Professors Levinson, Roberts, and Sweeny win research grants

I am pleased to announce that Professors Ariana Levinson, Tracey Roberts, and JoAnne Sweeny have won faculty research grants for summer 2012. Professor Levinson will write an article called "Movements of Consensus and Conflict: Founding Worker Cooperatives." Professor Roberts's project is titled, "Tracing the Incidence of a Financial Transactions Tax." Professor Sweeny will write "Adultery and Fornication Criminal Laws: What Happens to Obsolete Statutes." I congratulate all three of my colleagues and wish them the very best in their research.

— Jim Chen

Ariana R. Levinson, Movements of Consensus and Conflict: Founding Worker Cooperatives

Ariana Levinson

Unions and business lawyers are taking a renewed look at worker cooperatives, in light of the economic downturn. In the legal literature, some scholars are also reconsidering institutional labor economics. This project aims to use an institutional sociology theory, social movement theory, to provide insights for workers, unions, and lawmakers on the conditions under which worker cooperatives are successfully established and sustained. The proposal first describes worker cooperatives and social movement theory. It then describes the goals of the project and the predicted theses. Next, the proposal explores the current status of the research. It concludes by describing the broader significance of the work.

Cooperatives and social movement theory

Worker cooperatives are firms that workers themselves own and democratically manage. Workers determine what is produced, how profits are allocated, who manages the firm, and whether or not to make investments. Ideally, worker cooperatives provide job security, ensure good working conditions and pay, and enhance the community. While worker cooperatives are not commonplace in the United States, historically many successfully run worker cooperatives have survived economically and provided workers control over the business.

Social movement theory is a branch of sociology that seeks to explain when and why people join a movement, protest, or other form of collective action and the form their action takes. In recent decades, a number of authors have developed varying social movement theories. Some focus on structural issues, while others focus on social psychology. Some focus on movements born of consensus and others on those arising from conflict. Some look to explain the impetus of a movement while others seek to explain why organizations which come out of a social movement take the forms they do.

Project goals and theses

This project will apply social movement theories to various cooperatives, potentially including Denver Yellow Cab, the Plywood cooperatives, Rath, Hoedads, Menorah Kosher Poultry, and, provided adequate information is available, the Steelworkers’ collaboration with Mondragon and the Evergreen Cooperative Laundry. The goal will be threefold. First, the manuscript will assess the viability of the various social movement theories and suggest further areas of inquiry in developing them. Second, the manuscript will determine whether social movement theory can offer guidance to unions as they seek to give workers a voice at work by establishing cooperatives. Finally, the manuscript will analyze how the law could be reformed to aid in creating movements that would establish cooperatives.

The first two goals may provide the foundation of a first article, while the final goal provides the foundation for a second. The predicted thesis of the first article is that cooperatives are likely to arise out of the cooptation of structures, primarily unions, intended for other purposes. Because cooptation is most likely to succeed where union leaders favor the movement for a cooperative, education of union leaders about cooperatives is imperative. Additionally, because membership loyalty is important to successful cooptation, union efforts to create solidarity among members are likely to aid the success of movements to establish cooperatives. Because unionization rates are extremely low today, however, other institutions, such as economic development agencies, may provide alternate structures for coopting in movements to establish cooperatives.

The predicted thesis of the second article is that legal reform could have a significant impact on encouraging the development of cooperatives. Laws or regulations that would encourage unionization, such as the proposed National Labor Relations Board election regulations or the Employee Free Choice Act, or, perhaps more significantly, the elimination of right-to-work laws or reinstitution of the closed shop, would increase the number of structures available for cooptation. Funding for economic development agencies might also create such structures. Finally, states like Oregon, with specific laws governing the incorporation of cooperatives, are more likely than other states to have worker cooperatives.

Broader significance

My general intent is to write articles that will be of use not only to legal scholars, but also to lawyers, lawmakers, and others involved in labor relations or dispute resolution. This project is no different. For workers, unions, and managers trying to find a way forward in difficult economic times, the project should offer thought-provoking and useful information about an alternative to standard economic business models. At the broadest level, the project should benefit society by shedding light on the conditions under which cooperatives can provide limited solutions to economic difficulties. For lawmakers, the project will suggest legal reforms necessary to render cooperatives a viable option. Finally, the bridges the work might create between legal scholars and those in other fields will be invaluable because connections between disciplines often serve as the foundation for innovative work on the ground.

Tracey M. Roberts, Tracing the Incidence of a Financial Transactions Tax

Tracey Roberts

In the wake of the 2008 financial crisis, the International Monetary Fund began to discuss the imposition of a financial transaction tax to address the impacts of financial crises and market bubbles by funding an insurance pool to mitigate the negative distributional impacts of these events. Financial transaction taxes were first proposed by James Tobin in the early 1970s to be applied to currency trades. Tobin’s intention was to impose a Pigovian tax to deter speculation and reduce volatility in the markets following the decoupling of currencies from the gold standard.

Occupy Wall Street has more recently popularized the financial transactions tax as a “Robin Hood Tax.” However, this may be a misnomer, since the distributional impacts of the tax may not fall on the wealthy. While proponents who support the financial transactions tax may assume that the tax will be borne by the rich and protect the poor, the incidence of a tax may not fall on the parties on whom the tax has been imposed by statute. For example, sales taxes are generally passed forward to consumers and are not borne by the retailers that are by statute required to remit the sales taxes to the government. The corporate tax is not borne by corporations, but either passed forward to consumers, or backward to shareholders or to workers or to owners of the factors of production. Similarly, Social Security taxes may actually be borne solely by employees rather than shared with employers. While employers have the statutory responsibility to pay half of their employees' Social Security taxes, a number of economists have suggested that the employees actually pay the entire tax. They argue that the burden of the tax has been capitalized into employee salaries and wages and the employer uses the wage savings to pay their statutorily imposed portion of Social Security.

For this reason, I would like to examine the incidence of any proposed financial transactions tax, based on economic models and empirical data for these types of taxes. If in fact, a financial transactions tax is likely to impact, not the wealthy banking institutions that are engaging in risky, speculative trades, but small investors saving for retirement, it will not have a deterrent effect on traders. In addition, by providing insurance to cover the distributional impacts on the public, tax may ultimately subsidize additional risky behavior.

JoAnne Sweeny, Adultery and Fornication Criminal Laws: What Happens to Obsolete Statutes?

JoAnne Sweeny

I will conduct an in-depth look at the historical progression of adultery and fornication criminal statutes. Several states still have adultery or fornication statutes on the books but rarely (if ever) enforce them. These statutes have drastically changed in importance over time; at first continually enforced, they later fell out of use and now they are in danger of being held unconstitutional. An examination of prosecutions of these statutes over time provides a concrete example of how changing social policies can affect the constitutional viability of these statutes and how judges view the laws they interpret.

This article will discuss the history of adultery and fornication statutes as well as their current uncertain standing. More specifically, this article will give an in-depth look at the history of adultery fornication laws to see how their prosecution has changed over time and what that might mean for the precedential value of those statutes. More specifically, adultery and fornication laws have changed in how often they are prosecuted, as well as the tone of judicial opinions addressing these prosecutions. The statute’s original purpose, as shown by judges’ changing treatment, may no longer comport with modern values and the statute’s intent will therefore have to be finessed by those seeking its enforcement. These statutes therefore show that even if the language of a statute does not change, its effects, policy justifications and constitutional viability can change drastically over time, which can have a strong impact on legal practitioners, academics and law students.