Passion and Reason in Labor Law

62 Pages Posted: 31 Jan 2012 Last revised: 21 Apr 2012

See all articles by Brishen Rogers

Brishen Rogers

Georgetown University Law Center; Roosevelt Institute

Date Written: January 30, 2012


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.

Suggested Citation

Rogers, Brishen, Passion and Reason in Labor Law (January 30, 2012). Harvard Civil Rights-Civil Liberties Law Review (CR-CL), Vol. 47, 2012, Temple University Legal Studies Research Paper No. 2012-12, Available at SSRN:

Brishen Rogers (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Ave
Washington, DC 20001
United States

Roosevelt Institute ( email )

570 Lexington Ave.
5th Floor
New York, NY 10022
United States

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