This week marks the 40th anniversary of the Staggers Rail Act of 1980, which deregulated American freight…
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Happy 40th to the Staggers Rail Act, Which Deregulated and Saved the U.S. Rail Industry

This week marks the 40th anniversary of the Staggers Rail Act of 1980, which deregulated American freight rail and saved it from looming oblivion.

At the time of passage, the U.S. economy muddled along amid ongoing malaise, and our rail industry teetered due to decades of overly bureaucratic sclerosis.  Many other domestic U.S. industries had disappeared, and our railroads faced the same fate.  But by passing the Staggers Rail Act, Congress restored a deregulatory approach that in the 1980s allowed other U.S. industries to thrive.  No longer would government determine what services railroads could offer, their rates or their routes, instead restoring greater authority to the railroads themselves based upon cost-efficiency.

Today, U.S. rail flourishes even amid the coronavirus pandemic…[more]

October 13, 2020 • 11:09 PM

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Jester's CourtroomLegal tales stranger than stranger than fiction: Ridiculous and sometimes funny lawsuits plaguing our courts.
With a Court Ruling Unlikely, States Still Hold the Key to Checking Union Power Print
By Ben Boychuk
Thursday, March 03 2016
The CTA isn’t supposed to use collective bargaining fees for political purposes. But Friedrichs claim is that collective bargaining is politics.

Justice Antonin Scalia’s death last month was a terrible loss for the U.S. Supreme Court and for the country. Scalia was one of the sharpest minds ever to sit on the High Court. And he was one of three reliably originalist votes on the court (the other two being Clarence Thomas and Samuel Alito). His replacement, whomever it may be, will pale in comparison.

As a practical matter, however, Scalia’s death has thrown the court’s 2015-16 term into chaos.

Several cases that would have been split 5-4 with Scalia in the majority may well end up deadlocked at 4-4. In that event, the lower court’s ruling would stand, but it would have no effect beyond the circuit where the case was decided. It’s possible that some of those cases could be re-argued next term, or even later, depending on when the court has a full panel of nine justices. We won’t know until we know.

One of those cases is almost certain to be Friedrichs v. California Teachers Association, which challenges public-employee unions’ right to collect “agency shop fees” for collective bargaining purposes. The justices heard oral arguments in the case in January, and a decision was expected in May or June.

Using the courts to shape — or reshape — policy has always been risky. It’s a strategy the Left perfected in the 1960s and ’70s, especially with criminal procedure, abortion and environmental cases, aided by the Earl Warren Court. Policy is best left to the legislative branch, not the judiciary. Legislators make laws, judges say what the laws mean.

Judges deny they legislate from the bench, but they surely do. Just read some of Justice Scalia’s dissents over his 30 years on the bench.

But when the legislative branch creates an impasse, the courts are an attractive alternative. That’s been true of labor and employment law for the better part of a century.

Rebecca Friedrichs, an elementary school teacher from Orange County, California, and nine other plaintiffs argued that their union’s collective bargaining demands are really just another type of political speech, and they shouldn’t be compelled to pay to support it.

Friedrichs has a great case on the merits. The CTA is arguably the most powerful liberal lobbying group in California. Now, there’s nothing wrong with liberal lobbying groups. The trouble starts when the group uses the force of law to require all teachers — members and non-members alike — to pay about 2 percent of their salary, or around $1,000, for the privilege of working. Friedrichs’ attorneys with the Center for Individual Rights called it the “largest regime of compelled political speech in the Nation.”

The CTA isn’t supposed to use collective bargaining fees for political purposes. But Friedrichs claim is that collective bargaining is politics.

The Ninth U.S. Circuit Court of Appeals had ruled in favor of the teachers union, so the CTA most likely will continue to collect the fees and engage in politics without hindrance through the rest of this election year and beyond.

Had Scalia lived, odds are public employee unions across the United States would have taken an enormous hit five months or so before the presidential election. If and when the Supreme Court ruled that non-members would no longer be compelled to pay an agency shop fee, public employee unions would have seen a mass-exodus of members and their dues that pay for all of the unions’ political campaign activities.

How do we know that? Because that’s what happened in Wisconsin.

The New York Times on Monday published a lament disguised as a news story telling how public employee unions in Wisconsin have lost much of their power five years after the Republican legislature passed and Governor Scott Walker signed Act 10.

Who could forget the scene of the entire Democratic caucus of the state legislature decamping for Illinois in a brazen effort to deny Republicans a full quorum? Or the thousands of union activists who occupied the state house in Madison in an attempt to block the bill from reaching the floor? Or the failed recall election against Walker that followed?

The unions threw everything they could to stop Act 10. They failed.

Wisconsin voters may not have understood at first why it was important to put a check on the state’s public employee unions. But their antics surrounding Act 10 made the reason plain.

Public employee unions are different than private sector unions in a key respect: Whereas in the private sector, management consists of a company’s owners and shareholders, in the public sector, “management” is the people. Elected representatives are supposed to act in the public’s interest, not in the public employees’ interest. Giving a union the power to elect their own bosses undermines representative government and the public good.

“Collective bargaining in the public sector is ‘political’ in any meaningful sense of the word,” Justice Lewis Powell wrote in his concurring opinion in Abood v. Detroit Board of Education, the 1977 opinion that Friedrichs and her fellow plaintiffs were seeking to undo. “This is most obvious when public-sector bargaining extends . . . to such matters of public policy as the educational philosophy that will inform the high school curriculum. But it is also true when public-sector bargaining focuses on such ‘bread and butter’ issues as wages, hours, vacations, and pensions.”

Wisconsin’s Act 10 said public employees would no longer have collective bargaining rights, which give them more power than the people they are supposed to serve.

Fact is, Wisconsin took a difficult path. Ohio Governor John Kasich tried to emulate Wisconsin’s law and was rebuffed by the courts. The democratic process is much more difficult to navigate when so many interests and factions are aligned against reform. But it’s far better than the alternative of submitting to the will of nine lawyers on the Supreme Court, as Justice Scalia often said.

Question of the Week   
Which one of the following was the first 20th century presidential candidate to call for a Presidential Debate?
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Quote of the Day   
 
"In nominating Barrett to the Supreme Court, [President Trump] kept his promise by choosing an undaunted originalist -- someone who interprets the Constitution based on the understanding held by its ratifiers.Trump's most profound effect on the Constitution will come when she and the other Trump Justices apply that originalism to the questions of liberty and equality."Read entire article here.…[more]
 
 
—John C. Yoo, Heller Professor Law at U.C. Berkeley School of Law
— John C. Yoo, Heller Professor Law at U.C. Berkeley School of Law
 
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