Jack Goldsmith is the Learned Hand Professor of Law at Harvard Law School, where he teaches and writes about national security law, international law, internet law, and, recently, labor history. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.
Last month I outlined three “procedural hurdles” to affirmance in Mulhall: a possible absence of a private right of action, inadequate pleading, and mootness. In a good essay just posted on SSRN, Thomas Frampton, a Berkeley law grad and a law clerk for Judge Jack Weinstein (E.D.N.Y.), has identified a potential fourth problem: Respondent (and plaintiff) Martin Mulhall lacks standing to bring the lawsuit, thus depriving the court of subject matter jurisdiction. As Frampton notes, the district court in 2009 accepted a version of this argument, but the Eleventh Circuit reversed, concluding that “Mulhall has a legally cognizable associational interest . . . at imminent risk of invasion, because Mardi Gras’ provision of considerable and varied organizing assistance pursuant to the MOA will substantially increase the likelihood that Mulhall will be unionized against his will.”
Thomas analyzes and rejects this and a number of other possible arguments for standing. His most trenchant point, I think, is that Mulhall cannot be “unionized against his will” or suffer prospective associational harm from the enhanced likelihood of unionization as a result of the neutrality agreement because Florida is a right-to-work state, which means that Mulhall cannot be compelled to join the union or pay a “fair share fee” for collective bargaining expenses incurred on his behalf.
Neither Petitioner’s briefs nor the amicus briefs on its behalf raise the standing issue. But of course standing goes to subject matter jurisdiction and can be raised at any time, including by the Court sua sponte.
Daily News & Commentary
Start your day with our roundup of the latest labor developments. See all
November 24
Labor leaders criticize tariffs; White House cancels jobs report; and student organizers launch chaperone program for noncitizens.
November 23
Workers at the Southeastern Pennsylvania Transportation Authority vote to authorize a strike; Washington State legislators consider a bill empowering public employees to bargain over workplace AI implementation; and University of California workers engage in a two-day strike.
November 21
The “Big Three” record labels make a deal with an AI music streaming startup; 30 stores join the now week-old Starbucks Workers United strike; and the Mine Safety and Health Administration draws scrutiny over a recent worker death.
November 20
Law professors file brief in Slaughter; New York appeals court hears arguments about blog post firing; Senate committee delays consideration of NLRB nominee.
November 19
A federal judge blocks the Trump administration’s efforts to cancel the collective bargaining rights of workers at the U.S. Agency for Global Media; Representative Jared Golden secures 218 signatures for a bill that would repeal a Trump administration executive order stripping federal workers of their collective bargaining rights; and Dallas residents sue the City of Dallas in hopes of declaring hundreds of ordinances that ban bias against LGBTQ+ individuals void.
November 18
A federal judge pressed DOJ lawyers to define “illegal” DEI programs; Peco Foods prevails in ERISA challenge over 401(k) forfeitures; D.C. court restores collective bargaining rights for Voice of America workers; Rep. Jared Golden secures House vote on restoring federal workers' union rights.