionAbstract
Under United States labor law, when a majority of employees in a bargaining unit chooses union representation, all employees in the unit are represented by the union. Federal law, moreover, requires the union to represent all workers in a bargaining unit equally with respect to both collective bargaining and disciplinary matters. As a general rule, federal law enables unions to require employees to pay for the services that unions are obligated to provide them. Twenty-four states, however, have enacted laws granting union-represented employees the right to refuse to pay the union for the services that federal law requires the union to offer. As such, the intersection of federal labor law and state right to work laws results in a mandate that unions provide services for free to any employee who declines to pay dues. This paper proposes three approaches to addressing this feature of U.S. labor law. First, the paper argues that under a proper reading of the NLRA states may not prohibit all mandatory payments from workers to unions. In particular, the paper shows that states must permit collective bargaining agreements requiring so-called objectors (or nonmembers) to pay dues and fees lower than those required of members. Second, the paper argues that in right to work states federal law ought to relax the requirement of exclusive representation and allow unions to organize, bargain on behalf of, and represent only those workers who affirmatively choose to become members. This proposal would implement a members-only bargaining regime in right to work states. Third, the paper contends that the NLRB ought to abandon its rule forbidding unions from charging objecting nonmembers a fee for representation services that the union provides directly and individually to them.
Paradigm lost: employment-based defined benefit plans and the current understanding of fiduciary duty
Larry W. Beeferman. 2014. “Paradigm lost: employment-based defined benefit plans and the current understanding of fiduciary duty.” In Cambridge Handbook of Institutional Investment and Fiduciary Duty, edited by James P. Hawley, Andreas G. F. Hoepner, Keith L. Johnson, Joakim Sandberg, and Edward J. Waitzer, Pp. 100-110. Cambridge UK: Cambridge University Press.Abstract

In this chapter we will contend the following: the trust model is a poor fit for the relationships in which plans are embedded. Those relationships warrant, at minimum, decision-makers considering members’ interests as workers at the associated enterprise, which derive from the financial risks of plan investments in other enterprises in general, and arguably the impact of harms that result from the behaviors of specific, sometimes competing enterprises. We express skepticism that these relationships justify taking account of members’ interests other than as members or workers. However it can be justified based on a different line of argument. It concerns the extent to which members (or others) who participate in collective vehicles for investment should retain the voice they would otherwise have with respect to advancement of their interests in the case of their own individual investment decisions. Vindication of a broader range of members’ interests might have merit as a matter of social policy rather than as one of advancing those interests for their own sake.

The foregoing points are made within the context of what is deemed to be decision-makers’ duty
of loyalty. However, we briefly explore the import of what is termed their “duty of care” for the issues explored. In doing so, we assert that the statutory framework that defined that duty was largely devoid of substantive content. The content was supplied by investment theories and practices at best insensitive to the relationships in which plans are grounded. Moreover, those theories and practices embodied problematic claims about the goals that might legitimately be pursued by the enterprises in which plans might invest. These claims stand in tension if not in direct conflict with those of members’ interests that decision-makers might appropriately seek to advance. The foregoing suggests a close or intimate connection between how fiduciary duty, with respect to investment in enterprises, and the legitimate goals that might be pursued by those enterprises are understood.

2013
Benjamin I. Sachs. 9/2/2013. “A New Kind of Union.” New York Times, Pp. A17. Publisher's Version
Larry Beeferman and Allan Wain. 8/2013. I N F R A S T R U C T U R E: Deciding Matters. Publisher's VersionAbstract

Second in a series of papers, the first entitled ‘Infrastructure: Defining Matters’

This paper builds upon the understanding of infrastructure developed in “Infrastructure:Defining Matters.” Through a primarily case study approach it explores in-depth a particular method of deciding upon infrastructure investments and identifies ways that decision-making can be strengthened drawing upon that understanding and a revised version of the linked categories for analysis based on them, which were described in the previous publication.

The Citizen's Share: Putting Ownership Back into Democracy
Richard B. Freeman, Joseph R. Blasi, and Douglas Kruse. 2013. The Citizen's Share: Putting Ownership Back into Democracy. Yale University Press.
The Unbundled Union: Politics Without Collective Bargaining
Benjamin I. Sachs. 2013. “The Unbundled Union: Politics Without Collective Bargaining.” Yale Law Journal, Vol. 123, Pp. 148-207. Publisher's VersionAbstract
Public policy in the United States is disproportionately responsive to the wealthy, and the traditional response to this problem, campaign finance regulation, has failed. As students of politics have long recognized, however, political influence flows not only from wealth but also from organization, a form of political power open to all income groups. Accordingly, as this Essay argues, a promising alternative to campaign finance regulations is legal interventions designed to facilitate political organizing by the poor and middle class. To date, the most important legal intervention of this kind has been labor law, and the labor union has been the central vehicle for this type of organizing. But the labor union as a political-organizational vehicle suffers a fundamental flaw: unions bundle political organization with collective bargaining, a highly contested form of economic organization. As a result, opposition to collective bargaining impedes unions' ability to serve as a political-organizing vehicle for lower and middle-income groups. Public policy in the United States is disproportionately responsive to the wealthy, and the traditional response to this problem, campaign finance regulation, has failed. As students of politics have long recognized, however, political influence flows not only from wealth but also from organization, a form of political power open to all income groups. Accordingly, as this Essay argues, a promising alternative to campaign finance regulations is legal interventions designed to facilitate political organizing by the poor and middle class. To date, the most important legal intervention of this kind has been labor law, and the labor union has been the central vehicle for this type of organizing. But the labor union as a political-organizational vehicle suffers a fundamental flaw: unions bundle political organization with collective bargaining, a highly contested form of economic organization. As a result, opposition to collective bargaining impedes unions' ability to serve as a political-organizing vehicle for lower and middle-income groups. This Essay proposes that labor law unbundle the union, allowing employees to organize politically through the union form without also organizing economically for collective bargaining purposes. Doing so would have the immediate effect of liberating political-organizational efforts from the constraints of collective bargaining, an outcome that could mitigate representational inequality. The Essay identifies the legal reforms that would be necessary to enable such unbundled "political unions" to succeed. It concludes by looking beyond the union context and suggesting a broader regime of reforms aimed at facilitating political organizing by those income groups for whom representational inequality is now a problem.
2012
Larry Beeferman and Allan Wain. 12/2012. I N F R A S T R U C T U R E: Defining Matters. Publisher's VersionAbstract
This paper is resource for pension funds in two ways. One is to help them gain a more useful understanding of what infrastructure “is” or might be believed to “be.” The other is to suggest how that understanding relates to ways of thinking about infrastructure and how those ways, in turn, are linked to choices about infrastructure investments for their portfolios. The analysis and findings are based in part on a survey of U.S. public sector pension funds which have made such investments.
What Happened to Shared Prosperity and Full Employment and How to Get Them Back: a Seussian Perspective
Richard B. Freema. 11/12/2012. “What Happened to Shared Prosperity and Full Employment and How to Get Them Back: a Seussian Perspective.” In Reconnecting to Work -- Policies to Mitigate Long-Term Unemployment and Its Consequences , edited by Lauren D. Appelbaum, Pp. vii-xviii Foreword. W.E. Upjohn Institute. Publisher's Version
1/1/2012. Key Performance Indicators for Investors to Assess Labor & Human Rights Risks Faced by Global Corporations in Supply Chains. IRRS Institute. Publisher's Version
Corporations Launch First-Of-A-Kind Testing Of New Labor & Human Rights Supply Chain Performance Indicators
Larry Beeferman and Aaron Bernstein. 1/2012. Corporations Launch First-Of-A-Kind Testing Of New Labor & Human Rights Supply Chain Performance Indicators . Developed by a collaboration of The Fair Labor Association and The Pensions and Capital Stewardship Project at Harvard Law School.Abstract

Nine companies this month launched a process to test newly-developed Key Performance Indicators (KPIs) to assess reputational risks and operational shortcomings associated with labor and human rights factors in corporate supply chains. Collectively, these companies source goods from 1,755 factories that employ around 1.8 million workers in 62 countries.  Once tested, finalized, and implemented, these standardized KPIs could allow interested parties to assess companies’ progress toward reducing labor and human rights risks. 

[Download Press Release]

Richard B. Freeman and Marit Rehavi. 2012. How the Internet is Changing the Activity of Union Representatives in the UK: A study of www.unionreps.org.uk.
Benjamin I. Sachs. 2012. “Unions, Corporations, and Political Opt-Out Rights after Citizens United.” Columbia Law Review , Vol. 112, Pp. 800-869. J-stor linkAbstract
Citizens United upends much of campaign finance law, but it maintains at least one feature of that legal regime: the equal treatment of corporations and unions. Prior to Citizens United, that is, corporations and unions were equally constrained in their ability to spend general treasury funds on federal electoral politics. After the decision, campaign finance law leaves both equally unconstrained and free to use their general treasuries to finance political expenditures. But the symmetrical treatment that Citizens United leaves in place masks a less visible, but equally significant, way in which the law treats union and corporate political spending differently. Namely, federal law prohibits a union from spending its general treasury funds on politics if individual employees object to such use - employees, in short, enjoy a federally protected right to opt out of funding union political activity. In contrast, corporations are free to spend their general treasuries on politics even if individual shareholders object - shareholders enjoy no right to opt out of financing corporate political activity. This Article assesses whether the asymmetric rule of political opt-out rights is justified. The Article first offers an affirmative case for symmetry grounded in the principle that the power to control access to economic opportunities - whether employment or investment based - should not be used to secure compliance with or support for the economic actor's political agenda. It then addresses three arguments in favor of asymmetry. Given the relative weakness of these arguments, the Article suggests that the current asymmetry in opt-out rules may be unjustified. The Article concludes by pointing to constitutional questions raised by this asymmetry, and by arguing that lawmakers would be justified in correcting it.
2011
Supply-Chain Labour and Human Rights
Larry Beeferman and Aaron Bernstein. 12/2011. Supply-Chain Labour and Human Rights. Publisher's VersionAbstract
Prepared at the request of the Australian Council of Superannuation Investors (ACSI), this report  benchmarks the supply-chain labor and human rights policies of the S&P/ASX 200 (ASX 200) against 2,500 of the largest global companies building on the work of the Project’s previous publication “Benchmarking Corporate Policies on Labor and Human Rights in Global Supply Chains,” (Occasional Paper No. 5)  On the whole, the ASX 200 companies lag their peers in other listed markets, with a mere 17% issuing a labor and human rights policy covering their supply chain, versus 35% in the global sample. This trend carries across when analyzing company procedures to implement policies. There is some exception to this pattern for occupational health and safety policies of ASX 200 companies, which were notably strong, which may reflect the impact of strict health and safety legislation in Australia. The largest Australian companies (by market capitalization) also managed to measure up to their global peers on a number of indicators. The majority of ASX 200 firms however paled in comparison to the performance of the global sample
Capital Stewardship in the United States: Worker Voice and the Union Role in the Management of Pension Fund Assets
Larry W. Beeferman. 2/2011. “Capital Stewardship in the United States: Worker Voice and the Union Role in the Management of Pension Fund Assets.” Transfer: European Review of Labour and Research, vol. 17 , no 1, Pp. 43-57.Abstract
This article describes US unions’ efforts at capital stewardship, that is, the investment and management of the assets accumulated in pension and other retirement plans (frequently termed ‘workers’ or ‘labour’s capital’) — on behalf of plan participants and in the interest of workers more generally. It focuses particularly on the opportunities for direct worker voice in the governance and management of those assets through workers serving as trustees of the plans. The article explores the challenges these trustees face in navigating that role in addition to their possibly conflicting role as a union member or official. It details unions’ visions for capital stewardship and their efforts to integrate trustees’ activities within the broader range of union activities. Finally, it describes ways in which unions have collaborated in support of their trustees and to develop a cross-union capital stewardship agenda.
Origins of the Financial Markets Meltdown, the Need for Financial Reform, and the Dodd-Frank Bill Response
Larry Beeferman. 1/2011. “Origins of the Financial Markets Meltdown, the Need for Financial Reform, and the Dodd-Frank Bill Response.” Commissioned for the National Conference on Public Employee Retirement Systems. Publisher's VersionAbstract
This paper reviews: (1) what typically are seen as important near- or short-term causes linked to the financial crisis, (2) the kinds of individual and institutional behaviors that many believe contributed to these causes, (3) the most important among the provisions of recently enacted financial markets reform legislation – the Dodd-Frank Act – ostensibly calculated to change those behaviors, and (4) some critical perspective on whether the provisions are suited to the task.
2010
Richard B. Freeman. 10/28/2010. “What Can We Learn from NLRA to Create Labor Law for the 21st Century?” In SYMPOSIUM: The National Labor Relations Act at 75: Its Legacy and its Future. PDF Version

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