Public-Sector Unionism Archives - Columbia Law Review

Introduction Union power in the United States has hit a nadir. Less than eleven percent of the labor force is unionized—a lower percentage than at any point since World War II.[footnote]See, e.g., Jake Rosenfeld, What Unions No Longer Do 1 (2014); Kate Andrias, The New Labor Law, 126 Yale L.J. 2, 5 (2016) [hereinafter Andrias, The New Labor Law] (“American labor unions have collapsed. While they once bargained for more than a third of American workers, unions now represent only about a tenth of the labor market and even less of the private sector.”); Press Release, Bureau of Labor Statistics, Union Members—2019 (Jan. 22, 2020), https://www.bls.gov/news.release/pdf/union2.pdf [https://perma.cc/TM8P-86WU].[/footnote] Twenty-eight states (including six since 2000) have passed “right to work” laws that restrict the ability of unions to collect dues from workers and reach exclusive agreements with employers.[footnote]See Right to Work States Timeline, Nat’l Right to Work Comm., http://www.nrtw.org/right-to-work-states [https://perma.cc/CR5B-XVG2] (last visited Feb. 7, 2020).[/footnote] Recent years have seen union opponents aggressively (and often successfully) litigate claims that would make it much more difficult for unions to organize workers and raise money.[footnote]See, e.g., Janus v. Am. Fed’n of State, Cty. & Mun. Emps., Council 31, 138 S. Ct. 2448, 2486 (2018); Friedrichs v. Cal. Teachers Ass’n, 136 S. Ct. 1083, 1083 (2016) (mem.) (per curiam); Harris v. Quinn, 573 U.S. 616, 655–56 (2014); Unite Here Local 355 v. Mulhall, 571 U.S. 83, 83 (2013) (mem.) (per curiam); Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 321–23 (2012).[/footnote] At the same time, “gig economy” companies, globalization, and the forces of neoliberalism have undermined worker solidarity and the logic of labor law.[footnote]See, e.g., David Graeber, The Globalization Movement: Some Points of Clarification, in The Anthropology of Development and Globalization: From Classical Political Economy to Contemporary Neoliberalism 169, 169–70 (Marc Edelman & Angelique Haugerud eds., 2005); Raphael Kaplinsky, Globalization, Poverty and Inequality: Between a Rock and a Hard Place 163–232 (2005); Roberto Mangabeira Unger, Free Trade Reimagined: The World Division of Labor and the Method of Economics 193–98 (2007); V.B. Dubal, The Drive to Precarity: A Political History of Work, Regulation, and Labor Advocacy in San Francisco’s Taxi and Uber Economies, 38 Berkeley J. Emp. & Lab. L. 73, 76 (2017); Jennifer Gordon, Regulating the Human Supply Chain, 102 Iowa L. Rev. 445, 454–55 (2017); Brishen Rogers, Employment Rights in the Platform Economy: Getting Back to Basics, 10 Harv. L. & Pol’y Rev. 479, 480–81 (2016); Noah D. Zatz, Does Work Law Have a Future if the Labor Market Does Not?, 91 Chi.-Kent L. Rev. 1081, 1111–14 (2016).[/footnote] Despite significant donations to Democratic political campaigns, unions have had limited success in convincing politicians on either side of the aisle to prioritize positions or push for legislation that specifically benefits organized labor and its members.[footnote]See, e.g., William R. Corbett, “The More Things Change, . . .”: Reflections on the Stasis of Labor Law in the United States, 56 Vill. L. Rev. 227, 227–28 (2011) (recounting the failure of Democratic administrations to advance the legislative interests of organized labor); Zev J. Eigen & David Sherwyn, A Moral/Contractual Approach to Labor Law Reform, 63 Hastings L.J. 695, 698 (2012) (“[L]abor law reform has been a failed promise under the previous two Democratic administrations, and likely will be under the current one as well.”).[/footnote] But not all unions are similarly situated, and not all have floundered. As private-sector unions have struggled, some public-sector unions remain powerful political forces, extracting concessions from government employers and steering policies to benefit their members.[footnote]See Andrias, The New Labor Law, supra note 1, at 5 n.2, 21; Jon D. Michaels, Privatization’s Progeny, 101 Geo. L.J. 1023, 1045 (2013) (“Government employees have fared far better than their counterparts in the private sector, where effective unionization has long been in a state of free fall. But . . . [l]abor scholars urge observers not to be misled by the comparatively rosy picture that stable public-sector union membership seems to paint.”).[/footnote] Enter an incongruous manifestation of contemporary labor’s power: the police union. In many ways, police unions flout both traditional assumptions about organized labor and contemporary framings of the new labor movement.[footnote]But see Richard B. Freeman & Casey Ichniowski, The Public Sector Look of American Unionism, in When Public Sector Workers Unionize 1, 1 (Richard B. Freeman & Casey Ichniowski eds., 1988) (“Unions of fire fighters and police were well-established as exemplars of the craft-type organizations that once dominated American labor.”).[/footnote] Where unions often swing left, police unions swing right.[footnote]See infra section II.B.[/footnote] Where much modern labor organizing focuses on low-wage workers, police unions protect higher-wage professionals.[footnote]See infra section III.D.[/footnote] Where unionism and antiracism sometimes have travelled hand-in-hand,[footnote]See Eric Schickler, Racial Realignment: The Transformation of American Liberalism, 1932–1965, at 1–13 (2016) (“The CIO and its allies fused ‘class’ and ‘race’ in an alignment that was forged amid the vast social and ideological turmoil of the 1930s and early 1940s.”); infra section III.D. But see Reuel Schiller, Forging Rivals: Race, Class, Law, and the Collapse of Postwar Liberalism 1–12 (2015) (introducing the collapse of the alliance between civil rights groups and labor unions in the San Francisco Bay Area in the 1960s).[/footnote] police unions still represent predominantly white workers and frequently take public stands that are hostile to racial justice or that express outright racism.[footnote]See Paul Butler, The Fraternal Order of Police Must Go, Nation (Oct. 11, 2017), https://www.thenation.com/article/the-fraternal-order-of-police-must-go [https://perma.cc/SRD9-6GB4] [hereinafter Butler, The Fraternal Order of Police] (“The FOP’s national leadership consists of seven white men . . . . [This] is striking in an organization that claims that 30 percent of its members are officers of color. And many local chapters appear to be run by white cops—even in cities with police forces that are predominantly of color.”).[/footnote] Indeed, after decades of disinterest, scholars recently have begun to study police unions because of their role in hampering criminal justice reform, shielding officers accused of violence against people of color, and defending racially disparate policing practices.[footnote]See, e.g., Catherine L. Fisk & L. Song Richardson, Police Unions, 85 Geo. Wash. L. Rev. 712, 713–22 (2017); Rachel A. Harmon, The Problem of Policing, 110 Mich. L. Rev. 761, 813–15 (2012) [hereinafter Harmon, Problem of Policing]; Aziz Z. Huq & Richard H. McAdams, Litigating the Blue Wall of Silence: How to Challenge the Police Privilege to Delay Investigation, 2016 U. Chi. Legal Forum 213, 238–39; Kate Levine, Police Suspects, 116 Colum. L. Rev. 1197, 1222 (2016) [hereinafter Levine, Police Suspects]; Marcia L. McCormick, Our Uneasiness with Police Unions: Power and Voice for the Powerful?, 35 St. Louis U. Pub. L. Rev. 47, 54–63 (2015); Stephen Rushin, Police Disciplinary Appeals, 167 U. Pa. L. Rev. 545, 557–61 (2019); Stephen Rushin, Police Union Contracts, 66 Duke L.J. 1191, 1222–39 (2017) [hereinafter Rushin, Police Union Contracts]; Stephen Rushin, Structural Reform Litigation in American Police Departments, 99 Minn. L. Rev. 1343, 1404–05 (2015) [hereinafter Rushin, Structural Reform Litigation]; Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885, 938–47 (2014); Seth W. Stoughton, The Incidental Regulation of Policing, 98 Minn. L. Rev. 2179, 2206 (2014) [hereinafter Stoughton, Incidental Regulation of Policing]; Dhammika Dharmapala, Richard H. McAdams & John Rappaport, Collective Bargaining and Police Misconduct: Evidence from Florida 2–3 (Univ. of Chi. Coase-Sandor Institute for Law & Econ., Research Paper No. 831, 2018), https://ssrn.com/abstract=3095217 [https://perma.cc/VTN3-6JVC]; Maybell Romero, Prosecutors and Police: An Unholy Union 7–16 (Sept. 7, 2019) (unpublished manuscript), https://ssrn.com/abstract=3447669 [https://perma.cc/4SBH-XVPC].[/footnote] In a moment when labor law scholarship tends to treat the interests of unions and the political left as inextricably linked,[footnote]See, e.g., Andrias, The New Labor Law, supra note 1, at 32–37; Benjamin I. Sachs, The Unbundled Union: Politics Without Collective Bargaining, 123 Yale L.J. 148, 168–71 (2013) [hereinafter Sachs, Unbundled Union]. But see generally Thaddeus Russell, Out of the Jungle: Jimmy Hoffa and the Remaking of the American Working Class (2003) [hereinafter Russell, Out of the Jungle] (critiquing left labor historians and arguing that the labor movement should be understood in terms of worker self-interest).[/footnote] police unions provide a powerful counterexample. Or do they? This Essay examines the strange case of police unions and asks how they are (and are not) representative of U.S. unionism. More pointedly, this Essay asks what increasingly common critiques of police unions should mean for policing reform and the future of public-sector unionism. In an effort to construct a more nuanced picture of police unions’ functions, this Essay situates the role of police unions within two disparate scholarly debates: (1) the literature on policing reform and (2) the literature on public-sector unions. How are police unions different from other public-sector unions, and how might critiques and defenses of public-sector unions apply to police unions? Can scholars of policing avoid questions that plague (or define) the literature on the rights and social power of workers? Can labor law scholars continue to speak of “labor” as a monolith without grappling with the problematic aspects of police unions? And, perhaps more pointedly, how much does scholarly and political discomfort with police unions reflect a deeper discomfort with unions that are powerful and with collective action by workers other than the most marginalized? In tackling organized labor’s place in law enforcement, this Essay engages with an emerging literature that takes police unions seriously as a significant component of the modern criminal system.[footnote]See supra note 12.[/footnote] For decades, criminal procedure scholars have focused on judicial opinions as defining and shaping police practices.[footnote]See, e.g., Barbara Allen Babcock, Fair Play: Evidence Favorable to an Accused and Effective Assistance of Counsel, 34 Stan. L. Rev. 1133, 1134–36 (1982); Yale Kamisar, Looking Back on the “Stone Age” of Criminal Procedure, 13 Ohio St. J. Crim. L. 471, 472 (2016); Nancy J. King & Susan R. Klein, Essential Elements, 54 Vand. L. Rev. 1467, 1488–95 (2001).[/footnote] They framed the law of policing in terms of constitutional decisions rendered by appellate judges.[footnote]See, e.g., Peter Arenella, Rethinking the Functions of Criminal Procedure: The Warren and Burger Courts’ Competing Ideologies, 72 Geo. L.J. 185, 189–95 (1983); Dan M. Kahan & Tracey L. Meares, Foreword: The Coming Crisis of Criminal Procedure, 86 Geo. L.J. 1153, 1158 (1998) (noting the Supreme Court’s strategy not to confront race directly but instead confront it with “general constitutional standards that d[o] not explicitly address race”); William J. Stuntz, The Uneasy Relationship Between Criminal Procedure and Criminal Justice, 107 Yale L.J. 1, 3 (1997) (finding that the scholarly literature on the rules of criminal procedure focuses largely on constitutional debates and judicial glosses, providing only a limited picture of a larger system that doesn’t play by the rules). But see Rachel Harmon, Reconsidering Criminal Procedure: Teaching the Law of the Police, 60 St. Louis U. L.J. 391, 392–96 (2016) (emphasizing how much of the regulation of police comes from nonconstitutional sources, such as state legislatures, labor and employment law, common law doctrines of entrapment, and local ordinances).[/footnote] Formal and informal rules crafted outside of the courtroom by municipalities, police unions, and police departments had little place in the scholarly discourse surrounding and critiquing police misconduct.[footnote]But see Stephen C. Halpern, Police Employee Organizations and Accountability Procedures in Three Cities: Some Reflections on Police Policy-Making, 8 Law & Soc’y Rev. 561, 561–77 (1973) (“Through litigation and the threat of litigation, such civil liberties as the right to criticize department policy or superiors, to join unorthodox organizations and to participate in political affairs, are being developed.”); David Alan Sklansky, Police and Democracy, 103 Mich. L. Rev. 1699, 1752–53 (2005) (describing the limited discussion surrounding reform of police departments). See generally Samuel Walker, The Neglect of Police Unions: Exploring One of the Most Important Areas of American Policing, 9 Police Prac. & Res. 95, 103 (2008) [hereinafter Walker, The Neglect of Police Unions] (“The related issues of the police subculture and of organizational cultures within police departments have not received sufficient scholarly attention.”). [/footnote] But, spurred by the rise of the Movement for Black Lives[footnote]See generally About Us, Movement for Black Lives, https://policy.m4bl.org [https://perma.cc/J5ER-YDE7] (last visited Mar. 9, 2020) (“In response to the sustained and increasingly visible violence against Black communities in the U.S. and globally, . . . more than 50 organizations . . . have come together with renewed energy and purpose to articulate a common vision and agenda.”).[/footnote] and greater public access to police union contracts,[footnote]See, e.g., Police Union Contract Project, Check the Police, http://www.checkthepolice.org/#project [https://perma.cc/S693-R3KL] (last visited Feb. 7, 2020); see also Stephen Cohen, The Next Fight for Racial Justice: Police Union Reform, New Republic (Dec. 2, 2015), https://newrepublic.com/article/124811/next-fight-racial-justice-police-union-reform [https://perma.cc/76NN-B7TY].[/footnote] police unions and their collective bargaining agreements (CBAs) are becoming a bigger part of the conversation.[footnote]See supra note 12.[/footnote] Although commentators focused on police unions may have different approaches and political commitments, they tend to articulate similar critiques. Much criticism of police unions focuses on their obstructionist nature and how they prioritize the interests of their members over the interests of the public at large and the communities they police.[footnote]See infra Part I.[/footnote] These critiques are compelling—police unions shield officers and block outsider intervention in the regulation of policing. But, taken seriously, they sound like critiques of unions in general, not just police unions .[footnote]See infra Part II.[/footnote] To the extent that public-sector unionism remains a social good because of concerns for economic inequality and worker power,[footnote]See, e.g., Richard Michael Fischl, “Running the Government Like A Business”: Wisconsin and the Assault on Workplace Democracy, 121 Yale L.J. Online 39, 67 (2011) [hereinafter Fischl, Running the Government] (“[S]o long as we live in a world in which corporate contributors enjoy a considerable capacity to shape the scope and direction of our politics, it seems . . . that the countervailing voice provided by public and private-sector unions on behalf of working people is a necessary and undeniable good.”); Anne Marie Lofaso, In Defense of Public-Sector Unions, 28 Hofstra Lab. & Emp. L.J. 301, 308 (2011) (“[U]nions, including public-sector unions, are vital to a well-functioning democracy and therefore should be protected.”).[/footnote] wholeheartedly embracing these critiques seems like a risky proposition. To the extent that the critiques of police unions ring true, are these critiques of unions, police, or local government decisionmaking? How we answer this question is not simply a matter of theoretical consistency;[footnote]See Rick Hills, How Enthusiastically Should the Left Support Laws and Doctrines Protecting Public Employee Unions?, PrawfsBlawg (Sept. 2, 2018), http://prawfsblawg.blogs.com/prawfsblawg/2018/09/how-enthusiastically-should-the-left-support-laws-and-doctrines-protecting-public-employee-unions.html#more [https://perma.cc/7YPP-EF3F].[/footnote] it should be an essential component of determining what “police reform” should look like and also of understanding the role of police, unions, and the state in the criminal system and its attendant race- and class-based hierarchies. In addressing these questions, my argument unfolds in four Parts. Part I describes the dominant critique of police unions. This Part focuses on the image of the union as unaccountable, obstructionist, and conservative.[footnote]I use “conservative” here in the small “c” sense (i.e., the unions operate to protect existing structures and institutions while hampering change). That said, as discussed in section I.B, infra, critics also focus on the large “C” Conservatism of police unions (i.e., their affinity or support for Republican politicians and policies favored by the political right).[/footnote] Further, this Part situates these critiques within a broader set of concerns about police violence against people of color and other marginalized communities. Part II resituates police unions (and such critiques) within a different set of scholarly and political debates—those regarding the role of public-sector unions. In this Part, I argue that the critiques articulated in Part I resonate with the work of anti-union forces on the political right and among technocratic or neoliberal voices on the left. By way of analogy, in this Part I focus on teachers’ unions and other controversial public-sector unions. Part III seeks to test this analogy by examining a range of ways in which we might distinguish police unions from other public-sector unions. This Part asks whether critiques of police unions could be accurate, while not sweeping in other public-sector unionism or implicitly supporting a broader anti-union agenda. Perhaps police unions are just different from other unions for some reason—for example, the ability to use force against civilians, the social dynamics and power imbalances that make even rank-and-file officers more like managers (vis-à-vis civilians), the amount of bargaining power they can exercise, or the political affiliations of the unions and their members. Finally, Part IV steps back to identify the weaknesses in these distinctions. Ultimately, I argue that the challenge in articulating a theory of what makes police unions different highlights the problem with police, the problem with the way scholars think about unions, and the problems with the critiques of police unions. If what makes police unions objectionable is their views and/or the conduct of police, this speaks to a problem with police—full stop. (The problems with the unions are only issues by extension.) Adopting this understanding of the critiques would speak to a radical vision of police reform—the problem is not that police are unionized but that they have so much power by virtue of constitutional doctrine, their monopoly on state violence, and so forth. This is a critique that resonates with the growing literature on police abolition and is properly understood as a critique of police as an institution. If what makes the unions and their conduct objectionable is the commitment to their members’ interests over those of the public at large, though, then the critiques are properly understood as critiques of unions, or of public-sector unions. Adopting this understanding would make these critiques resonate troublingly with calls for “civil service reform” and dismantling of the union as a social, political, and economic institution. At the very least, this approach might suggest that support for unions rests on an image of workers’ collectives as relatively powerless.