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.
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September 15
Unemployment claims rise; a federal court hands victory to government employees union; and employers fire workers over social media posts.
September 14
Workers at Boeing reject the company’s third contract proposal; NLRB Acting General Counsel William Cohen plans to sue New York over the state’s trigger bill; Air Canada flight attendants reject a tentative contract.
September 12
Zohran Mamdani calls on FIFA to end dynamic pricing for the World Cup; the San Francisco Office of Labor Standards Enforcement opens a probe into Scale AI’s labor practices; and union members organize immigration defense trainings.
September 11
California rideshare deal advances; Boeing reaches tentative agreement with union; FTC scrutinizes healthcare noncompetes.
September 10
A federal judge denies a motion by the Trump Administration to dismiss a lawsuit led by the American Federation of Government Employees against President Trump for his mass layoffs of federal workers; the Supreme Court grants a stay on a federal district court order that originally barred ICE agents from questioning and detaining individuals based on their presence at a particular location, the type of work they do, their race or ethnicity, and their accent while speaking English or Spanish; and a hospital seeks to limit OSHA's ability to cite employers for failing to halt workplace violence without a specific regulation in place.
September 9
Ninth Circuit revives Trader Joe’s lawsuit against employee union; new bill aims to make striking workers eligible for benefits; university lecturer who praised Hitler gets another chance at First Amendment claims.