Passion and Reason in Labor Law

Abstract

The central debate within domestic labor law today revolves around whether existing union certification procedures promote or inhibit autonomous employee choice. Within that debate, both judges and commentators tend to embrace a model of the self and of the optimal conditions for autonomous choice that draws from both liberal political theory and rational choice theory. Most judges and commentators assume that individual workers’ preferences are exogenous and relatively static; that workers decide whether to support unionization by weighing its costs and benefits in light of their individual self-interest; that union organizing is basically a process of aggregating individual workers’ expressed preferences; and that workers’ autonomy is threatened not only by coercion, but also strong communal attachments to coworkers. This article criticizes that model on both empirical and normative grounds. Workers’ preferences towards unionization are not wholly exogenous, it argues, but rather are pervasively shaped by the law and by workers’ group identities. Similarly, organizing is not solely a process of aggregating preferences, so much as a process of building collective identity and solidarity - and therefore shaping workers’ preferences - often through disruptive and emotionally - charged collective action. Finally, such identity-shaping does not inevitably threaten individual workers’ autonomy. To the contrary, ideals of autonomy actually provide normative justification for such efforts insofar as they aim to equalize power between workers and management. This argument has implications both for ongoing debates over labor law reform, and for accounts of the relationship among law, identity, and social movements more generally.