Innovation for Who? Reclaiming Public Purpose in the Urban Transportation Pilot

Arielle Fleisher and Chris Chou

Hidden beneath the buzz about how technology is transforming urban transit is a quiet revolution in the way that cities approach the management of their streets. In the face of rapid change, cities and transit agencies are increasingly relying on pilot programs to manage the introduction of new modes of transportation and new uses of the right of way. Pilot approaches have spread through all regions of the country and are utilized by cities of all sizes and for numerous applications including dockless bike share, autonomous buses, micro-transit, delivery robots, and smart streetlights.

It’s important to appreciate how the pilot approach departs from how cities typically regulate and manage urban transportation problems. The public sector often makes slow decisions and avoids risks. But that stability can be a disadvantage if it ossifies and can’t accommodate changes to the system. Without compromising cities’ ability to use public funding, exercise regulatory authority, and pursue the public’s interest, pilots provide cities and transit agencies with flexibility. They give cities a safe space to try new approaches while managing the potential chaos of new technologies.

Yet pilots today are too often centered around technology alone. Continue reading

Riding the Bus to a Green New Deal

Riding the Bus to a Green New Deal

Richard A. Marcantonio –

In a recent video, “A Message From the Future,” Rep. Alexandria Ocasio-Cortez’s voiceover imagines a time when climate collapse has been averted. Now a seasoned member of Congress, she rides the bullet train to the Capitol. It’s a whimsical opening to a compelling narration. But it raises two important questions: first, will the Green New Deal (GND) come all at once? And second, will it come riding high-speed rail or the lowly city bus?

The two questions, it turns out, are connected.

Ocasio-Cortez’s Green New Deal resolution is structured around five goals: (A) carbon neutrality and a just transition, (B) creation of millions of good-paying jobs, (C) investment in sustainable infrastructure, (D) achievement of a healthy and sustainable environment, and (E) “stopping current, preventing future, and repairing historic oppression” of “frontline and vulnerable communities.” 

The first thing to say about the logic of these goals is that every dollar of massive new public investment spent under a GND policy framework, whether at the federal level or at smaller geographic scales, would deliver public infrastructure or services, while simultaneously creating good-paying jobs, cutting carbon pollution, and addressing historic oppression of “frontline and vulnerable communities.” (I’ve written separately about the significance of the resolution’s definition of “frontline and vulnerable communities,” and a framework for addressing their historic oppression in the context of a GND).

These principles should apply to local investment as much as to federal funding. Indeed, the GND resolution should be understood not only as a comprehensive federal program, but more immediately as a policy template that working people, through struggle, can strive to apply to any large source of funding. 

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Transportation Justice: from Civil Rights to the Right to the City

Kafui Attoh-

In the year 2000, the writer Joan Wypijewski visited Montgomery, Alabama, to observe the 45th anniversary of the Montgomery bus boycott. Her findings were notable: “Montgomery’s transit system isn’t segregated anymore. It barely exists.”

As Wypijewski told readers, the 1990s had not been kind to transit. After two decades of local Republican leadership, and following the elimination of federal transit operating assistance in 1996, Montgomery’s transit system had become a shadow of its former self. In 1997, the situation reached its nadir when the city decided to scrap its fixed route bus service altogether, replacing it with a cost-saving dial-a-ride service called DART. DART provided door-to-door service to local residents upon request, but required that these residents schedule their trips 24 hours in advance. As Wypijewski reported, the system was hardly popular. Not only were there dropped appointments, longer commutes, and overworked drivers, but it marked the end of what had been a “‘family of riders,’ the easy culture of transfers and [a shared] culture of urban mobility”. When Wypijewski published her exposé in 2000, Montgomery’s new Democratic leadership was already in the process of re-establishing a fixed route bus service. Even with change on the horizon, Wypijewski’s larger argument remained an important one. Here we might quote her directly:

“Today’s system is a spawn of the New South, which is not so much new or distinctly southern as it is an accommodation to the all-American way of racism—bigotry muffled for the sake of business, white privilege wrapped in the language of investment. As elsewhere across the country, whites in Montgomery abandoned the urban center and its services. With budgets shrinking, neglect of city schools, hospitals and transit could proceed as a ‘cost benefits decision.’”
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The Uber/Lyft “Workers’ Association” Debate: A Response to Dubal

N.B.: Benjamin Sachs penned this response to Part I of Veena Dubal’s post on comparing solidarity unionism with company unions earlier this week. In the spirit of debate, we’re cross-posting from On Labor. 

Benjamin Sachs –

Veena Dubal writes an important piece that raises concerns about Uber and Lyft’s suggestion that drivers in California form a “workers’ association.” Dubal worries that such an association would amount to a company union that would “necessarily impede” the development of fully independent, exclusive-representative unions at the gig firms. Given the essential role that independent unions play in our economy and our politics, Dubal is highly critical of the workers’ association idea.

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Gig Worker Organizing for Solidarity Unions

Veena Dubal – 

The “gig economy” is one place where organizing outside of traditional trade unions is undoubtedly happening in surprising and perhaps unexpected ways. For example, on May 8, 2019, a group of independent app-based drivers in Los Angeles called the LA Rideshare Drivers United organized and launched an unprecedented international picket and work stoppage against Uber and Lyft. They were joined by similar driver groups all over the United States (including in New York City) and as far off as Nigeria, Australia, and the United Kingdom.   This was an incredible feat given that, as my co-authors and I have argued, gig workers—particularly those who work for a platform-based company—face unique hurdles to organizing. Among other factors, these workers are unusually dispersed, atomized, and differentially dependent on gig work.

Having studied gig workers for over a decade, I was surprised by the magnitude of the May 8 strike. Two things stood out to me. First, I was struck by the large number of driver-led groups in the U.S. which participated in the coordinated work stoppages. Drivers’ groups from Boston, San Diego, Los Angeles, Chicago, New York City, and Washington, D.C. issued a joint statement calling their action a “strike” (not just a rally or protest) and announcing themselves “united as one joint council of grassroots driver labor organizations with the shared goal of winning job security, livable incomes, and respect for App drivers.” Not all drivers’ groups that participated in their regions signed onto this statement—presumably because of the legal risks of calling this action a “strike.”

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Solidarity Unionism v. Company Unionism in the Gig Economy

Veena Dubal – 

The CEOs of the two top-competing gig firms—Uber and Lyft—penned a June 12, 2019 OpEd in the San Francisco Chronicle in which they claim that after over six years of local, state, federal, and international law-breaking, ignoring the concerns of drivers, and viciously fighting any efforts to achieve living wage and benefits, they are ready to compromise…in California. They claim that in exchange for getting rid of a bill that just passed the state assembly—which would extend California labor protections to many “gig workers” by making it easier for them to claim employee status under state law—they will agree to establish a wage floor, a “workers’ association,” and potentially, a deactivation appeals process.

Why, after six years of legal and political intransigence, are these companies so ready to come up with a salve? And what should we make of their concessions?

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Is Labor’s Future in Labor’s Capital? A Debate, Part III

This is Part III of a conversation between David H. Webber and Michael McCarthy on the prospect of combating neoliberal corporate governance through the shareholder activities of workers’ pension funds. Workers’ retirement savings make up a substantial share of the capital invested in the public stock market and the private equity market. If shareholder primacy is the dominant paradigm of our financialized economy–-usually a problematic proposition in these pages–-then shouldn’t workers have a say in how these companies are run? Webber and McCarthy are both sympathetic to this idea, but disagree about how well such efforts have worked in the past and how likely they are to work in the future.

You can view the other parts of the debate here.

LPE: We now have several potential obstacles on the table. Let’s take a closer look at some of them. First, the legal obstacle—what does fiduciary law really require, and is this a problem for prioritizing something other than short term financial return in fund governance? Second, politics—what will it take for labor to demand a seat at the table, or a majority of the seats?

David H. Webber: Though I do not view current fiduciary law as an insurmountable barrier to the activism I describe, it could be better. ERISA comes from trust law, though the statute explicitly states one should be cautious in using trust law to interpret it. I have argued that, in many respects, the more flexible fiduciary duties found in trust law’s cousin, corporate law, may be a better fit for pension plans as they exist today than trust law itself. Historically, because shareholders were thought to be comparatively more empowered vis-à-vis corporate boards and managers than beneficiaries were vis-à-vis trustees, more flexible fiduciary duties evolved in the corporate sector.

But I think that in the case of many pension plans, these distinctions have broken down. First, public pension plans now make regular disclosures through Certified Annual Financial Reports, the pension law equivalent of the 10-K. Second, plan participants and beneficiaries get to vote for worker and retiree representatives on boards, and in their capacity as citizens, they also get to vote for the elected officials who serve as employer representatives on those boards. So there is a measure of accountability not found in traditional trusts. Third, on the corporate side, diversified shareholders have effectively lost their capacity to exit. Divesting is expensive, can often hurt you on the way out, and may undermine diversification. Many shareholders are locked in the same way pension beneficiaries are. It may be time for greater convergence between pension law and corporate law, one that takes account of the new institutional realities.

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Is Labor’s Future in Labor’s Capital? A Debate: Part II

This is Part II of a conversation between David H. Webber and Michael McCarthy on the prospect of combating neoliberal corporate governance through the shareholder activities of workers’ pension funds. Workers’ retirement savings make up a substantial share of the capital invested in the public stock market and the private equity market. If shareholder primacy is the dominant paradigm of our financialized economy–usually a problematic proposition in these pages–then shouldn’t workers have a say in how these companies are run?Webber and McCarthy are both sympathetic to this idea, but disagree about how well such efforts have worked in the past and how likely they are to work in the future.

You can view the other parts of the debate here.

David Webber: Though I think he somewhat overstates the case, I agree with Michael’s observation that these pensions have, at times, been used against labor. And not just historically. I discuss (and decry) contemporary examples of this phenomenon in my book, such as pension fund investment in privatization. And it is also true that both private and public sector pensions have been used in favor of labor, as my book demonstrates. Before digging into those issues, I want to clarify some important distinctions between the public and private fund context, respond to some of Michael’s claims about ERISA and fiduciary duty, and point to examples of why, regardless of what has occurred historically, things are changing and have the potential to change further, if acted upon.

First, Michael shifts the focus to private union pension plans. Fair enough. I discussed them above and I’ll return to them below. But the bulk of my discussion focused on public pension plans, and with good reason. In part that’s because they are far larger. The public pension funds of California alone significantly exceed the assets of all private union pension plans combined. But there’s another reason to focus on public pension plans: they are not governed by Taft-Hartley or by ERISA. They are governed by state pension codes. That matters for two issues: board control, and fiduciary duties.

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Is Labor’s Future in Labor’s Capital? A Debate

This is Part I of a conversation between David H. Webber and Michael McCarthy on the prospect of combating neoliberal corporate governance through the shareholder activities of workers’ pension funds. Workers’ retirement savings make up a substantial share of the capital invested in the public stock market and the private equity market. If shareholder primacy is the dominant paradigm of our financialized economy–usually a problematic proposition in these pages–then shouldn’t workers have a say in how these companies are run? Webber and McCarthy are both sympathetic to this idea, but disagree about how well such efforts have worked in the past and how likely they are to work in the future.

You can view the other parts of the debate here.

LPE: Let’s start with where we are now and how we got here. How did we get to a place where some workers get to decide how their retirement assets should be invested, while others don’t? What were the key fights between labor groups, employers, and financial industry players on this question, and what were the outcomes?

David Webber: Worker shareholder power can be found mostly in public sector pension plans, which are publicly-created retirement plans that invest the retirement savings of public-sector workers. These large state, city, and county employee retirement plans hold at least $4 trillion in assets, roughly 10% of the U.S. stock market, and at least a third of “alternative investment vehicles” like private equity. The most famous examples are the California Public Employees’ Retirement System ($350 billion in assets), the California State Teachers Retirement System ($223.8 billion), the New York City Pension Funds ($195 billion), and the New York Common Retirement Funds ($207.4. billion), among many others. Almost all public pension plans have worker representatives on the boards of trustees, the equivalent of worker representation on corporate boards. These workers are elected by other workers (or retirees) who participate in the funds. Sometimes those worker slots are controlled or heavily influenced by unions. Sometimes workers outright control the board; more often they constitute a minority of trustees.

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Killing Antitrust Softly (Through Procedure)

Sandeep Vaheesan – 

The Supreme Court has waged a multi-decade war on private rights of action. It has subverted the rights of consumers, workers, small businesses, and others to hold corporations accountable for wrongdoing through lawsuits. The Federal Arbitration Act (FAA) has been a preferred tool of the Court. Since the 1980s, it has reinvented this modest statute, converting the FAA into a quasi-constitutional sledgehammer for corporations to wield against private lawsuits, especially class actions. And the evisceration of private enforcement of law goes beyond arbitration. The Court has rewritten class certification, pleading, and summary judgment standards to help businesses ward off private lawsuits and accountability.

On top of these general procedural hurdles, the Supreme Court has imposed special burdens on parties seeking to vindicate their rights under the federal antitrust laws. Congress enacted an expansive private remedy originally in the Sherman Act and subsequently in the Clayton Act. Section 4 of the Clayton Act grants “any person” injured by an antitrust violation the right to recover treble damages and legal fees from the violator. Since the 1970s, however, the Supreme Court has effectively rewritten this text. While once recognizing that Section 4 “is comprehensive in its terms and coverage, protecting all who are made victims of the forbidden practices by whomever they may be perpetrated[,]” the Court has severely restricted who can enforce the antitrust laws. Two doctrines deserve special consideration. First, the Court held that, in general, only parties who purchased a good or service directly from the antitrust violator can obtain damages for overcharges. Second, it created the amorphous “antitrust injury” doctrine and granted the lower courts the power to dismiss disfavored substantive claims on supposedly procedural bases.

These procedural changes raise the age-old question: what good is substantive law if it cannot be enforced? The described procedural changes have not affected the substantive law (though the courts have done that too in certain areas) but it has prevented some of the most motivated parties from enforcing the law. Consumers and businesses injured by antitrust violations have long been the lead enforcers of the antitrust laws. Their role is only accentuated by the Department of Justice and Federal Trade Commission’s unwillingness to enforce multiple areas of antitrust law. This combination of judicial hostility to private cases and bureaucratic lethargy has turned much of the substantive law into a dead letter.

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