Union Made: Labor's Litigation for Social Change

64 Pages Posted: 26 Jun 2013 Last revised: 10 Dec 2013

Date Written: June 25, 2013

Abstract

Unions are key repeat players before the Supreme Court. Their involvement extends beyond what one might expect (labor) and extends to key cases involving federalism, discrimination, affirmative action, the First Amendment, and workplace health and safety, among others. Though scholars have written about how other union activity, like collective bargaining, impacts non-union workers, the role and impact of union participation in non-labor litigation has largely been ignored in the public debate over unions in America and in the academic literature about what unions do. This Article focuses on unions’ Supreme Court litigation that arises outside of the context of traditional labor law; in order to show how union-made law affects interests beyond those of the labor movement, its members, and unionized employers. It reveals how union-made law has had significant effects on the structure of American government and society.

This Article first describes the many areas in which union Supreme Court litigation has had important social effects extending far beyond core labor interests, and explains why, as a practical matter, unions are well situated to bring or fund these cases. Next, the Article explores three characteristics that have the potential to shape unions’ litigation positions: First, unions are more likely than other social movement litigators to litigate defensively, as well as offensively; second, unions operate based on majority rule; and third, unions may use litigation to support bargaining positions. The Article shows how these dynamics have played out in past cases, sometimes with surprising results. Finally, the article concludes with some observations regarding declining union density in this country.

Keywords: labor, unions, Supreme Court, First Amendment, social movements, federalism, litigation, law and organizing

Suggested Citation

Garden, Charlotte, Union Made: Labor's Litigation for Social Change (June 25, 2013). Tulane Law Review, Vol. 88, 2013, Forthcoming, Seattle University School of Law Research Paper No. 13-22, Available at SSRN: https://ssrn.com/abstract=2285192

Charlotte Garden (Contact Author)

Seattle University School of Law ( email )

901 12th Avenue, Sullivan Hall
P.O. Box 222000
Seattle, WA 98122-1090
United States

Do you have negative results from your research you’d like to share?

Paper statistics

Downloads
199
Abstract Views
1,328
Rank
272,027
PlumX Metrics