Race, Solidarity, and Commerce: Work Law as Privatized Public Law

78 Pages Posted: 25 May 2023 Last revised: 27 Mar 2024

Date Written: December 1, 2022

Abstract

Theorizing work and its regulation has held enduring appeal for legal theorists. Yet intellectual movements that wish to theorize worker coercion within a broader critique of law often sidestep race. Since Lochner, landmark opinions involving race, labor, or both, have served as showpieces for the legal liberal tenets underpinning work law’s doctrines and institutions. Each iteration of the public/private divide instantiates an ideological—but avowedly race-neutral—structure for how we study, teach, and propose to reshape work law. Scholars, judges, and lawmakers typically cede this ground, perhaps because law itself is under right-wing attack.

This Article asks: What if work law allowed us to understand racism as central to legal liberal frames, rather than ancillary or topical? Deploying history and political theory, I demonstrate how public/private dyads within work law have generated unworkable and often divisive understandings of race, solidarity, and commerce. The Article then theorizes the links between work law’s capture by public/private divides and the harms they pose to our centuries-long pursuit of a thriving, multiracial democracy. Reexamining the development of labor and employment law in this light recovers a crucial point of synergy between Critical Race Theory and law and political economy (LPE) analysis.

Building on these insights, I describe work law’s current state as privatized public law. The term historicizes and, for the sake of argument, facilitates closer study of the link between legal liberal conceptions of commerce and the law’s maintenance of racial subordination. Conversely, it allows us to recognize the small- and large-scale frame transformations ordinary people have achieved through mass social movements, with the goal of strengthening all labor movements from within.

Centering race in a reassessment of work law opens up possibilities for unifying the field’s development, charts alternatives to liberal tenets within political economic thought, and provides a starting point for unraveling similarly contested fields of law. We may then “see” how the countertheories that popular movements pose against legal liberalism not only bear epistemic, doctrinal, and political importance, but also foreground the law’s normative distribution of power between public and private, racially solidaristic or radically individualistic. Work law’s tension with popular movements on matters of race, solidarity, and commerce therefore suggests how we may break the theoretical impasse over how to build more just economic and political systems over time.

Keywords: civil rights, work law, Critical Race Theory, Law and Political Economy, legal theory, constitutional law, labor law, employment law, equality

JEL Classification: H1, H04, J01, J08

Suggested Citation

Lin, Shirley, Race, Solidarity, and Commerce: Work Law as Privatized Public Law (December 1, 2022). 55 Ariz. St. L.J. 813 (2023)., Available at SSRN: https://ssrn.com/abstract=4456947

Shirley Lin (Contact Author)

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

HOME PAGE: http://www.brooklaw.edu/Contact-Us/Lin-Shirley

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