Organizing the State: The ‘New Labor Law’ Seen from the Bottom-Up

62 Pages Posted: 30 Nov 2017 Last revised: 13 May 2018

Michael M Oswalt

Northern Illinois College of Law

César F. Rosado Marzán

Illinois Institute of Technology, Chicago - Kent College of Law

Date Written: November 27, 2017

Abstract

U.S. labor and employment law is broken. Evidence of the decay can be gleaned from the steep decline in unions and collective bargaining, inadequate employment protections, ineffective enforcement of many employment laws, and correlative increases in income inequality and unstable work. Recent scholarship has argued that out of the ashes a “new labor law” potentially rises, where labor, management, and state representatives co–negotiate new rights and enforcement procedures for workers, an arrangement known as “tripartism.”

Is this wishful thinking? To find out, we report on original data collected through an ethnographic study of inter–state (side–to–side) and state–society (up–and–down) collaboration in Chicago. We identify pervasive and important collaborative partnerships in both arenas, including practices that may indeed undergird a budding tripartism in the United States. Much of the work, however, heavily relies on the initiative and volition of unique actors we call “nodal agents” — not the law. Moreover, some of the state–based nodal agents central to side–to–side and up–and–down collaboration derive their authority from inherently unstable political appointments. To the extent the “new labor law” exists in Chicago, and likely elsewhere, it is a “relational labor law” that, because it relies on informal interpersonal dynamics, is inherently precarious.

While our contribution is descriptive and explanatory, the findings strongly point to a need for more law, including civil service protections and nudges or even mandates for side–to–side and up–and–down collaboration. New enforcement agencies should also be structured as nodal agencies, i.e., institutions with legal mandates to collaborate up-and-down and side-to-side. Given the relative absence of employers from most of the collaborative activities we report — as well as from our study itself — further research should focus on the nature of management attitudes toward tripartite arrangements and the best ways to incentivize or compel their participation in the future.

Keywords: Labor and Employment Law, Administrative Law, New Labor Law, Relational Labor Law, Tripartism

Suggested Citation

Oswalt, Michael M and Rosado Marzán, César F., Organizing the State: The ‘New Labor Law’ Seen from the Bottom-Up (November 27, 2017). Berkeley Journal of Employment and Labor Law, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3078193 or http://dx.doi.org/10.2139/ssrn.3078193

Michael M Oswalt

Northern Illinois College of Law ( email )

Swen Parson Hall
DeKalb, IL 60115
United States

César F. Rosado Marzán (Contact Author)

Illinois Institute of Technology, Chicago - Kent College of Law ( email )

565 W. Adams St.
Chicago, IL 60661-3691
United States

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