REFLECTIONS ON THE DECLINING PRESTIGE OF AMERICAN by alicejenny

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									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
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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).
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]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).
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      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).
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]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.
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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).
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]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).
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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).
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]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,
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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
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]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).
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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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