Does Work Law Have a Future if the Labor Market Does Not?

Abstract

This Essay is based on the 37th Annual Kenneth M. Piper Lecture. It offers a new perspective on the much-discussed “future of work.” That discussion typically highlights changes within the labor market that undermine the employment relationship’s role as the bedrock for work regulation. But might something even deeper be afoot, namely the disintegration of “the labor market” itself? Several recent developments challenge the legal construction of employment as occurring wholly inside a distinctive, and distinctively economic, market sphere. The Essay considers Uber and the relationship between work and “sharing,” Hobby Lobby and the relationship between work and religion, the unrest in Ferguson and the relationship between work and criminal justice, and Friedrichs and the relationship between work and politics. Each presents a conservative challenge to labor and employment law by blurring the boundaries between the labor market and other spheres, not by purging the labor market of noneconomic intrusions in the manner of laissez faire. This development presents a conundrum for traditional labor and employment law, which simultaneously defines its object in market terms while aspiring to reshape it by incorporating certain nonmarket values.

Keywords: labor law, employment law, labor market, Uber, Hobby Lobby, Ferguson, Friedrichs