ESTLUNDARTICLE23-3.DOC 7/1/2005 8:23:49 AM REFLECTIONS ON THE DECLINING PRESTIGE OF AMERICAN LABOR LAW SCHOLARSHIP Cynthia Estlund† I want to offer a brief historical perspective on the state of American labor law scholarship, and on a question that is near and dear to labor law academics: Why has our prestige within the American legal academy fallen so low? Labor law scholars were for several decades from the 1930s through the 1960s at the forefront of the legal academy. The field drew leading figures in academic law— Archibald Cox, Derek Bok, and, if we go back a bit further, Robert Hale and Felix Frankfurter. One major law school, the University of Pennsylvania, even put labor law in its required first-year curriculum; no respectable law school could neglect the area. Nowadays, labor law—by which I mean the law of collective labor relations, of unions, concerted activity, and collective bargaining—is regarded as a virtual backwater in the legal academy. More than one major law school does not feel the need to have even one labor law scholar on its full- time faculty. I want to raise three questions about this development: First, why was labor law as highly placed in the legal ivory tower as it was from the 1930s through the 1960s? Second, what happened to precipitate its fall from that exalted place? Third, is “employment law”—the relatively new field that has developed since the heyday of labor law—on its way to capturing that prestigious position? Beyond posing the questions, I will only sketch some possible answers here. I. First, why did labor law have such a central place in the legal academy, especially from the 1930s through the early 1960s? The groundwork was laid before the New Deal legislation in the “Lochner era” battle between the judiciary and the legislatures during the early twentieth century over the proper allocation of authority over social † Professor, Columbia Law School. 789 ESTLUNDARTICLE23-3.DOC 7/1/2005 8:23:49 AM 097 987:32 .loV[ LANRUOJ Y’LOP & WAL ROBAL .PMOC and economic relations.1 As the very name of the era attests, labor law was the primary battleground for this great constitutional conflict, for legislative efforts to regulate the terms of the labor contract posed the most direct challenge to the reigning constitutional construct of “liberty of contract.”2 Indeed, “the labor question” was arguably the foremost social and economic question of the age; certainly it was the primary source of ongoing social conflict. Labor organizing and protest activity—which many local and state officials sought to suppress—precipitated some of the crucial legal contests over the scope of civil liberties during the 1930s and 1940s.3 The legal academy was deeply engaged in this battle. Perhaps the leading school of legal academic thought leading up to New Deal— Legal Realism—was intimately engaged in the critique of the liberty of contract paradigm that was used to strike down much early twentieth century labor legislation. Robert Hale, Morris Cohen, and their fellow Legal Realists at Columbia and Yale addressed themselves directly and urgently to this building constitutional crisis.4 Felix Frankfurter, from his elite perch at the Harvard Law School, was central both in building the intellectual case against the labor injunction and in drafting the legislative efforts to contain it.5 And the intellectual foundations of the Wagner Act—still the basic charter of modern American labor law—were partly shaped by legal academics, many of whom were highly engaged public intellectuals.6 The stature of labor law within the academy was bolstered by the romance of the labor movement and the New Deal breakthrough. The Wagner Act was born in a moment of high drama, complete with heroes and villains and plenty of suspense, at all levels. The Act was enacted in 1935 in the wake of a sweeping electoral mandate for government intervention in the economy and a wave of militancy on 1. Lochner v. New York, 198 U.S. 45 (1905). 2. See, e.g., Lochner v. New York, 198 U.S. 45 (1905); Adair v. United States, 208 U.S. 161 (1907); Coppage v. Kansas, 236 U.S. 1 (1915); In re Debs, 158 U.S. 564 (1895). 3. Hague v. Committee for Indus. Organization, 307 U.S. 496 (1939); Thornhill v. Alabama, 310 U.S. 88 (1940); DAVID M. RABBAN, FREE SPEECH IN ITS FORGOTTEN YEARS (1997). 4. Morris Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8 (1928); Walter Wheeler Cook, Privileges of Labor Unions in the Struggle for Life, 27 YALE L.J. 779 (1918); Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. SCI. Q. 470 (1923); Wesley Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 YALE L.J. 16 (1913). 5. FELIX FRANKFURTER & LEON GREEN, THE LABOR INJUNCTION (1930); James Gray Pope, The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957, 102 COLUM. L. REV. 1 (2002). 6. See Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 HARV. L. REV. 1379 (1993). ESTLUNDARTICLE23-3.DOC 7/1/2005 8:23:49 AM ]2002 PIHSRALOHCS WAL ROBAL NACIREMA 197 the shop floor.7 Its provisions summon to mind the absorbing spectacle of autoworkers taking over their factory.8 Its constitutional vindication in 1937 in NLRB v. Jones & Laughlin Steel9 was the climax of a gripping tale of political brinkmanship by the President, the Congress, and the Supreme Court.10 Roosevelt’s court-packing plan and the storied “switch in time”—the import of which was dramatically manifested in the upholding of the Wagner Act itself— added greatly to the epoch-making quality of the Act.11 Moreover, the Wagner Act and its constitutional vindication seemed to promise, and to some extent delivered, a just and peaceable resolution to “the labor question,” which had plagued American society for generations. There was no doubt that the scholars and the scholarship that played a part in bringing about that resolution were at the very center of the public agenda. The actual design and text of the Wagner Act contributed to the prestige of labor law scholarship. The Wagner Act created a “beautiful system”—or so it still seems to many of us who teach labor law. It was beautiful in its coherence, founded as it was on decades of trade union and collective bargaining practice, and filtered as it was through the brilliant statesmanship of Senator Wagner.12 And the animating ideas—reflected in the quasi-constitutional text of the Act’s most basic provisions—were grand and ennobling, for they proposed the extension of freedom and democracy into industrial life.13 It articulated fundamental rights; it laid the groundwork for institutions of self-governance within industry; and it reconceived the nature of contract and private ordering within the labor market. All of these qualities lent to labor law scholarship the prestige associated with public law and constitutional lawmaking. 7. IRVING BERNSTEIN, TURBULENT YEARS: A HISTORY OF THE AMERICAN WORKER, 1933-1941, 318-351 (1971). 8. Id. at 499-571; Drew D. Hansen, The Sit-Down Strikes and the Switch in Time, 46 WAYNE L.R. 49 (2000). 9. N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937). 10. James Gray Pope, The Thirteenth Amendment Versus the Commerce Clause: Labor and the Shaping of American Constitutional Law, 1921-1957, 102 COLUM. L. REV. 1, 88-9 (2002). 11. The “switch in time” came in two phases: First, the Court explicitly abandoned the “liberty of contract” as a basis for searching review of any government regulation of economic relations, see, e.g., West Coast Hotel v. Parrish, 300 U.S. 379 (1937). Second, in N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), the Court recognized that Congress’ power to regulate commerce included the regulation of ordinary manufacturing. 12. Mark Barenberg, The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation, 106 HARV. L. REV. 1379 (1993). 13. Clyde W. Summers, Industrial Democracy: America’s Unfulfilled Promise, 28 CLEV. ST. L. REV. 29, 33-34 (1979) (expectation and promise of Wagner Act was system of industrial democracy); Craig Becker, Democracy in the Workplace: Union Representation Elections and Federal Labor Law, 77 MINN. L. REV. 495 (1993). ESTLUNDARTICLE23-3.DOC 7/1/2005 8:23:49 AM 297 987:32 .loV[ LANRUOJ Y’LOP & WAL ROBAL .PMOC But there was more. For the “beautiful system” of labor law was also a system that required enormous institutional adjustments, both before and after the major anti-union amendments of 1947.14 It required a shift from state and local law to national law, and from judicial to administrative lawmaking processes. With regard to the resolution of particular industrial disputes, it required the development of a body of law about arbitration and arbitral authority as against judicial interpretation and enforcement of collective agreements, and about the limits of collective bargaining as against individual contract. The Supreme Court was necessarily a frequent and leading actor in carrying out these great institutional changes, and the Court engaged the labor law academy in an intense dialogue over these changes.15 The law of federal labor preemption,16 the federal common law of collective bargaining agreements,17 the Steelworkers’ Trilogy establishing principles of deference to labor arbitration,18 unions’ duty of fair representation and the scope of their exclusive representation,19 and the principles governing judicial review of NLRB decisions20 are among the watershed developments of this period. The labor law scholars of the 1940s, 1950s, and early 1960s could realistically aspire to making a real mark on what all agreed were fundamental issues of public policy and institutional design. And the labor law academy gained stature from the exalted status of its chief conversation partners. 14. The Labor Management Relations, or Taft-Hartley, Act of 1947, 29 U.S.C.A §141 et seq. 15. Archibald Cox himself carried on a remarkably wide-ranging dialogue with the Court. See, e.g., Archibald Cox, Some Aspects of the Labor Management Relations Act, 1947, 61 HARV. L. REV. 274 (1948); Archibald Cox & John Dunlop, Regulation of Collective Bargaining by the National Labor Relations Board, 63 HARV. L. REV. 389 (1950); Archibald Cox, Strikes, Picketing and the Constitution, 4 VAND. L. REV. 574 (1951); Archibald Cox, Federalism in the Law of Labor Relations, 67 HARV. L. REV. (1954); Archibald Cox, Grievance Arbitration in the Federal Courts, 67 HARV. L. REV. 591 (1954); Archibald Cox, The Duty of Fair Representation, 2 VILL. L. REV. 151 (1957); Archibald Cox, The Duty to Bargain in Good Faith, 71 HARV. L. REV. 1401 (1958); Archibald Cox, Reflections Upon Labor Arbitration, 72 HARV. L. REV. 1482 (1959). 16. San Diego Bldg. Trades Council v. Garmon, 359 U.S. 236 (1959); Lodge 76, Machinists v. Wisconsin Board, 427 U.S. 132 (1976). On the development of federal labor law preemption, see ROBERT GORMAN, BASIC TEXT ON LABOR LAW (1976), Archibald Cox, Labor Law Preemption Revisited, 85 HARV. L. REV. 1337 (1972). 17. Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448 (1957); Boys Markets, Inc. v. Retail Clerk’s Union, Local 770, 398 U.S. 235 (1970). 18. United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers of Am. v. American Mfg. Co., 363 U.S. 564 (1960). 19. See, e.g., J.I. Case Co. v. NLRB, 321 U.S. 332 (1944); Steele v. Louisville & Nashville R. Co. 323 U.S. 192 (1944); Ford Motor Co. v. Huffman, 345 U.S. 330 (1953). 20. Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951); Leedom v. Kyne, 358 U.S. 184 (1958). ESTLUNDARTICLE23-3.DOC 7/1/2005 8:23:49 AM ]2002 PIHSRALOHCS WAL ROBAL NACIREMA 397 But it was also the nature of that dialogue that put labor law and labor law scholarship at the very center of the legal academy during this era. For the dominant post-war school of thought among elite law faculties about the nature of legal authority was the Legal Process school, which held that the law’s legitimacy lay in its allocation of decisionmaking authority to the right institutional actors.21 The most important law was the law of “who decides.” And that was what labor law was all about during this post-war era: It was the most fully- developed exemplar of the jurisprudence of “who decides.” II. So what has happened since then that has pushed labor law scholarship to the margins of the legal academy? First, of course, there was the steady decline of organized labor to less than ten percent of the private sector. There can be no collective bargaining without collective representation. Not surprisingly, the shrinking reach of the “beautiful system” of labor law and collective bargaining—and perhaps the resulting decline in student demand for labor law courses—brought with it a decline in the prestige and perceived importance of labor law scholarship. The labor movement after the 1950s became not only smaller in size, but smaller in spirit. Organized labor began to look and act less like a social movement for industrial democracy and basic economic rights, and more like a self-interested faction seeking more of the economic pie for itself—indeed, more like the corporate moguls across the bargaining table, but without the considerable advantages of capital ownership. As George Meany became the face of the labor movement, the labor movement became part of the “establishment.”22 It did not help that, during the political coming-of-age of much of the current professoriat, leading elements of the labor movement cast their lot with the proponents of the Vietnam War and loudly 21. HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994); William N. Eskridge, Jr. & Philip P. Frickey, The Supreme Court, 1993 Term—Foreword: Law as Equilibrium, 108 HARV. L. REV. 26 (1994). The Hart & Sacks “materials” were only published recently, but in substantially the same form in which they circulated and were used in teaching the Legal Process course for many years. 22. In 1972, George Meany, head of the AFL-CIO from 1955–1979, succinctly captured organized labor’s indifference toward the unorganized: “Why should we worry about organizing groups of people who do not appear to want to be organized? . . . I used to worry about . . . the size of the membership. But quite a few years ago I just stopped worrying about it, because to me it doesn’t make any difference.” U.S. Needs “30,000 New Jobs a Week Just to Break Even”, U.S. NEWS & WORLD REP., Feb. 21, 1972, at 27–28. ESTLUNDARTICLE23-3.DOC 7/1/2005 8:23:49 AM 497 987:32 .loV[ LANRUOJ Y’LOP & WAL ROBAL .PMOC repudiated the student peace movement. The resulting gulf between the student activists and the labor movement helped to define what was “new” in the New Left. At the same time, the civil rights movement’s demands for equal citizenship brought about a new wave of constitutional claims and structural demands, for example, for more aggressive judicial protection of individual rights and judicial supervision of public institutions, for greater federal power over states. Those demands claimed much the same moral gravitational force and intellectual space within the legal academy that the labor movement had during the 1930s. Brown v. Board of Education23 and the legal assault on segregation became the defining conflict around which much of the legal academic elite circled.24 Even as compared to the labor movement of the 1930s, the civil rights movement had the added virtue—from the perspective of the legal academy—of putting lawyers and judges at the forefront of the battle for truth and justice. In the 1930s, judges were the agents of reaction, and progressive lawyers devoted much of their energies to keeping labor disputes out of the courts. But in the 1960s and 1970s, courts were among the main stages of the drama and lawyers and judges were themselves among the heroes.25 During this period in the 1960s and 1970s, union leaders increasingly found themselves in conflict with the rising forces of the civil rights movement rather than in alliance with them. Some unions—especially those with their origins in the craft unions of the old American Federation of Labor—had a long history of actively excluding black members and resisting their entry into the trades.26 Others—especially the old industrial unions of the CIO such as the Steel Workers—had a nobler history of inclusion.27 But unions were majoritarian institutions, and the white majority still fought within many unionized workplaces to maintain the seniority and privileges they had secured in mostly segregated plants against the claims of excluded or subordinated black workers for their “rightful place” 23. 347 U.S. 483 (1954). 24. Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & PUB. AFF. 107 (1976); Paul Brest, The Supreme Court, 1975 Term—Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1 (1976); Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421 (1960). 25. JACK BASS, UNLIKELY HEROES (1990). 26. See Local 28, Sheet Metal Workers’ Int’l Ass’n v. EEOC, 478 U.S. 421 (1986); Teamsters v. United States, 431 U.S. 324 (1977); Steele v. Louisville & Nashville R. Co., 323 U.S. 192 (1944). 27. See LIZBETH COHEN, MAKING A NEW DEAL: INDUSTRIAL WORKERS IN CHICAGO, 1919-1939 (1990). ESTLUNDARTICLE23-3.DOC 7/1/2005 8:23:49 AM ]2002 PIHSRALOHCS WAL ROBAL NACIREMA 597 within the plants. Organized labor came to be seen as part of the problem that progressive social movements and the “public interest” legal community sought to address, not part of the solution. Some of that was reflected in labor law scholarship, which began to focus less on the practice and the promise of collective bargaining and more on its oppressive potential. Inspired by union dissidents and discontented minority groups, they turned away from the majoritarian core of collective bargaining toward the rights and identities of those at the margins of the labor movement.28 At the same time, labor law itself began to look less like public law and institution building and more like private law. For one thing, there has been no major statutory reform since 1947 and almost no statutory changes at all since 1959.29 Within about a decade of the last meaningful legislation, or at least by 1970, the big structural and institutional issues generated by the labor legislation of the mid- twentieth century were largely settled. The issues that remained thereafter were still important, but they were mainly important within the shrinking world of collective bargaining. What constituted “concerted activity”?30 What did it mean to “discriminate” against union members, particularly within the context of a labor dispute and the deployment of “economic weapons”?31 What were the permissible bounds of employers’ anti-union campaigns?32 These issues were comparatively low-profile outside the specialized arena of labor law, and didn’t obviously implicate transcendent issues of public policy and public law. Indeed, the very intellectual credentials that had put labor law at the center of the legal academy in the 1950s and the very success of the labor law scholars of that era, contributed mightily to the 28. See, e.g., James Atleson, Work Group Behavior and Wildcat Strikes: The Causes and Functions of Industrial Disobedience, 34 OHIO ST. L. REV. 35 (1975); Karl Klare, The Quest for Industrial Democracy and the Struggle Against Racism: Perspectives from Labor Law and Civil Rights Law, 61 ORE. L. REV. 157 (1982). 29. On the labor law’s age and resistance to change, see Cynthia L. Estlund, The Ossification of American Labor Law, 102 COLUM. L.REV. 1527 (2002). Labor law was taken up as a case study in “aging statutes” in James J. Brudney, A Famous Victory: Collective Bargaining Protections and the Statutory Aging Process, 74 N.C. L. REV. 939 (1996). 30. Matthew W. Finkin, Labor Law by Boz—A Theory of Meyers Industries, Inc., Sears, Roebuck & Co., and Bird Engineering, 71 IOWA L. REV. 155 (1985); B. Glenn George, Divided We Stand: Concerted Activity and the Maturing of the NLRA, 56 GEO. WASH. L. REV. 509 (1988); Robert A. Gorman & Matthew W. Finkin, The Individual and the Requirement of “Concert” Under the National Labor Relations Act, 130 U. PA. L. REV. 286 (1981). 31. See, e.g., Julius G. Getman, The Protection of Economic Pressure by Section 7 of the National Labor Relations Act, 115 U. PA. L. REV. 1195 (1967); Julius G. Getman, Section 8(a)(3) of the NLRA and the Effort to Insulate Free Employee Choice, 32 U. CHI. L. REV. 735 (1965). 32. JULIUS G. GETMAN, STEPHEN B. GOLDBERG & JEANNE B. HERMAN, UNION REPRESENTATION ELECTIONS: LAW AND REALITY (1976). ESTLUNDARTICLE23-3.DOC 7/1/2005 8:23:49 AM 697 987:32 .loV[ LANRUOJ Y’LOP & WAL ROBAL .PMOC marginalization of labor law in subsequent decades. For the whole objective of the “legal process” decisions of the 1950s and early 1960s had been to remove labor law as much as possible from the courts and from politics—from the central institutions of public lawmaking—and to locate it within the domain of “experts”—labor arbitrators and the NLRB.33 Once that was done, the Supreme Court became a much less frequent participant in the formation of labor law, and its interventions became increasingly incremental.34 The labor law academy’s main interlocutors in the legal world were increasingly the NLRB or the courts of appeals. Labor law scholarship of the traditional doctrinal sort began to look quite specialized and interstitial. Of course, as labor law itself became old and stiff in the joints and out of sync with emerging economic realities, many in the labor law academy valiantly offered their diagnoses of the law’s pathology and their prescriptions for a cure.35 But these proposals went nowhere. As organized labor’s decline continued and collective bargaining was increasingly relegated to a few historic strongholds and peripheral sectors, the need for legal reform grew more acute. Yet it seemed— and seems now—that almost anything that comes close to promising a solution calls for major legislation, the political prospects of which appear near zero. Especially after the failed reform effort of 1977-78,36 the political impracticability of significant labor law reform fostered a sense of futility among labor law scholars. The frustration with law reform led many scholars away from law reform scholarship and toward broad- 33. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960)(“The labor arbitrator is usually chosen because of the parties’ confidence in his knowledge of the common law of the shop.”); San Diego Bldg. Trades Council, Millmen’s Union, Local 2020 v. Garmon, 359 U.S. 236 (1959). 34. The declining number of labor cases decided by the Supreme Court, charted in James J. Brudney, The Changing Complexion of Workplace Law: Labor and Employment Decisions of the Supreme Court’s 1999-2000 Term, 16 LAB. LAW. 151, 152 (2000), does not fully capture the increasingly incremental quality of many of the more recent decisions. 35. See, e.g., Craig Becker, Democracy in the Workplace: Union Representation Elections and Federal Labor Law, 77 MINN. L. REV. 495 (1993); Charles B. Craver, The National Labor Relations Act Must Be Revised to Preserve Industrial Democracy, 34 ARIZ. L. REV. 397 (1992); Samuel Estreicher, Labor Law Reform in a World of Competitive Product Markets, 69 CHI.- KENT L. REV. 3 (1993); Michael H. Gottesman, In Despair, Starting Over: Imagining a Labor Law for Unorganized Workers, 69 CHI.-KENT L. REV. 59 (1993); Michael C. Harper, A Framework for the Rejuvenation of the American Labor Movement, 76 IND. L.J. 103 (2001); Paul C. Weiler, Promises to Keep: Securing Workers’ Rights to Self-Organization under the NLRA, 96 HARV. L. REV. 1769 (1983); Paul C. Weiler, Striking a New Balance: Freedom of Contract and the Prospects for Union Representation, 98 HARV. L. REV. 351, 352 (1984). 36. H.R. 8410, 95th Cong., 1st Sess., 123 Cong. Rec. H10714 (daily ed. July 19, 1977); S. 1883, 95th Cong., 1st Sess., 123 Cong. Rec. S12266 (daily ed. July 19, 1977). ESTLUNDARTICLE23-3.DOC 7/1/2005 8:23:49 AM ]2002 PIHSRALOHCS WAL ROBAL NACIREMA 797 gauged criticism without a constructive reform agenda.37 “Trashing” of the existing system—and theorizing its shortcomings—came to seem more worthwhile to many on the left than constructive criticism and reform proposals that were doomed to failure. This new current of labor law scholarship connected with a different set of conversation partners. It was composed less of legal decisionmakers and more of fellow academics, many of them outside the law schools but also within what was becoming an increasingly interdisciplinary legal academy. Of course, those scholarly trends transcended labor law; but for a while in the late 1970s through the 1980s, labor law became a major playing field for critical legal scholarship of this sort. Some of this scholarship was very sophisticated and thoughtful, and exposed some fundamental weaknesses in the “beautiful system” of labor law that contributed to its increasingly evident failings. But the appetite of the rest of the legal academy for this kind of incisive pathology diminished as the body of labor law itself grew increasingly cold. Another perspective on the “pathology” of labor law came from the opposite end of the political spectrum: the “law and economics” movement. For the early exponents of law and economics, labor law appeared to be emblematic of the misconceived New Deal–era approach to economic activity: It rejected the elegant logic of the market and of individual contract in favor of government-sponsored cartelization of the labor market. With the temporary zeal of missionaries, and with as little respect for the local culture, several law-and-economics scholars brought the harsh logic of the neo- classical gospel to the “beautiful system” of labor law and found it hopelessly mired in rent-seeking.38 In this clash of values, labor law scholars found themselves cast as apologists for the ancien regime, while the law-and-economics critics mostly moved on to other battlegrounds. The clash proved fruitful in some ways, for it generated some more nuanced economic analyses of labor law doctrines.39 But it did little to restore the lost prestige of labor law within the academy. 37. See, e.g., JAMES ATLESON, VALUES AND ASSUMPTION IN AMERICAN LABOR LAW (1983); Karl E. Klare, Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62 MINN. L. REV. 265 (1978); Katherine Van Wezel Stone, The Post-War Paradigm in American Labor Law, 90 YALE L. J. 1509 (1981). 38. Richard A. Epstein, A Common Law for Labor Relations: A Critique of the New Deal Labor Legislation, 92 YALE L.J. 1357 (1983); Richard A. Epstein, In Defense of the Contract at Will, 51 U. CHI. L REV. 947 (1984); Richard Posner, Some Economics of Labor Law, 51 U. CHI. L. REV. 988 (1984). 39. Kenneth Dau-Schmidt, A Bargaining Analysis of American Labor Law, 91 MICH. L. REV. 419 (1992); Michael L. Wachter & George M. Cohen, The Law and Economics of Collective Bargaining: An Introduction and Application to the Problems of Subcontracting, ESTLUNDARTICLE23-3.DOC 7/1/2005 8:23:49 AM 897 987:32 .loV[ LANRUOJ Y’LOP & WAL ROBAL .PMOC III. Now of course something else has happened to marginalize “labor law” within the legal academy. For the decline of organized labor and of collective bargaining, and of labor law as a field, has been paralleled by the rise of “employment law”—regulatory regimes such as OSHA, and individual, judicially enforceable rights of employees. Indeed, some have seen that rise not only as caused by but as contributing to the decline of collective bargaining and labor law. In any event, a very important component of that new body of employment law arose directly out of the civil rights movement, which grew to encompass not only the claims of African-Americans but also those of other racial and ethnic minorities, women, older workers, and the disabled. The centrality of litigation and lawyers in these new legal regimes gave them a more salient place in the law school world, and indeed in the legal profession, than what was left of labor law. So we might ask whether this relatively new field of “employment law” is on its way to capturing the exalted place that labor law held fifty years ago in the legal academy? My own view is simple: Not by a long shot. First, nobody would describe employment law as a “beautiful system,” or as a system at all. There are some important pockets of employment law with greater coherence, such as employment discrimination law, which in most major law schools claims its own separate course. There are other pockets of employment law to which scholars have sought, with some success, to bring conceptual coherence, such as the law of implied and express contractual limits on termination.40 But outside of these pockets of coherence, the bulk of employment law is a bit of a hodgepodge, as anyone who has taught employment law will concede. There is lots of room for useful legal scholarship to bring order to this hodgepodge, but that project tends to proceed at a relatively low level of generality and visibility. Moreover, the legal academy’s conversation partners in the legal world are less prestigious than the Supreme Court, which, outside the fields of employment discrimination law and the constitutional law of public employment, has a limited role in shaping employment law.41 Much of the new law of employment is made by Partial Closure, and Relocation, 136 U. PA. L. REV. 1349 (1988); Keith N. Hylton, Efficiency and Labor Law, 87 NW. U. L. REV. 471 (1993). 40. Stewart J. Schwab, Life-Cycle Justice: Accommodating Just Cause and Employment at Will, 92 MICH. L. REV. 8 (1993); Samuel Issacharoff, Contracting for Employment: The Limited Return of the Common Law, 74 TEX. L. REV. 1783 (1996). 41. One important exception is in the Court’s decisions holding mandatory arbitration agreements enforceable as to employment discrimination and other employment law claims ESTLUNDARTICLE23-3.DOC 7/1/2005 8:23:49 AM ]2002 PIHSRALOHCS WAL ROBAL NACIREMA 997 state courts and legislatures. For better or worse, scholarship about state law, and particularly the decidedly non-uniform state law of such fields as employment, is hard to get published in leading law reviews, and rarely has much currency within the faculties of leading law schools.42 Ironically, one of the Supreme Court’s most important interventions into employment law outside of federal antidiscrimination law tends both to lower the visibility and to diminish the “public law” character of employment law. The Court’s decisions upholding the enforceability of mandatory arbitration agreements as to employment law claims, including federal employment discrimination claims, have generated their own flurry of scholarly commentary.43 But the effect of those decisions, like the effect of the labor arbitration decisions of the early 1960s, is to channel workplace disputes away from public institutions and public attention and into private fora with little public exposure. Unlike the labor arbitration decisions, however, the employment arbitration decisions leave the individual employee with no institutional or collective support in her contest with the employer. That brings me to a final point: Employment law lacks the enobling “constitutional” ambition of labor law. It is true that employment law has its dramas and its heroes: Consider the lone whistleblower risking her job and even her life to expose some threat to the public safety. But these dramas are generally small, individual, and local; they do not generally take place on the stage of public policy and public debate. It is also true that there are big ideas and quasi-constitutional issues of liberty, equality, and privacy at stake in employment law. But these big issues are somehow diminished by the institutional means for their enforcement. The “beautiful system” of labor law—for all its flaws—envisioned workers as citizens engaged in the project of democracy; it sought to give them tools for self- under the Federal Arbitration Act. See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 (1991); Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001). But that exception is an ironic one, as these decisions tend—and to some extent intend—to reduce the courts’ involvement in employment disputes and remove them from the public eye. 42. The American Law Institute’s recently launched effort to draft a Restatement of Employment Law—limited though it is to several subcomponents of the field—may focus greater attention on those areas of employment law. 43. See, e.g., RICHARD A. BALES, COMPULSORY ARBITRATION: THE GRAND EXPERIMENT IN EMPLOYMENT (1997); Samuel Estreicher, Predispute Agreements to Arbitrate Statutory Employment Claims, 72 N.Y.U. L. REV. 1344 (1997); Katherine Van Wezel Stone, Mandatory Arbitration of Individual Employment Rights: The Yellow Dog Contract of the 1990s, 73 DENV. U. L. REV. 1017 (1996); Stephen J. Ware, Employment Arbitration and Voluntary Consent, 25 HOFSTRA L. REV. 83 (1996). ESTLUNDARTICLE23-3.DOC 7/1/2005 8:23:49 AM 008 987:32 .loV[ LANRUOJ Y’LOP & WAL ROBAL .PMOC governance. Employment law, by contrast, typically casts workers as subjects claiming the protection of the regulatory state, or as supplicants seeking recompense for past wrongs. It is hard to see employment law ever resolving itself into the kind of “beautiful system” for the governance of the workplace that labor law once was. On the other hand, as the crisis of the New Deal labor law system deepens, and the apparent promise of employment litigation fades, the need for a new legal framework within which workers may rebuild their capacity for collective self-help becomes increasingly apparent. The construction of a new “constitution” of the workplace—a new structure for participatory self-governance—must respond to the multiple challenges posed by more heterogeneous workforces, more fluid labor markets, more intense competition, and newly recognized individual and minority rights. Just as the infusion of minority and individual rights into the political process has brought turmoil and ferment to the “law of democracy,”44 the recognition of heterogeneity and individual rights within the workplace poses challenges for the law of democracy within the workplace—that is, for labor law. The scholarship that rises to those challenges and contributes to that enterprise may yet, incidentally, reclaim a place for labor law within the core of the legal academy. 44. See SAMUEL ISSACHAROFF, PAMELA S. KARLAN & RICHARD H. PILDES, THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS 141-216 (2d ed. 2001), a very large portion of which is taken up with problems arising out of individual rights claims and the rights and representation of minority groups.
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