Labor Law Reform Again? Reframing Labor Law as a Regulatory Project

Abstract

This essay argues that reframing the project of labor law reform as a regulatory project might put the project on a firmer foundation and shake up existing conceptions of what labor law reform should look like. In other words, “labor law” should be seen as part of the larger societal project of regulating work and working conditions; and that larger project should be situated among other fields of regulation, alongside the regulation of consumer products, the environment, and financial integrity. Reframing labor law as a regulatory project brings into view an alternative set of analytical levers and tools of governance, and additional reservoirs of political support for the ultimate ends pursued by labor law.

Reframing labor law as a regulatory project can also recast and refurbish old linkages between labor law and democracy. Good regulatory design aims to deepen and extend democracy -- to effectuate societal decisions about the governance of powerful private organizations, in part by extending democracy beyond the polling booth and giving citizens more levers of power both within those private organizations and in public regulatory processes. Moreover, opening additional avenues of participation within non-governmental institutions can rejuvenate public participation in political processes. Labor law was in a pioneer in that democratization project. Proponents of the NLRA in the New Deal argued that extending democracy to the workplace would provide both a mechanism to improve and enforce labor standards and a training ground for citizens in political participation. But labor law has since fallen on hard times. Now labor law and labor law scholars may have to expand their field of vision to reach across fields of regulation, and to recognize that they have much to learn and much to teach about how to make the law effective and how to empower citizens vis-à-vis the powerful organizations that shape their lives.