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By César F. Rosado Marzán*
And did the Countenance Divine,
Shine forth upon our clouded hills?
And was Jerusalem builded here,
Among these dark Satanic Mills?
-- William Blake
When I was a child I was horrified by the anti-Christ movies, where victims of Satan’s son died the most terrible deaths. Some were buried alive. Others burned. It seems that garment workers are tied to a similar destiny of demonic deaths. Yesterday’s [April 24th] lamentable incident in Bangladesh—where an 8-story factory building collapsed, killing more than 200 workers—comes on the heels of a garment factory fire in November, where hundreds perished in the flames and the black smoke. That fire, in turn, is reminiscent of our own New York Triangle Shirtwaist Factory fire of 1911, where scores of immigrant girls died in one of the worst industrial accidents of the United States. Similar darkness had already been described by William Blake in his 19th Century depiction of the English “Satanic Mills” that spurred the industrial revolution.
What should make all of us particularly angry about the death toll in Bangladesh—600 in garment factories since 2006—is that these workers produced garments for international brands, including for Wal-Mart.
In the past decade or so there has been a movement supported by some academics to create and enforce standards through “self-regulation.” Following this line of thought, Wal-Mart created a “Code of Conduct” for foreign suppliers to self-monitor factory conditions. However, Wal-Mart was not interested in taking legal responsibility for its own Code. In 2005, a group of plaintiffs, including Bangladeshi workers making goods for Wal-Mart suppliers, sued Wal-Mart in the USA for failing to enforce its Code of Conduct. The workers argued that they suffered wage theft, overwork, and substandard working conditions as a result of Wal-Mart’s breach of its Code. Unfortunately for the plaintiffs, in a 2009 case decided by the 9th Circuit, Doe v. Wal-Mart, the court affirmed a judgment dismissing the plaintiff’s suit on the grounds that the plaintiffs had no contractual relationship with Wal-Mart.
The de facto and de jure failures of “self-regulation” are clear.
Researchers critical of corporate self-regulation have provided evidence showing that the traditional columns of labor law enforcement are still relevant in today’s global economy: labor unions and public regulation. In her book on international boycotts, Beyond the Boycott, Gay W. Seidman showed that only boycotts backed by some kind of state action—including that provided by international organizations such as the International Labor Organization—are the ones that have proven effective. Moreover, in my own research in Chile I observed how state action decoupled from robust labor unions is ineffective. In the 2010 Chilean mine accident that buried 33 miners under the rubble, the Chilean labor inspectorate had inspected the mine prior to the accident and had found dangerous mine conditions. A labor inspector fined the mine, but the mine continued to operate. Workers could have walked out of the mine in protest of unsafe working conditions, but Chilean labor law does not protect workers who strike for health and safety reasons. Workers had to depend solely on the inspectorate. So the workers remained in the mine until they were trapped by the rubble. Similarly, the Bangladeshi workers in yesterday’s accident had informed management of cracks in the building’s structure before the collapse, but they were ordered back to work. A strong union would have made the difference. It could have led a walkout until management found an alternative place to work. But especially after the torture and murder of a prominent Bangladeshi labor activist last year, labor rights in Bangladesh seem nonexistent.
We have a choice in the USA. We can change our trade policies. We can demand that in return for commercial relationships, Bangladesh and other trade partners permit that our labor inspectors visit their factories. We can demand that international labor activists can visit factories with national labor officers to inspect workplace conditions abroad. We can demand amending the Fair Labor Standards Act so that our Department of Labor can embargo goods reaching U.S. soil when those goods are made in violation of work laws and international standards anywhere in the world. Leveraging the purchasing power of the American economy will buttress the power and influence labor authorities at home and abroad. But while we turn a blind eye and let the lawbreakers police themselves, our clothes will continue to reek of sulfur and blood.
Professor Mark Rosen has posted a new article to SSRN titled Religious Institutions, Liberal States, and the Political Architecture of Overlapping Spheres (U. Ill. L. Rev., forthcoming). Read the abstract below:
Alongside the contemporary consensus favoring strong protections for individual religious liberty, controversial new claims on behalf of religiously affiliated institutions have been asserted with increasing frequency. They raise difficult questions. For example, are churches entitled to a “ministerial exception” exempting them from federal anti-discrimination laws when hiring and firing ministers? Must Catholic hospitals be exempted from the Affordable Care Act’s “contraception mandate,” which requires that employers provide their employees health insurance that includes contraceptive devices, because use of contraceptives is contrary to Catholic tenets?
To date, scholars have staked out two diametrically opposed approaches. One group argues that churches have inherent autonomy, and a corresponding jurisdictional independence of the state, vis-à-vis matters within the church’s domain. A second argues that churches are voluntary associations that accordingly enjoy no protections beyond their members’ constitutional and statutory rights. The first group favors the ministerial exception and exemptions from the contraception mandate, whereas the second group opposes them.
This Article critiques both approaches, and provides an alternative framework derived from John Rawls’s monumental works on political theory. What this Article calls the “Religious Institution Principle” provides a basis for determining what qualifies as a religious institution, as it explains why religious institutions are not reducible to their members, and why they are meaningfully different from most, possibly all, other associations. But religious institutions do not have any inherent autonomy. Not all religions are entitled to the Religious Institution Principle’s protections, and the principle does not provide anything approaching full immunity from state regulation for the religions falling within its coverage.
In essence, whereas the first scholarly approach treats state and church as separate juridical spheres, and the second approach eliminates the distinct sphere of religion by folding churches into their individual members, this Article conceptualizes government and religious institutions as overlapping spheres.
The Religious Institution Principle’s derivation reveals why it is fair, and why it plausibly can be thought to be acceptable to both religious and non-religious citizens. The principle generates a robust normative framework for evaluating religious institutions’ claims, which the Article applies to a wide array of difficult questions, including the polygamy decision in Reynolds v. United States, sexual abuse lawsuits against clergy, the ministerial exception, the contraception mandate, and the church autonomy cases.
Download the article from SSRN here.
Professor Katharine Baker has uploaded to SSRN an amicus brief--filed on behalf of Family Law Professors--on the merits of the Supreme Court case United States v. Windsor. Read the abstract below:
This amicus brief – filed on behalf of Family Law Professors - clarifies the relationship between Congress and the states with regard to family status, particularly marital status. The brief argues that Section 3 of the Defense of Marriage Act disestablishes marital status, for all federal purposes, for one subset of married couples, in contravention of an exceedingly strong norm of federal deference to state family status determinations. Unlike any other federal statute, DOMA selectively withdraws state-conferred marital status. Regardless of whether the federal government has the power to abrogate marital status for one subset of married couples for all federal purposes, it had never, before DOMA, done so.
Part I of the brief explains why DOMA cannot be justified as an attempt to ensure federal uniformity with regard to the treatment of marriage because federal law is still silent on critical eligibility criteria for marriage. Thus, similarly situated couples in different states have always been and still are treated differently at the federal level. Moreover, Congress’ alleged need to maintain uniformity does not comport with its long history of deference to state divorce determinations (which are marital status determinations), when there was tremendous diversity between the states with regard to eligibility for divorce. Section 3’s marital restriction is also inconsistent with Congress’ ongoing deference to state determinations of other family statuses, particularly parental status. Modern technological and scientific achievements have made diversity in the state laws of parenthood far more complicated and extensive than current state disagreements over marriage for same sex couples. Yet there is no federal law of parenthood.
Part II of the brief explains how all existing federal statues pertaining to family status can be divided into three categories and all maintain the federal government’s traditional deference to state-determined family status. First, and most common, are federal statutes that implicitly invoke the state law of family status. Second, are federal statutes and regulations that explicitly invoke the state law of family status. Third, there are federal statutes and regulations that expand or restrict the category of who will be eligible for federal benefits under particular statutes based on policy reasons, particularly fraud-prevention and public fisc protection, pertinent to those specific statutes. None of those statutory definitions of marriage does what DOMA does, which is selectively withdraw marital status for one subset of marriages for all federal purposes.
Download the brief from SSRN here.
On April 12, Chicago-Kent's Institute on the Supreme Court of the United States (ISCOTUS) and the Constitutional Rights Foundation Chicago (CRFC) held a day-long conference for high school students called "A Day at the Supreme Court of the United States: A Special Focus on the Gay Marriage Cases." C-K professors Carolyn Shapiro, Christopher Schmidt, and Jerry Goldman participated in the day's many workshops.
Read the full story here.
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