Consent, Coercion, and Employment Law

54 Pages Posted: 6 Aug 2019 Last revised: 4 Mar 2020

Date Written: August 2, 2019


The Roberts Court has recently handed several high-profile wins in labor and employment law cases to anti-labor and pro-employer forces. This paper argues that those decisions replicate crucial moves made by some infamous Lochner-era cases — and that those same moves continue to underlie key elements of labor and employment doctrine more generally. In particular, these decisions rest on a contestable understanding of free worker choice.

This paper begins by examining the key recent Roberts Court decisions and demonstrates that they appear to invoke at least two distinct and conflicting understandings of employee and employer choice. It then turns to the critique of free choice developed by Legal Realist figures during the first half of the Twentieth Century. The Realists deployed their critique to challenge many then-existing areas of doctrine, notably including the Lochner-era freedom-of-contract cases. This paper demonstrates that the recent Roberts Court decisions implicate that critique just as the Lochner-era cases did. Just as in the Lochner era, the Roberts Court has persistently undervalued the importance of regulation and collective organization in rectifying imbalances in bargaining power and guaranteeing workers meaningful freedom of choice. The paper then explores the implications of the Realist analysis for several fundamental questions of labor and employment law doctrine. The paper argues that the doctrine in this area has never really shed the premises of Lochner.

Keywords: labor law, employment law, supreme court, employment-at-will

Suggested Citation

Bagenstos, Samuel R., Consent, Coercion, and Employment Law (August 2, 2019). Available at SSRN: or

Samuel R. Bagenstos (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States


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