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NLRA Stagnation Revives Labor Movement

The conventional wisdom is that labor law has reached a dead end and that organized labor is withering. But in what reads like an essay in Hegelian dialectics, Yale labor law professor Benjamin I. Sachs argues that the stagnation of federal labor law and the dysfunction of the National Labor Relations Board is giving rise to a reinvention of labor law and a new dynamism within the labor movement.  His article outlining this argument, "Labor Law Renewal," appears in the current issue of the Harvard Law and Policy Review. In it, he provides three examples of this "new dynamism" and asserts:

"[L]abor law is being reinvented through a process that I call the 'hydraulic demand for collective action.' That is, the NLRA’s failings have left the traditional legal channel for collective action blocked, but this blockage has not dissipated the demand for organization. Unable to find expression through the NLRA, the pressure from this continuing demand for collective action has forced its way out through three new legal channels. No longer a regime defined by a single federal statute administered by a single federal agency, American labor law is increasingly constituted by private processes, by state and local regulation, and by multiple federal statutes enforced by multiple actors."

Commenting on Sachs' article at the American Constitution Society Blog, David Tannenbaum, law clerk for 9th U.S. Circuit Court of Appeals Judge Stephen Reinhardt, says the strategies Sachs identifies "may bedevil liberals and conservatives alike." He explains:

"Liberals may find themselves balking at the idea of devolving labor law-making to the local level, remembering that unions sought a centralized regime because the states once provided so little protection. ... Conservatives will continue to question the economic wisdom of unionization, but it will be harder for them to do so when more of the rules are set by private negotiations."

As for Sachs, he asserts that collective action is alive and well within the workforce and should form the core of labor law reform: "Workers' collective action, in its highly variable incarnations, is labor law's central project and one that merits the work of reinvention proposed herein."

Posted by Robert J. Ambrogi on August 21, 2007 at 03:33 PM | Permalink | Comments (0)


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