52 Pages Posted: 7 Mar 2011 Last revised: 14 Feb 2012
Date Written: February 13, 2012
When laws cease to operate as intended, legislators and scholars tend to propose new laws to replace or amend them. This Article posits an alternative: offering regulated parties the opportunity to contractually bind themselves to behave ethically. The perfect test case for this proposal is labor law, because (1) labor law has not been amended for decades, (2) proposals to amend it have failed for political reasons and are focused on union election win rates and less on the election process itself, (3) it is an area of law already statutorily regulating parties’ reciprocal contractual obligations, and (4) moral means of self-regulation derived from contract are more likely to be effective when parties have ongoing relationships like those between management and labor organizations. The Article explains how the current law and proposed amendments fail because they focus on fairness as a function of union win rates, and then outlines a plan to leverage strong moral contractual obligations and related norms of behavior to create as fair a process as possible for employees to vote unions up or down.
Keywords: reform, labor, employment, contract, union, management, labor relations, arbitration, employee, employer, free choice act, card check, neutrality, ethics, morals, moral, contractual, dispute, resolution, collective, bargaining, negotiation, ADR, EFCA, NLRA, NLRB
JEL Classification: K10, K12, K30, K31
Suggested Citation: Suggested Citation
Eigen, Zev J. and Sherwyn, David, A Moral/Contractual Approach to Labor Law Reform (February 13, 2012). Hastings Law Journal, Forthcoming; Northwestern Public Law Research Paper No. 11-32; Northwestern Law & Econ Research Paper No. 11-03. Available at SSRN: https://ssrn.com/abstract=1832283