Assembly and Collective Rights

A Call out of Seir: The Meaning and Future of US Labor Law

“…The Handbook of US Labor Law for the Twenty-First Century performs several valuable roles: it is a primer on the current state of the organized labor movement and on the economic, political, social, and cultural consequences of its weakness (Bales 2020; J. Rosenfeld 2020); it summarizes the state of the field, both of current labor law and of scholarly debate about that law (Andrias 2020; Epstein 2020; Estlund 2020; Gould 2020; Garden 2020a; Hodges and Malin 2020; Kahlenberg and Marvit 2020; Paul 2020); it confronts the ongoing transformation of work and the workplace, notably the disintegration of the twentieth-century Fordist (mass production) corporation, its replacement by the “fissured” (subcontracted) workplace and strategic human resource management, the growth of the individualized “on demand” (gig) economy, and the attendant transformation of the employment relationship (Cherry 2020; Dau-Schmidt 2020; J. Hirsch 2020; Oranburg and Palagashvili 2020; Slater 2020; Stone 2020); it provides examples of particular inflexibilities in current labor law that impinge on the organization of workers and the creation of sustainable collective bargaining relationships (Compa 2020; Crain 2020; Garden 2020b; Getman 2020; Lofaso 2020; Oswalt 2020; D. Rosenfeld 2020; Saucedo 2020; Secunda 2020); and it offers arguments stressing the necessity of labor organization—the voluntary association of workers—to any robust conception of civil society and economic democracy (Bodie 2020; Dimick 2020, 351–60; Fernández-Villaverde 2020; Fisk 2020; Garcia 2020; Green 2020; Morris 2020; Narro 2020; B. Rogers 2020; Rosado Marzán 2020). In assembling such a large and diverse group of contributors, the Handbook can realistically claim to represent the best of what is on offer in addressing all of these crucial topics for discussion and action.…”

“…In part, the pluralist regime is the victim of critique from the left, which emphasizes the falseness of its premises, and from the right, which disdains its interference with the true private ordering that can only be achieved by zealously free markets. But as Parts 4 and 5 of the Handbook valuably instance, the model is also a victim of its own management of the actual process of pluralist private ordering to which it is committed: the extraordinary license that it grants employers and others to oppose union attempts to gain employee sanction (Garden 2020b); its substitution of a formalized conception of “association” for union rights of assembly (Crain 2020); its elaborate confinement of union capacities for economic leverage behind manifold legal restraints and administrative barriers (Lofaso 2020); the range of stalling tactics that it permits employers who have no actual interest in bargaining a contract; and the range of issues that it considers beyond the mandate of bargaining at all (D. Rosenfeld 2020). All of these “issues” are products of pluralism’s conceptualization of collective bargaining as a regime of managed conflict in which formal equals inhabit a relationship that is falsely analogized to political competition: “Unions are critically constrained in their exercise of organizational power.…”