Epstein is probably wrong about the Employee Free Choice Act

Richard Epstein, perhaps the most important legal scholar of our time and certainly the most exciting, has come out strongly against the so-called Employee Free Choice Act, which would establish card-check as a procedure by which labor unions could be recognized.

Epstein studies the law, and I am a physicist, so ordinarily when I disagree with him on law it is because he is right and I am wrong. (Likewise were he to disagree on natural science, it's probably because he is wrong and I am right. To his credit, and unlike many in his region of the political spectrum, he's quiet on the matter.) But this time around, I'll stick my neck out and say that he's probably wrong about the First Amendment implications of the EFCA, although he's right about two important categorical questions: is it harmful, and is it unConstitutional?.

In a recent Wall Street Journal guest opinion, Epstein argues that because employers can currently speak out against unionization, the "clandestine" nature of card-check organizing drives removes their guarantee of free speech. That is ostensibly wrong: one doesn't have a First Amendment right to be heard.

This smells much more like a Due Process matter; employers can find themselves without common law right to contract in the blink of an eye if union salts wage a successful card-check campaign. "Due process" is replaced by no process at all save "we decided and you shall comply."

I find myself wondering if this line of argument would carry any weight in court; I don't recall any cases against the NLRA or agency fees on behalf of either employers or workers who'd rather contract independently in which the Fifth Amendment argument was made. If any readers can point me in the right direction, please do!

Film is dead? Long live Autochrome!

Before there was Technicolor or Kodachrome, there was Autochrome, an additive, nonlayered process involving dyed starch grains and tar on glass plates and later on film. If you've seen color photos of World War I, they were invariably taken using this process.

Neil Burger chose to emulate the unsaturated, fuzzy, somewhat dreamy look of Autochrome in 2006's The Illusionist, a connection lost on most of the audience including myself at the time. French artist Frédéric Mocellin has gone one better and, using factory notes, duplicated the long-lost Autochrome process, albeit on polyester sheets; the results are posted on his website.

Film is dead, they say, surpassed except in large format by high-end digital. I shoot film--I shoot film exclusively--and hear more and more remarks about being "retro", even more when I mention that I prefer Kodachrome 64 to some technically superior E-films in many situations. The reason is simpler, however: I like the look of film--the analog shoulder, the color balance, the grain. I even prefer what happens when film goes wrong to what happens when a CCD is misexposed. And digital is what I deal with at work; film is for fun!

Why would Mocellin revive Autochrome in the age of medium format Ektar and the 20 megapixel CCD? For the same reason artists didn't abandon paint when the Lumière brothers invented Autochrome. It's yet another medium or method for the artist to express his idea. I'm not very worried about being able to purchase film a few years from now. When paints can no longer be found, then perhaps I'll worry. But if all else fails, I can start dyeing potato starch.

The Noncyclical Asset

Spending and thrift may come in cycles, but people will turn to product reviews either way and perhaps more when they're pinching pennies; are Epinions reviews a noncyclical asset?

Epstein is at least as impressive in person.

The Goldwater Institute hosted an all too short lecture by Richard Epstein yesterday, for which I made the nearly two hour drive from Tucson.

It was well worth my while; Epstein is at least as impressive in person as in writing, lecturing off-the-cuff with dexterity and humor. The day's stated topic was "The Coming Constitutional Crisis" but the real topic was the administrative state, the substitution of experts and bureaucracy for functions better kept to the judicial and legislative branches. I took notes so as to write a full summary on Associated Content, but they wandered off while I was asking a question in person afterwards. At least one thesis was that the problem is not a lack of judicial restraint nor a complete abandonment of duty but rather that the courts tend to show restraint when they should intervene and vice versa. The opening thought, that most modern Constitutional lawyers concern themselves with questions of institutional competence, kept creeping in as, of course, did Epstein's revolutionary ideas concerning takings.

Much fun for the audience, and I got more than I expected--and by that I don't mean an autograph in my copy of Skepticism and Freedom, although that was nice, too--in answer to a question afterwards about Cass Sunstein's "libertarian paternalism". I asked whether it was a way to "Brer Rabbit" our way away from the administrative state; Epstein replied by illustrating where the idea works (e.g. pension contributions) and doesn't work (e.g. at-will vs with cause termination) and remarking on "Which Sunstein" he'd like to see in the Obama administration.

Capone and Daschle

When they finally got Capone, it had to do with tax evasion. While I don't think that disqualifies someone from serving in Cabinet, I'm happy to see Daschle go. A "Federal Health Board" isn't a fix, it's hoke.

Two worthwhile new climate websites.

The Institute for Environment and Society and the Climate Assessment for the Southwest, both projects of the University of Arizona, have established a website, the Southwest Climate Change Network to better educate the public concerning the effects of climate change, largely tied to global warming, on the Southwestern U.S. and Northern Mexico. It's approachable but with very close connection to rigorous science, something with which we can hit think-tank pseudoscholars over the head when they claim, again, that Global Warming is Totally Made Up, and It's Good for Us, And It's the Sun, Stupid.

But if they remain so obstinate as to not read anything past the third-grade "USA Today" level, send them over to This is Reality, a website devoted to combating the myth of clean coal. No rigor here, at least not on the page, just quotations from publications and a sign-up for mythbusting alerts to be sent when yet another fossil fuel industry whitepaper has the noise machine a-going.