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Family Code section 852, subdivision (a), provides: “A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.”[1] The issues we address in the published portion of this opinion are: (1) whether a grant deed signed by a husband transferring his separate property interest in real property to himself and his wife as joint tenants satisfies the “express declaration” requirement of section 852, subdivision (a); and (2) whether an unsigned computer printout, entitled “DMV Vehicle Registration Information,” reflecting that an automobile, which was previously registered in the husband’s name alone, was reregistered in the names of the husband or the wife, satisfies the requirements for a valid transmutation under section 852, subdivision (a). We hold that the grant deed in this case satisfied the express declaration requirement of section 852, subdivision (a), since it contained on its face a clear and unambiguous expression of intent to transfer the real property interest. Because the subject real property was validly transmuted into property held in joint tenancy, it became the wife’s separate property upon the husband’s death and, therefore, was properly excluded from the husband’s probate estate. We further hold, however, that the DMV printout did not satisfy the requirements for a valid transmutation under the subject statute and, therefore, the automobile should have been included in the probate estate as the husband’s separate property. In the unpublished portion of this opinion, we reject the claim that the husband’s pre-marriage gift of his separate property jewelry to the wife was invalid under the transmutation writing requirements of section 852, subdivision (a). Thus, we reverse the judgment as to the vehicle, but affirm it in all other respects.

Decedent, Everett Bibb (Everett), and his first wife, Ethel Bibb (Ethel), had one child, Dozier Bibb (Dozier), appellant herein. During his marriage to Ethel, Everett purchased a lot in Berkeley, California, and constructed an apartment building thereon. Ethel died on November 25, 1977.

Everett began dating Evelyn Bibb (Evelyn), respondent herein, in 1988 or 1989. On January 29, 1991, Everett purchased a Rolls Royce automobile, and registered it in his name alone. After their marriage, the Rolls Royce was reregistered in 1995 in the names of Everett or Evelyn. In 1992, prior to their marriage, Everett gave Evelyn an engagement and wedding ring set that had belonged to Ethel. Everett married Evelyn in December of 1992. Evelyn testified that, after their marriage, money was used from a joint account to pay the man from whom Everett had purchased the Rolls Royce and to pay for maintenance and repairs on the vehicle.

In the latter part of 1994, Everett applied for a $225,000 loan, which was to be secured by the Berkeley property and was to be used, in part, to renovate the apartment building located thereon. Everett was unable to qualify for the loan with his own credit. In order to qualify for the loan based upon his wife’s good credit, Everett signed a grant deed on January 24, 1995, conveying the real property from himself to himself and Evelyn, “his wife as joint tenants.” Evelyn signed the note secured by a deed of trust on the subject property.

After having suffered a stroke in February of 1995, Everett died intestate on September 6, 1995. After Everett’s death, Evelyn reregistered the Rolls Royce in her name alone, and, by signing an affidavit terminating joint tenancy, took title to the Berkeley property in her name alone.

Evelyn filed a petition for probate of Everett’s estate on January 27, 1999. On November 15, 1999, Dozier filed a petition to establish the estate’s ownership of the Berkeley property, the Rolls Royce and the wedding ring set, contending that the property had not been validly transmuted from Everett’s separate property under section 852, subdivision (a). The trial court heard Dozier’s petition on May 22, 2000, and filed a statement of decision denying it on May 26, 2000. Thereafter, Evelyn submitted proposed findings and order, denying Dozier’s petition as to the Berkeley property, the Rolls Royce and the ring set. Referring to the statement of decision, the trial court crossed out the proposed findings and signed the order. Dozier submitted a proposed judgment in accordance with the order, which judgment was adopted and filed by the trial court on July 11, 2000.

On July 13, 2000, Dozier filed a timely notice of appeal from the trial court’s July 11, 2000 judgment denying his petition to establish the estate’s ownership of the subject property.

Relying on Estate of MacDonald (1990) 51 Cal.3d 262, 272 (MacDonald), Dozier contends that the grant deed purporting to transmute Everett’s separate interest in the Berkeley property into an interest owned as joint tenants by Everett and Evelyn does not satisfy the “express declaration” requirement of section 852, subdivision (a), because it does not contain language “ ‘expressly stat[ing] that the characterization or ownership of the property [was] being changed.’ ” Evelyn responds that the real property is presumed to be held in joint tenancy, as described in the grant deed, and, therefore, is excluded from probate under Probate Code section 6600, subdivision (b)(1).

The “express declaration” requirement for a valid transmutation of property under section 852, subdivision (a), was construed by the Supreme Court in MacDonald, supra, 51 Cal.3d 262.[2] The property at issue in MacDonald was the $266,557.90 disbursement from the husband’s community property pension plan. (Id. at p. 265.) Those funds were placed into three IRA accounts, which were opened in the husband’s name alone, with the designated beneficiary of each a revocable living trust that left the bulk of the corpus to his children from a prior marriage. (Ibid.) Under “consent paragraphs,” the IRA account agreements required the signature of a spouse not designated as the sole primary beneficiary to consent to the designation. (Ibid.) Mrs. MacDonald signed the consent paragraphs for all three IRA accounts. (Ibid.) Because the consent paragraphs were signed by Mrs. MacDonald, there was no dispute that the documents satisfied the requirements of a writing that was “made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” (§ 852, subd. (a); MacDonald, supra, at pp. 267-268.) Thus, the specific issue addressed by the court in MacDonald was whether the consent paragraphs “constitute ‘an express declaration’ for the purposes of section [852, subdivision (a)].” (MacDonald, supra, at p. 268.)

The court, in MacDonald, supra, 51 Cal.3d at p. 268, found that “[i]t is not immediately evident from a reading of section [852, subdivision (a)] what is meant by the phrase ‘an express declaration.’ Examination of the words of the statute and their arrangement reveals only that the ‘express declaration’ called for is to be one ‘by’ which ‘[a] transmutation of real or personal property’ is ‘made.’ The statute does not state what words such an ‘express declaration’ must include, what information it must convey, or even what topics it should discuss.” Because it found that the “express declaration” language of the statute is unclear and ambiguous, the MacDonald court turned to the legislative history and the historical circumstances of the statute’s enactment, in order to “ascertain the intent of the Legislature so as to effectuate the purpose of the law.” (Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645; MacDonald, supra, 51 Cal.3d at p. 268.) In this regard, the court found that, prior to the enactment of section 852, it was “quite easy for spouses to transmute both real and personal property; a transmutation [could] be found based on oral statements or implications from the conduct of the spouses.” (Recommendation Relating to Marital Property Presumptions and Transmutations, 17 Cal. Law Revision Com. Rep. (1984) (Commission report) p. 213; MacDonald, supra, at p. 269.) The prior rule of “easy transmutation” was found to have caused extensive litigation in dissolution proceedings and to encourage spouses to “commit perjury by manufacturing an oral or implied transmutation.” (Commission report, supra, at p. 214; MacDonald, supra, at p. 269.) Based on this history, the Supreme Court concluded that section 852, subdivision (a), was intended “to create a writing requirement which enables courts to validate transmutations without resort to extrinsic evidence and, thus, without encouraging perjury and the proliferation of litigation.” (MacDonald, supra, at p. 272.)

The court in MacDonald, supra, 51 Cal.3d at pp. 271-272, determined exactly what type of writing the legislature intended to require by use of the phrase “express declaration.” To aid in this determination, the court referred to its previous construction of a similar writing requirement in Civil Code section 683, subdivision (a) which requires that the creation of a joint tenancy be “expressly declared.” (MacDonald, at pp. 271-272; see California Trust Co. v. Bennett (1949) 33 Cal.2d 694 (Bennett).) In Bennett, supra, at p. 699, the high court observed: “It is well settled that where a statute requires the formality of a writing for the creation of an interest in the property, it must contain words indicating an intent to transfer such interest, . . .” (Italics added.) Under this principle, Civil Code section 683 was interpreted so as to ensure “that a court need not look beyond the face of the proffered writing to determine whether its writer intended to create a joint tenancy.” (MacDonald, supra, at p. 272, italics added.) Explicitly following the approach elucidated in Bennett, supra, at p. 699, the court, in MacDonald, supra, at p. 272, concluded that a writing signed by the adversely affected spouse is not an “express declaration” for purposes of section 852, subdivision (a), “unless it contains language which expressly states that the characterization or ownership of the property is being changed.” (Italics in original.)

In MacDonald, supra, 51 Cal.3d at pages 272-273, the court held that the IRA account consent agreements did not satisfy the express declaration requirement of section 852, subdivision (a), because they did not contain language characterizing the property assertedly being transmuted, it was impossible to tell from the face of the documents whether Mrs. MacDonald was “aware that the legal effect of her signature might be to alter the character or ownership of her interest in the pension funds,” and there was no language expressly stating that she was effecting a change in the character or ownership of her interest. In arriving at its holding, the court clarified that a valid writing under the subject statute need not include “the term transmutation or any other particular locution.” (MacDonald, at p. 273.) In fact, the court held that the paragraph signed by Mrs. MacDonald would have been sufficient under section 852, subdivision (a), had it included an additional sentence reading: “ ‘I give to the account holder any interest I have in the funds deposited in this account.’ ” (MacDonald, at p. 273.)

As with the requirements for the creation of a joint tenancy under Civil Code section 683, the requirements for a valid transmutation under section 852, subdivision (a), can be divided into two basic components: (1) a writing that satisfies the statute of frauds; and (2) an expression of intent to transfer a property interest. Based upon the MacDonald court’s interpretation and application of section 852, subdivision (a), as well as its reliance upon its prior construction of the express declaration requirement in Civil Code section 683, we understand the Supreme Court to have interpreted the express declaration language of section 852, subdivision (a), to specifically require that a writing effecting a transmutation of property contain on its face a clear and unambiguous expression of intent to transfer an interest in the property, independent of extrinsic evidence. (See In re Marriage of Barneson (1999) 69 Cal.App.4th 583, 593 (Barneson) [“The MacDonald test . . . requires only a clear demonstration of a change in ownership or characterization of the property at issue”].)

As with the consent paragraphs in MacDonald, supra, 51 Cal.3d at p. 268, there is no dispute in this case that the grant deed, which was signed by Everett, is a writing that was “made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” (§ 852, subd. (a).) Thus, we need only determine whether the deed, independent of extrinsic evidence, contains a clear and unambiguous expression of intent to transfer an interest in the property. The grant deed on the Berkeley property states that Everett, as surviving joint tenant, granted the property to himself and Evelyn as joint tenants.[3] The deed is drafted in the statutory form required for expressing an intent to transfer an interest in real property. (See Civ. Code, §§ 1091, 1092.[4]) Since the MacDonald court held that the consent paragraphs would have been adequate for a valid transmutation had they said, “ ‘I give to the account holder any interest I have . . . ,’ ” and since “grant” is the historically operative word for transferring interests in real property, there is no doubt that Everett’s use of the word “grant” to convey the real property into joint tenancy satisfied the express declaration requirement of section 852, subdivision (a). (MacDonald, supra, at p. 273, italics added.) Thus, the Berkeley property was validly transmuted into property held in joint tenancy, became

Evelyn’s separate property upon Everett’s death, and was properly excluded from the

The document purporting to evidence the transmutation of the Rolls Royce in this case is a computer printout entitled “DMV Vehicle Registration Information,” which reflects that, as of October 5, 1995, the vehicle, which had been previously registered in Everett’s name alone, was reregistered in the names of Everett or Evelyn. No signature of any party appears on the document. As with the real property, Dozier contends that the DMV printout does not satisfy the “express declaration” requirement of section 852, subdivision (a), because it does not contain language “expressly stat[ing] that the characterization or ownership of the property [was] being changed.” (MacDonald, supra, 51 Cal.3d at p. 272.) Evelyn responds that, because title to the automobile was held in joint tenancy, it is excluded from probate under Probate Code section 6600, subdivision (b)(1). Evelyn further argues that the transfer of title on the Rolls Royce is exempt from the requirements of section 852, subdivision (a), because the property was “commingled or otherwise combined” with marital property, as described in subdivision (d) of the subject statute.

Vehicle Code sections 4150.5 and 5600.5 effectively create a presumption that a vehicle “registered in the names of two (or more) persons as coowners in the alternative by use of the word ‘or’ ” is held in joint tenancy. However, the supreme court’s “interpretation of the ‘express declaration’ language in section 852, subdivision (a), can [also] be viewed as effectively creating a ‘presumption’ that transactions between spouses are not ‘transmutations,’ rebuttable by evidence the transaction was documented with a writing containing the requisite language.” (Barneson, supra, 69 Cal.App.4th at p. 593.) The court in Barneson addressed the conflict in the presumptions created by section 852, subdivision (a), and Evidence Code section 662, which provides that “[t]he owner of the legal title to property is presumed to be the owner of the full beneficial title.” Barneson held that, because the supreme court’s interpretation of section 852, subdivision (a), was based in part on a policy of “ ‘assuring that a spouse’s community property entitlements are not improperly undermined,’ ” the general presumption under Evidence Code section 662 should not be used to negate the more specific requirements of section 852, subdivision (a). (Barneson, at p. 593; see MacDonald, supra, 51 Cal.3d at pp. 268-272.) Following the principle enunciated in Barneson, the more general form of title presumption created by Vehicle Code sections 4150.5 and 5600.5 should not be used to negate the requirements of section 852, subdivision (a), which assure that a spouse’s separate property entitlements are not undermined. (MacDonald, at pp. 268-272; see also In re Marriage of Haines (1995) 33 Cal.App.4th 277, 301-302 [in case of conflict, the more specific presumption of undue influence in transactions between married persons under section 721 prevails over the more general presumption of ownership from title under Evidence Code section 662].)

Although the DMV printout may comply with the requirements for a presumption of joint tenancy under Vehicle Code sections 4150.5 and 5600.5, there is nothing on the face of the document evidencing that the change in the form of title was “made, joined in, consented to, or accepted by” Everett, the spouse whose interest in the property was adversely affected. (§ 852, subd. (a).) Moreover, the document does not contain a clear and unambiguous expression of Everett’s intent to transfer his interest in the subject property, as required by section 852, subdivision (a). (MacDonald, supra, 51 Cal.3d at pp. 271-273; see Estate of Peterson (1994) 28 Cal.App.4th 1742, 1754-1755 [designation of joint tenancy on account statement does not satisfy the requirement of an express written declaration pursuant to section 852, subd. (a)].) Thus, the Rolls Royce was not validly transmuted from Everett’s separate property.

We are unpersuaded by Evelyn’s argument that the Rolls Royce is exempt from the requirements of section 852, subdivision (a). Subdivision (d) of section 852 provides that “[n]othing in this section affects the law governing characterization of property in which separate property and community property are commingled or otherwise combined.” As discussed above, application of section 852, subdivision (a), dictates that the Rolls Royce, which was owned separately by Everett prior to his marriage to Evelyn, maintain its character as Everett’s separate property. In arguing that the Rolls Royce was somehow commingled or otherwise combined with marital property, Evelyn fails to cite any law governing the characterization of commingled or combined property, under which the vehicle should be characterized as something other than Everett’s separate property. Since Evelyn fails to cite any law that conflicts with section 852, subdivision (a), there is no basis to conclude that the statute is inapplicable. (See Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700 [“When an issue is unsupported by pertinent or cognizable legal argument it may be deemed abandoned and discussion by the reviewing court is unnecessary”].)

In short, because the Rolls Royce was not validly transmuted under section 852, subdivision (a), it remained Everett’s separate property. Thus, the trial court erred in excluding it from the probate estate.

Subdivision (c) of section 852 provides: “This section does not apply to a gift between the spouses of clothing, wearing apparel, jewelry, or other tangible articles of a personal nature that is used solely or principally by the spouse to whom the gift is made and that is not substantial in value taking into account the circumstances of the marriage.” (Italics added.) Dozier contends that, because the evidence revealed that Evelyn did not actually wear the ring set at issue in this case, she did not use the gift as required for it to fall within the exception to section 852, subdivision (a), as set forth in subdivision (c) of the statute. Evelyn responds that, although she has not worn the jewelry, she does “use” it as a keepsake within the meaning of section 852, subdivision (c). In making these arguments, both parties ignore the fact that the gift does not come within the provisions of sections 850-852.

As Dozier concedes, the evidence establishes that Everett made a gift of the subject wedding ring set to Evelyn prior to their marriage and the trial court so found. This finding is not challenged on appeal. Because the parties were not married when the

gift was made, the transaction does not come within the provisions of section 850[5] and is not subject to the formalities required by section 852, subdivision (a). Thus, we do not have occasion to address herein whether it is necessary for a spouse to wear jewelry that is given to him or her by the other spouse during the course of marriage in order for the gift to be “used” within the meaning of section 852, subdivision (c).

The trial court properly determined that the ring set was Evelyn’s separate property, and, therefore, is not part of Everett’s probate estate.

Reversed with respect to the Rolls Royce. Affirmed in all other respects. Parties are to bear their own costs on appeal.

* Pursuant to California Rules of Court, rules 976(b) and 976.1, part III of this opinion is not certified for publication.

[1] All further statutory references are to the Family Code, unless otherwise specified.

[2] Although the court in MacDonald, supra, 51 Cal.3d 262, actually construed Civil Code section 5110.730, the identical predecessor statute to section 852, we will refer only to section 852 throughout this opinion for ease of reference and in order to avoid confusion.

[3] Specifically, the grant deed states: “For a valuable consideration, receipt of which is hereby acknowledged, E.L. Bibb, as surviving joint tenant hereby grant(s) to E.L. Bibb and Evelyn R. Bibb, his wife as joint tenants the following described real property in the City of Berkeley[,] County of Alameda, State of California: Legal description attached hereto and made a part hereof by reference[.] Dated January 24, 1995[.] [signature line] E.L. Bibb.”

[4] Civil Code section 1091 provides: “An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing subscribed by the party disposing of the same, or by his agent thereunto authorized by writing.” Civil Code section 1092 provides: “A grant of an estate in real property may be made in substance as follows: [¶] ‘I, A B, grant to C D all that real property situated in (insert name of county) County, State of California, bounded (or described ) as follows: (here insert property description, or if the land sought to be conveyed has a descriptive name, it may be described by the name, as for instance, ‘The Norris Ranch.’) [¶] Witness my hand this (insert day) day of (insert month), 20____. [¶] A B’ ” (Emphasis in original.)

* See footnote 1, ante.

[5] Section 850 states: “Subject to Sections 851 to 853, inclusive, married persons may by agreement or transfer, with or without consideration, do any of the following: [¶] (a) Transmute community property to separate property of either spouse. [¶] (b) Transmute separate property of either spouse to community property. [¶] (c) Transmute separate property of one spouse to separate property of the other spouse.” (Italics added.)

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VOL. 85 JULY 1997 No. 4

The National Labor Relations Act protects and, to a degree, encourages employee concerted action, such as collective bargaining and collective work stoppages. The Act has been criticized as an unwarranted intervention in a competitive, efficient market. This Article applies fundamental concepts of antitrust law and economics to assess the claims that labor markets in the United States are competitive, that the market adequately protects individual employees, and that governmental intervention is therefore unwarranted. The Article concludes that employing firms likely exercise a degree of market power‑the power to set terms unconstrained by competition‑that would be unacceptable if exercised by producers in consumer markets. The author argues that the National Labor Relations Act provides employees with a means to counteract the market power exercised by employing firms, but at the same time attempts to preserve residual competition that the employing firm has not eliminated from the open market.

I think it has been recognized that, due to our industrial growth, it is simply absured [sic] to say that an individual, one of 10,000 workers, is on an equality with his employer in bargaining for his wages .... When 10,000 come together and collectively

Member of the New York and California Bars. B.A. 1991, Harvard College; J.D. 1995, Georgetown University Law Center. The author would like to thank Mike Gottesman for his encouragement, his helpful criticism, and his example.

bargain with the employer, then there is equality of bargaining power.' [W]hat we are doing here is implementing the exact idea of the original Wagner Act, which was to say that the employees in dealing with the employers shall not be at the disadvantage of being a thousand men on their side, dealing with one man on the other side. Instead of that, the act intended that one man representing the union should deal with one man representing the employer.'

The National Labor Relations Act ("NLRA"),' enacted in 1935, provides that "[e]mployees shall have the right to self‑organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . ." Pursuant to the central provisions of the NLRA, an employing firm runs afoul of the law if it attempts to undermine or bypass its employees' attempts to associate and bargain collectively.' To many legislators, industry representatives, and academics, however, this amounts to state encouragement of unions, presumptively distorts the efficient functioning of the market, and appears rationally indefensible.'

1. To Create a National Labor Board: Hearings on S. 2926 Before the Senate Comm. on Education and Labor, 73d Cong. 9 (1934) [hereinafter Labor Bd. Hearings] (statement of Sen. Wagner), reprinted in I NLRB, LEGISLATIVE HISTORY OF THE NATIONAL LABOR RELATIONS ACT OF 1935, at 47 (1985).

2. 93 CONG. REC. 4573 (1947) (statement of Sen. Taft) (referring to proposed reforms to the NLRA subsequently enacted in the Taft‑Hartley Act of 1947), reprinted in LEGISLATIVE HISTORY OF THE LABOR MANAGEMENT RELATIONS ACT OF 1947, at 1225‑26 (1974).

4. An employing firm can be enjoined from and sanctioned for various "unfair labor practices." 29 U.S.C. § 158(a). These include, inter alia, interfering with, restraining, or coercing employees in the exercise of the right to self‑organization; dominating or interfering with labor organizations; discriminating against pro‑union employees or potential employees with regard to hiring, tenure, or the terms and conditions of employment; and failing to bargain with employees' collective bargaining representative. See 29 U.S.C. § 158(a)(1)‑(3),(5).

5. See, e.g., SENATE COMM. ON LABOR AND HUMAN RESOURCES, WORKPLACE FAIRNESS ACT, S. REP. No. 103‑110, at 36 (1993) [hereinafter SENATE COMM.] (arguing that encouragement of unionization dislodges wages from market forces of supply and demand); RICHARD A. POSNER, OVERCOMING LAW 456 (1995) (referring to labor unions as "industrial dinosaurs" and stating that their passing would be a positive development); RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 325 (1992) [hereinafter POSNER, ECONOMIC ANALYSIS OF LAW] ("The NLRA is . . . designed to encourage cartelization of labor markets, whereas the Sherman Act (and the other antitrust laws) are designed to discourage cartelization of product markets .... [T]he economic logic of the law is not always a logic of efficiency."); Richard A. Epstein, A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation, 92 YALE L.J. 1357 (1983) [hereinafter Epstein, Common Law for Labor Relations] (asserting that the law's special treatment of labor issues is inappropriate); see also RICHARD A. EPSTEIN, FORBIDDEN GROUNDS: THE CASE AGAINST EMPLOYMENT DISCRIMINATION

The amendments to the NLRA enacted in the Taft‑Hartley Act of 1947 established significant limitations on the union activity protected by the NLRA 6 These limitations on employee association, in particular the prohibition on secondary boycotts,' have bFen widely criticized by supporters of unionization.' By what principle can contending and inconsistent positions on the proper scope of government‑protected and government‑permitted unionization be mediated?

One judge and scholar has stated that the labor laws are "a fascinating counterpoint to the antitrust laws . . . . [A] kind of reverse Sherman Act."' In this Article, I apply principles of antitrust economics and policy to argue the contrary point; the legal regime presently governing labor relations in the United States is firmly rooted in theoretical precepts that are considered uncontroversial in antitrust regulation of product markets. This is true both insofar as the current law encourages unions and insofar as it places limits on unionization. I will argue that lack of competition in, or centralization of control over, the supply of jobs is the primary concern of our labor laws. Critics of the NLRA ignore, and supporters of unions fail to explore, basic analogies between this concern for lack of competition in the job market and the parallel concern for lack of competition in product markets.

In Part I, I propose and defend a comprehensive theory of American labor law: the "countervailing market power" ("CMP") model of labor relations."" The CMP model posits that labor laws are

LAWS (1992) [hereinafter EPSTEIN, FORBIDDEN GROUNDS] (extending his critique of intervention in labor markets to anti‑discrimination laws).

6. The Taft‑Hartley Act guaranteed employees the right to refrain from participation in a union, except where an employing firm had entered into a union security clause. See 29 U.S.C. § 157. It also prohibited several unfair labor practices by labor organizations. See 29 U.S.C. § 158(b)(1)‑(7).

7. The definition of a secondary boycott is complex. See infra Part II.B. In brief, a secondary boycott is one form of appeal outside the immediate workplace for help in shutting down an employing firm by cutting off supplies. See 29 U.S.C. § l58(b)(4). In this Article, I focus on appeals to other workers.

8. See, e.g., SENATE Comm., supra note 5, at 14‑15 (criticizing "law's gradual sapping of union strength," most notably the 1947 Taft‑Hartley Act's limitations on secondary boycotts); PAUL C. WEILER, GOVERNING THE WORKPLACE: THE FUTURE OF LABOR AND EMPLOYMENT LAW 26973 (1990) [hereinafter WEILER, GOVERNING THE WORKPLACE] (arguing that the prohibition on secondary boycotts gives employers a "special legal advantage"); Paul Weiler, Striking a New Balance: Freedom of Contract and the Prospects for Union Representation, 98 HARV. L. REV. 351, 415 (1984) [hereinafter Weiler, Striking a New Balance] (stating that the current secondary boycott doctrine "fits very uncomfortably with a regime of free collective bargaining").

9. POSNER, ECONOMIC ANALYSIS OF LAW, supra note 5, at 325. From the context, it seems clear that Judge Posner does not intend "fascinating" as high praise, and that it is likely intended to be interpreted to mean "indefensible."

10. Economist John Kenneth Galbraith coined the concept of countervailing power. See JOHN KENNETH GALBRAITH, AMERICAN CAPITALISM: THE CONCEPT OF COUNTERVAILING POWER 108‑34 (1980) (first published 1952). Until the last few decades, it was widely acknowledged that the NLRA and other New Deal legislative programs were intended to encourage the growth of non‑business

primarily structured to counteract a specific form of power in private relations‑market power created by the growth of large firms or, economically speaking, by the integration and concentration of productive resources. In plain language and in short, "market power" exists because workers are presented with too few and inadequate substitutes for the employing firms with whom they get stuck to enjoy the liberties that a competitive market presumes.

Contemporary analyses of our labor laws ignore the need for countervailing market power because they ignore three essential propositions. First, an employing firm is a form of collective ownership and control of productive resources by investors and is therefore a restraint on trade in the supply of jobs. Second, as a result, competition is severely curtailed in labor markets. Contemporary labor law scholars assume that, for the typical employee, a broad spectrum of jobs provides adequate substitute opportunities. From this they conclude that unreasonable demands by one employing firm will result in a painless substitution of jobs by the employee. However, the relevant labor market for most potential employees is far narrower than labor law scholars posit. Consequently, employer restraints on trade circumscribe competition on the job‑supply side of the labor market far more than commonly acknowledged. Third, the market cannot be relied upon to "restore" competitive conditions in labor markets. Potential employers will not rush to pay competitive wages in markets where existing employers exercise market power, because employers, in order to survive in highly competitive product and stock markets, are forced to exercise market power in labor markets. The competitive price in these other markets presumes a noncompetitive price in labor markets.

These three propositions establish an analytic framework that has, as of yet, not been fully developed." In Part I, I discuss each of the above propositions in detail. By analyzing the deficiencies in the neoclassical analysis, I illustrate how these three propositions compel a fundamentally different conclusion about the social value of unions and the

groups that could counteract the market power of businesses with their own market power. See id. at 136; ELLIS W. HAWLEY, THE NEW DEAL AND THE PROBLEM OF MONOPOLY 7 (1966) (stating that some New Dealers, "wary of governmental intervention, hoped that business could reform itself or that non‑business groups could develop their own market power").

11. My starting point is the proposition that an employing firm is a restraint on trade. In this respect, I am simply repeating the received wisdom of the past. However, my analysis differs from that of earlier scholarship, and from Galbraith's in particular, in asserting that market power is likely more prevalent in labor markets than in product markets and that the competitive nature of product and investment markets may exacerbate the exercise of market power by employing firms in labor markets. In AMERICAN CAPITALISM, Galbraith conducted no serious analysis of the differences between competitive potential in product and labor markets. Instead, he seems to have summarily concluded that almost all product and labor markets are not competitive. See generally GALBRAITH, supra note 10.

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Trial Judge:	David B. Flinn
Trial Court:	Contra Costa County Superior Court
Counsel for Appellant:	James P. McBride
Counsel for Respondent:	Richard H. Bartke

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