Employee ‘Free’ Choice in the Mirror of Liberty, Fairness and Social Welfare

41 Pages Posted: 7 Oct 2010 Last revised: 28 Jun 2011

Date Written: October 5, 2010


The publication of Richard Epstein’s book, The Case Against the Employee Free Choice Act provides an opportunity to reconsider (A) the movement to displace the regime of judge-made law that had previously governed labor relationships, (B) the purpose of the NLRA and (C) the revolutionary implications of the effort to transform the NLRA into a law that places its thumb on the scale in favor of unionization. Describing the central provisions of the Employee Free Choice Act (EFCA), its economic consequences, its constitutional implications, and its connection to the decline of unionism, Epstein offers a balanced portrayal of the EFCA that suggests this statutory initiative diminishes human liberty and compromises the interests of most workers, employers, and the nation as a whole.

Beyond Epstein’s manifestly correct emphasis on the proposal’s unfairness to workers and employers tied to possible union coercion and his assessment of the initiative’s adverse social welfare implications, the case against the EFCA should be expanded in two ways. First, his critique could be enriched by deconstructing progressive presuppositions tied to this initiative and by focusing on the disproportionately adverse consequence of this proposal on marginalized Americans. Such consequences persist in America’s current era. Second, Epstein’s examination would be enhanced by understanding the EFCA as an attempt by highly politicized labor unions to gain additional political revenues for broad social purposes that are unrelated to both collective bargaining objectives and workers’ actual preferences.

Keywords: Assumptions, Commerce Clause, Constitution, Enumerated Powers, Franklin D. Roosevelt, Industrial Recovery, Jones & Laughlin Steel Corp., Legislation, Limited, Market Inequality, Minorities, NIRA, National Labor Relations Act, President Herbert Hoover, Reformers, Sociological Jurisprudence, Women

JEL Classification: J21, J23, K31

Suggested Citation

Hutchison, Harry G., Employee ‘Free’ Choice in the Mirror of Liberty, Fairness and Social Welfare (October 5, 2010). Catholic University Law Review, Vol. 60, No. 3, pp. 575-614, 2011; George Mason Law & Economics Research Paper No. 10-50. Available at SSRN: https://ssrn.com/abstract=1688005 or http://dx.doi.org/10.2139/ssrn.1688005

Harry G. Hutchison (Contact Author)

Regent University - School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States

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