Wednesday, July 09, 2008

No, actually, secondary boycott is a pretty good name for it

Paul Soglin thinks that he has embarrassed UW political science prof Howard Schweber by demonstrating that the term "secondary boycott" is "an important legal term that has a very specific meaning." Professor Schweber, who is also a lawyer and does public law at Madison, should never ever ever have used it to refer to Epic's stated intent to refuse to do business with vendors that support WMC.

I think Professor Schweber can hold his head up. The term secondary boycott is used in labor law to refer to a union that attempts to persuade others not to do business with an employer that it is, for example, striking. It is illegal (although the UFW was able to urge the boycott grapes and lettuce at grocery stores because agricultural workers aren't covered by the National Labor Relations Act.)

But that's not the only sense in which the term is used, either in the law or popular discourse. For example, this statute refers to the Arab secondary boycott of Israel, generally understood to be the refusal to do deal with companies that do business with Israel.

The point is that someone (say Epic) involved in a dispute with someone else (call them WMC) refuses - or calls on others to refuse - to patronize a third party (how about J.P.Cullen?) who does business with or has some other relationship with the target.

Professor Schweber did not claim that Epic was engaged in a secondary boycott that is prohibited by law. Although Soglin links to me and suggests I picked up the term from Schweber (I didn't), I took care to point out that Epic is, as far as I know, within its rights.

But it seems perfectly reasonable to call what Epic proposes to do a secondary boycott in the common - as opposed to technical - parlance. The direction of the boycott against a party once removed from the dispute is what distinguishes it from the Boston Tea Party (a bit of a complicated example - was the dispute with the East India Company or the Parliament that granted it special privilege?) or the Montgomery bus boycott.

I also tried to explain why I think the secondary nature of Epic's proposed blacklist is important. Refusing to do business with those who support others who do political things that we don't like threatens to politicize lots of our daily relationships. That is why I said that it stresses the social fabric. It escalates our political divisions. If widely adopted, it would imply that, before I do business with you, I need to know what you do in a variety of areas of your life that have nothing to do with the proposed transaction between us. Then I can decide if you are worthy of my patronage. This is why I said that, while people can do this type of thing, they mostly shouldn't.

Now, if Mayor Soglin really wanted to debate this as opposed to reiterating talking points (he does stay on message),he might argue that the boycott is not secondary because Epic had a dispute directly with Cullen, i.e, it did not like the fact that it supported WMC. But that strips the term of meaning. You can always recharacterize the primary dispute as being about supporting or doing business with the target entity. That leaves us right back in a world where the commercial is the political. J.P. Cullen does not become indistinguishable from WMC simply because it supports it or because a Cullen exec sits on the WMC board.

There is, in any event, no evidence that Cullen contributed to the ads that are supposed to be the basis for Epic's dissatisfaction with WMC.

Update:Professor Schweber does a pretty good job of elaborating on this here.


Anonymous said...

The membership of WMC is once removed from WMC?

Rick Esenberg said...

Read the last two paragraphs. The short answer is "yes" in the same way that, if you belong to the Democratic Party, you are once removed from it. If I decide that the Democratic Party is a bad organization and I won't support it, that's one thing. If I then decide that I will not hire or do business with Democrats, that's another. Epic is boycotting people because they belong to or support an organization that it's owner does not like.

Anonymous said...

That's a smidgen better than the Israeli commerce analogy or Schweber's "companies that supplied fuel to the [boycotted] city."

I probably would have gone with Good Hope Christian Academy boycotting WEAC members.

Terrence Berres said...

"But that's not the only sense in which the term is used, either in the law or popular discourse."

More than one meaning? It's like the term 'government agency'!

Brett said...

Schweber writes: "In a modern capitalist economy, business corporations have tremendous coercive power. A sufficiently large corporation X can exercise leverage over its employees, the officials of a city that depends on that corporation for its tax base, and small businesses that depend on X's business."

Insert "WMC" for "large corporation" and that's kind of Epic's point.

illusory tenant said...

More than one meaning? It's like the term 'government agency'!

Heh. That Berres is a sly devil.

Terrence Berres said...

"sly devil"

More demonizing.