2011 Issue

Just the Facts: The Perils of Expert Testimony and Findings of Fact in Gay Rights Litigation


By Libby Adler

Before Perry v. Schwarzenegger, all judicial victories for same-sex marriage in the United States during the first decade of the new millennium were decided on motions for summary judgment. None required the testimony of witnesses; none produced a trial transcript; none resulted in findings of fact. When Chief Judge Vaughn Walker of the Northern District of California struck down Proposition 8, the voter approved referendum amending the California constitution to define marriage as the union of a man and a woman, however, he presided over an actual trial. He made over fifty pages of factual findings, widely speculated to have been a strategic move to render his decision difficult to reverse on appeal.

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The First of Thousands? The Long View of Local 1330’s Challenge to Management Rights and Plant Closings


By Harris Freeman

Local 1330, United Steel Workers v. U.S. Steel Corp.1 was an important chapter in the struggle between labor and capital in the Rust Belt. The plaintiffs, two union locals in Youngstown, Ohio representing 3500 workers, pressed novel property and contract claims to prevent U.S. Steel from exercising what the manufacturer viewed as its unbridled managerial right to close aging steel mills in Youngstown. A federal court order preventing the largest American steel company from closing its mills would have signaled a challenge to capital’s ability to unilaterally chart the future course for basic industry in America’s heartland.

With hindsight, it is now clear that by the time the Local 1330 litigation was underway, basic industry in the U.S. was already in a historic decline. The case arose as renewed global competition and a profit squeeze were shifting the corporate view of the labor-management accord and New Deal social policies that framed the post-World War Two era. Oil embargos, years of double-digit inflation and rising unemployment had ushered in the worst recession the U.S. had experienced since 1929. The near collapse of Chrysler in 1979 and President Reagan’s no-holds-barred destruction of the Professional Air Traffic Controllers Organization in 1981 were signs of what corporate America had in store for the remainder of the 20th century: aggressive anti-union strategies, plant closings and outsourcing, coupled with the imposition of wage structures that permanently embedded widespread inequalities throughout the labor market.

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Remembering Local 1330


By Staughton Lynd

There’s a well nigh irrepressible desire to fill my portion of the hour with war stories. But I’m going to limit myself to two.

In January 1980, we filed our lawsuit and Judge Lambros set a mid-March trial date. US Steel in its infinite arrogance announced that it was going to close its Youngstown facilities about a week before the case was to go to trial. And so the forces of good delegated former Attorney General Ramsey Clark and me to go to Cleveland and get an injunction. Ramsey, as you know, is a very tall man. Judge Lambros is a short man. And I learned that morning how you address former attorney generals, because when Ramsey and I walked into the courthouse, we met the Judge. The Judge looked up at Ramsey and said, “Good morning, General.” Seemed like a good beginning, somehow.

Our advocacy strategy was that Ramsey would provide a kind of equitable framework and I would talk about what was happening in Youngstown. I will never forget Ramsey’s first words, which were, more or less, “Judge, we have to start with the railroad strike of 1877.”

But we got the injunction. Not only did we get the injunction, but Judge Lambros also decided to try the case in Youngstown. That meant that the trial would be a kind of morality play for the community. And there was also a civil procedure issue. Cleveland would have been too far from Pittsburgh to subpoena the chairman of the board and the chief executive officer of U.S. Steel, but Youngstown was close enough. And that’s why we got them all down to our town, flying in separate helicopters like the president and vice president of the United States, in case one went down.

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Remembering Pittsburgh


By Mike Stout

To understand my role in this struggle it’s important to understand a couple of other things.

First, in the mid to late sixties I ran with Jerry Rubin and Abby Hoffman. I was one of the Yippies. I was at Chicago in ’68. I was in New Haven in ’69. I was at the moratoriums in D.C I came out of that kind of culture and that kind of activist background, so going into the steel mills from that kind of background was an incredible transition for me.

When I got a job at Homestead in 1977, the shutdown process hadn’t started yet. It didn’t actually begin until late ’77 with the Campbell Works in Youngstown, the Lackawanna Works and a number of other facilities. When I was hired at Homestead I had been a musician and worked odd jobs most of my life. I had been a professional musician. And when I got a job in a steel mill it wasn’t really to do political activism. It was to get a stable job with a nice income.

This Marine-looking guy gave us orientation and said, “I want people in here—I don’t want fly-by-night part-timers. I want people who are going to be here for thirty years.” And I went, “Yeah.”
It wasn’t more than a year and a half later that the shutdown process started.

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Teaching Local 1330—Reflections on Critical Legal Pedagogy


By Karl Klare

I have admired Staughton and Alice Lynd’s commitment to social justice and their faith in participatory, grass-roots mobilization since I attended the “Assembly of Unrepresented People” in Washington, DC, in 1965, an early protest against the Vietnam War. It is no surprise that, as Staughton recounts the story, the idea of a community right to industrial property emerged organically from the struggles and collective resistance of the steelworkers and their families, sympathetic clergy, and other community leaders. I am sure he would insist that how he drafted the pleadings is the least important aspect of Local 1330.

Nevertheless, this article focuses on what the case can teach us about legal work and legal education. My job for the past thirty-four years has been training future lawyers. While I try to serve all my students faithfully, the emotional payoff comes from working with students who want to become social justice lawyers. I have devoted most of my career to law teaching because, rightly or wrongly, I believe that training and empowering students who want to become social justice lawyers makes a contribution to the struggle for a better world.

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The Reliance Interest in Property Revisited


By Joseph William Singer

Thirty years ago, the U.S. Steel Corporation decided to close a plant in Youngstown, Ohio. The factory was the mainstay of the town and its closing was likely to have a devastating impact on the local economy as well as the lives of all the workers who would be laid off. The union did all it could to keep the factory open, but to no avail. In a final burst of creativity, the union came up with the idea of buying the factory from the company. If they won’t run it, maybe we can. But the company adamantly refused to consider selling to the union. It took the inconsistent positions that the factory was unprofitable and that if the union did operate it that the union would be competing with the old employer and illegitimately harming U.S. Steel’s business. In the face of this intransigence, the union went to court. Among other things, it asked the court to order the company to sell the factory to the union upon payment of fair market value. In effect, the union claimed that it, or the town, had a right of first refusal in the property.

Trial Judge Lambros was sympathetic. “[I]t seems to me,” he said, “that a property right has arisen from this lengthy, long-established relationship between United States Steel, the steel industry as an institution, the community in Youngstown, the people in Mahoning County and the Mahoning Valley in having given and devoted their lives to this industry.”1 Yet when push came to shove, Judge Lambros felt that he could find no precedent in Ohio law for such a property right and that finding was upheld by the Sixth Circuit.2 Because precedent is far from unchanging and because I shared Judge Lambros’ instinct that a long relationship may create property rights when the owner shares access to the property with another, I wrote an article entitled The Reliance Interest in Property, in which I argued that Judge Lambros could have interpreted the common law to find such a property right.3 In addition, I suggested a number of remedies, two of which I want to revisit now. First, I argued that the court could have and should have recognized a right of first refusal in either the union or the town, enforceable by injunctive relief ordering the company to transfer title for fair market value. Second, I argued that the town could exercise its power of eminent domain to take the property from U.S. Steel and transfer it to the union or to another employer who would agree to operate the factory.

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Dead Man’s Town: Violence and Legal Interpretation in Local 1330


By Brishen Rogers

On May 26, 1937, having obtained recognition from U.S. Steel after many years of internecine battle, the Steel Workers Organizing Committee struck Youngstown Sheet & Tube and other smaller steel companies, collectively known as “Little Steel.” The city was no stranger to labor strife – earlier organizing efforts had led to riots in 1916 and a tense but ultimately unsuccessful strike in 1919 – and the mill owners were prepared. They brought in replacement workers to keep the mills running and stationed “armed men, apparently well equipped with tear gas, rifles and even a few machine guns,” on downtown buildings and elsewhere.1 When striking workers set up pickets to stop anyone from entering or leaving the mills, the owners organized an airlift to drop food and other supplies behind the gates.

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