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Abstract:
This review tells three interlocking tales of decline, each with its respective prognosis for recovery: the declines of labor law scholarship, labor law, and organized labor. The relationship between the latter two, and the role that a reformed labor law might play in reviving organized labor, are matters of continuing controversy. In the meantime, two developments on the ground suggest a way forward for organized labor, labor law, and labor law scholars. Activist unions have found success with a new organizing model: neutrality and card-check agreements. Elsewhere, anti-sweatshop activists are developing increasingly sophisticated supplier codes and monitoring schemes to improve labor standards in developing countries. Both strategies, with their basically contractual architecture, exemplify what regulatory scholars are calling "new governance." These strategies suggest a potential way around the roadblocks that meet labor law reform proposals, and toward more agile and responsive forms of workplace governance.

labor law, collective bargaining, unions, employment

Abstract:
The burgeoning literature on democratic civil society, civic engagement, and associational life has focused largely on voluntary civic organizations in which citizens choose to associate on the basis of what they already share. Those groups serve important functions in a democratic society. But those groups, by definition voluntary and largely beyond the scope of antidiscrimination law, cannot be relied upon to bring individuals together across social cleavages of ethnicity and identity. In a diverse but still-too-divided society, that is an important mediating function, and it is one that the workplace is uniquely situated to serve. The antidiscrimination laws have had a significant impact on the workplace; for most adults, it is likely to be the most racially diverse place in which they spend much time. At work, individuals cooperate and converse day after day, and form ties of familiarity and empathy with individuals from different groups. Social science research confirms the tendency of this kind of cooperative interaction to foster more positive intergroup attitudes and relations. The workplace is thus a uniquely important locus of associational life in a diverse democratic society. This article makes the case for this proposition, links it to contemporary discussions of social capital, public discourse, and social integration, and contends with the problems of hierarchy and economic compulsion that might seem to disqualify the workplace from the domain of civil society, but that prove to be more ambiguous in their significance for the distinct mediating function of the workplace.

Abstract:
The employment relationship is governed largely by contract, but with a heavy overlay of rights: minimum terms and individual rights that are established by external law and typically non-waivable. But some terms of employment are governed neither by ordinary contract nor by ordinary rights, nor even by ordinary waivable rights. Consider the two most controversial instruments in employment law today: non-compete covenants (NCCs) and mandatory arbitration agreements (MAAs). Both take the form of written contracts that waive important employee rights (the right to compete post-employment, the right to litigate future claims); both are subject to substantive criteria of validity that are set by external law. Both bodies of law may be usefully described as recognizing conditionally waivable rights.

This paper aims first to show structural parallels between NCCs and MAAs that place them at a distinct intermediate point along the spectrum between non-waivable rights and ordinary contract that I call conditional waivability. Second, it seeks to uncover a common logic underlying the law's choice of this particular hybrid of rights and contract. The linchpin of that common logic lies in the threat that unregulated waiver of one right (the right to compete or to litigate future claims) poses to an adjacent employee right that the law deems non-waivable. Third, the paper deploys that underlying logic to offer a critical assessment of the law governing NCCs and MAAs. Finally, the paper tentatively explores the broader potential usefulness of conditional waivability as a way of regulating some terms of employment. The intriguing potential of conditional waivability lies in its injection of some of the virtues of contract - especially flexibility and variability in the face of widely divergent and changing circumstances - into the pursuit of public goals and the realization of rights in the workplace.

employment, contract, covenant-not-to-compete, arbitration

Abstract:
In many areas of regulation, mandating disclosure of information about a firm’s products, services, production processes, or governance is said to improve the efficiency and rationality of market decisions, avoid fraud, and advance public regulatory goals, all without intruding significantly upon the autonomy of market actors. Yet the idea of regulating through information disclosure has made barely a cameo appearance in the field of labor and employment law. This article begins to fill that void. Mandatory information disclosure can play a role both within the ambit of existing substantive employment mandates and among the many terms and conditions that are above or beyond the reach of substantive mandates. Within the large domain of private ordering, mandatory disclosure might improve the operation of labor markets and the satisfaction of employee preferences by better informing employees’ choices among and bargains with employers. Among those terms that are covered by mandatory legal rights or minimum terms, mandatory disclosure may help improve compliance. And where neither mandates nor markets meet public aspirations for more socially responsive, fair, and egalitarian workplaces, mandatory disclosure may help to drive firms to reach beyond compliance.

The case for workplace disclosure is not a simple transposition of the case for disclosure in capital markets or product markets, of course. Importantly, employees – unlike consumers, shareholders, or members of the public who are affected by a firm’s products, services, processes, and decisions – are in many respects insiders to the firm. They have access to information that may make mandatory disclosure seem unnecessary; and they have duties of loyalty and confidentiality that may make public disclosure seem inappropriate. But in choosing whether to take or quit a job, employees are more akin to investors (of their own human capital) or consumers (of a package of “goods” associated with a job) with a recognizable stake in job-related information that may be hidden from them. At the same time, employees are also members of the society and a majority of the voting citizenry. Their terms and conditions of employment, in the aggregate and in the staggering disparities of wealth and opportunities that they create, shape the society and give the public its own large stake in learning about what goes on at work.

Abstract:
American society suffers both from fraying communal ties and from the stubborn persistence of division and segregation, especially along racial lines. We enjoy less trust, cooperation, sociability, and sense of community; yet whatever sense of community we do experience is still racially-skewed and divided. What happens within the workplace responds to both concerns: The typical workplace is a hotbed of sociability and cooperation among co-workers day after day, and often year after year. And that interaction is increasingly likely to cross categories of race and ethnicity, as well as gender. The striking convergence of close interaction and growing demographic diversity makes workplace ties crucial in a diverse democratic society.

The democratic potentialities of human interaction at work are clouded by the unfree, unequal, and undemocratic nature of workplaces. Workplace interactions are compelled and constrained by economic power and necessity, and are circumscribed by a staggering array of governmental regulations. Paradoxically, however, the very involuntariness of workplace interactions - both external law and internal constraints - help make the often-troubled and often-failed project of racial integration work relatively well there. People can be forced to get along - not without friction, but with surprising success.

This book explores the paradoxical nature and the paramount importance of workplace bonds in a diverse democratic society. It stakes a claim for the civic value of the millions of conversations that take place every day among co-workers. It argues that the law has played a crucial part, and could play a more effective part in the future, in realizing the good that can come of working together. It may be where we are forced to get along and get things done together, and not where we choose to do so, that we have the best chance of meeting some of the most profound challenges facing American society.

workplace, civil society, labor, race, diversity, social capital

Abstract:
This article argues that the ineffectuality of American labor law and the shrinking scope of collective representation and collective bargaining are partly traceable to the law's "ossification" - to its having been essentially sealed off both from democratic revision and renewal and from local experimentation and innovation to a remarkably complete extent and for a remarkably long time. The elements of this process of ossification are various and familiar; yet, once assembled, they make up an impressive set of barriers to innovation. Most obviously, the National Labor Relations Act has been virtually unamendable for over forty years due to an exceptionally durable congressional deadlock. But the labor law scheme has also been effectively cut off from "market"-driven competition by employers; from the entrepreneurial energies of individual plaintiffs and the plaintiff's bar, and the creativity they can sometimes coax from the courts; from variation and experimentation at the state or local level by representative or judicial bodies; from the winds of changing constitutional doctrine; and from emerging transnational legal norms. Finally, the National Labor Relations Board - the designated institutional vehicle for adjusting the labor laws to modern conditions - is increasingly hemmed in by the age of the text and the large body of judicial interpretations that has grown up over the years. While the argument may seem to counsel only pessimism about the prospects for reform, it may also help to identify potential pathways of change that have not been fully appreciated. Indeed, some of those pathways are being paved by the process of ossification itself. By impelling private parties to find their own paths outside of the existing regime, the ossification of labor law may be setting in motion the very forces that may eventually lead toward legal change.