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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June 30
Antidiscrimination scholars question McDonnell Douglas, George Washington University Hospital bargained in bad faith, and NY regulators defend LPA dispensary law.
June 29
In today’s news and commentary, Trump v. CASA restricts nationwide injunctions, a preliminary injunction continues to stop DOL from shutting down Job Corps, and the minimum wage is set to rise in multiple cities and states. On Friday, the Supreme Court held in Trump v. CASA that universal injunctions “likely exceed the equitable authority that […]
June 27
Labor's role in Zohran Mamdani's victory; DHS funding amendment aims to expand guest worker programs; COSELL submission deadline rapidly approaching
June 26
A district judge issues a preliminary injunction blocking agencies from implementing Trump’s executive order eliminating collective bargaining for federal workers; workers organize for the reinstatement of two doctors who were put on administrative leave after union activity; and Lamont vetoes unemployment benefits for striking workers.
June 25
Some circuits show less deference to NLRB; 3d Cir. affirms return to broader concerted activity definition; changes to federal workforce excluded from One Big Beautiful Bill.
June 24
In today’s news and commentary, the DOL proposes new wage and hour rules, Ford warns of EV battery manufacturing trouble, and California reaches an agreement to delay an in-person work mandate for state employees. The Trump Administration’s Department of Labor has advanced a series of proposals to update federal wage and hour rules. First, the […]