Constructing a Litigation Strategy to Take Back the Workers' Law

21 Pages Posted: 14 Dec 2008 Last revised: 8 Apr 2010

Date Written: December 12, 2008


When Congress debated the NLRA in 1935, it was acutely aware of the problem of judicial amendments of workplace laws, because it had just been through decades of re-legislating employee rights that judges had repeatedly destroyed under the guise of interpretation. Despite its concerns, experience has shown that Congress was unable to draft the NLRA in a way that would allow it to withstand the process of judicial amendment.

Even more recent experience shows that this process of judicial amendment continues to undermine workplace laws. Amendment by judicial interpretation gutted the Americans with Disabilities Act and overrode the clear intent of Congress, leading to the recent passage of the Americans with Disabilities Restoration Act. In 1991, Title VII was amended to reverse Supreme Court decisions that eviscerated our most important anti-discrimination law.

While amendments to restore a law to its original purpose are sometimes possible, they come at a high cost. The ADA was successfully amended only because of the personal stake and strong support of Representative F. James Sensenbrenner (R-WI), one of the ADA's original authors. Unions have spent years lobbying for the enactment of the Employee Free Choice Act, legislation that is necessitated because of judicial amendments. EFCA and the the ADA Restoration Act demonstrate that such amendments require costly lobbying and powerful supporters. Most judicially amended laws do not have sufficiently powerful partisans and thus linger in their weakened state. Thus, the enervated Family and Medical Leave Act (FMLA) and the Occupational Safety and Health Act (OSHA) fail to achieve their purposes but have no partisans with the power and commitment to amend them to restore them to their original purpose.

Far better than pursuing this cycle of legislation, judicial rewriting of legislation, and potential restoration by re-legislation would be to stop the process of judicial amendments and to use litigation to reverse those that now exist. The NAACP legal Defense Fund litigation strategy provides evidence that such a process can be successful and furnished the general outlines for how such a strategy can be constructed. Among the lessons are that change cannot come from one person's advocating the need for such a strategy or identifying problems with the way judges decide NLRB cases. Real change requires a group of knowledgeable, thoughtful, and creative people to formulate the outlines of that strategy and adapt it to meet changed circumstances. To be most effective, such a strategy would be initiated by the NLRB General Counsel; however, Taking Back the Workers' Law - How to Fight the Assault on Labor Rights (2006 Cornell) provides guidance to litigants in pursuing that strategy on their own.

This article briefly reviews ideas relevant to the construction of a litigation strategy before identifying examples of NLRA issues that should among those first addressed. Finally, the article then discusses ways to build on those ideas in order to strengthen and enforce the rights set out in the NLRA.

Suggested Citation

Dannin, Ellen, Constructing a Litigation Strategy to Take Back the Workers' Law (December 12, 2008). Penn State Legal Studies Research Paper No. 04-2009, Available at SSRN: or

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