Faculty Bibliography

Seventy years after Congress passed the National Labor Relations Act (NLRA), the scholarly consensus is that American labor law has become ossified. As I have argued elsewhere, however, while the NLRA is undoubtedly dysfunctional, the blockage of this traditional channel for collective action has led not to ossification, but to a hydraulic effect: unable to find an outlet through the NLRA, the continuing demand for collective action has forced open alternative legal channels. This article explores the first of these new channels, which I name employment law as labor law. The article presents detailed accounts of collective campaigns in which workers turn to employment law, in particular the Fair Labor Standards Act and Title VII, as the legal architecture that facilitates and protects their collective activity. This legal architecture, provided here by employment statutes, is one we conventionally call labor law. Drawing upon and moving beyond these descriptive accounts, the article offers a theoretical model that explains how employment law's individual rights regime can galvanize, insulate, and generate workers' collective action. By revealing employment law's capacity to foster collective action, moreover, the article provides a new way of understanding the relationship between labor law and employment law. The model developed here disputes the claim that labor and employment law constitute distinct - and inimical - regulatory regimes. Finally, the article contends that employment law's ability to foster collective action invites future inquiry into the possibility for a great trade in labor law reform: a new regime that provides strong safeguards for the early stages of collective action but retreats from the cradle-to-grave regulation that has defined, and ultimately undermined, the NLRA.

This essay challenges the conventional wisdom that American labor law has reached a dead end. I argue that the dysfunctionality of the National Labor Relations Act has led not to "ossification" - as many believe - but to a hydraulic effect: unable to find an outlet through the NLRA, the continuing demand for collective action has forced open alternative legal channels. The essay outlines three examples to illustrate these emerging trends. The first involves the ability of several thousand janitors in Houston to secure wage increases and health benefits through a unionization campaign governed entirely by private agreement. The second concerns several hundred thousand home care and child care workers who unionized under a regime of state and local labor law. And the third is the story of an immigrant garment worker who relied on a quintessential employment law statute to lead a collective effort for overtime wages at her Brooklyn factory. These accounts illustrate labor law's new dynamism. They also reveal that American labor law is no longer a regime defined by a single federal statute administered by a single federal agency. Rather, the field is increasingly constituted by private processes, state and local regulation, and multiple federal statutes - most notably employment laws like Title VII and the Fair Labor Standards Act - enforced by multiple actors. The essay proposes that we treat each of these decentralizing trends as a productive form of experimentation. Self-consciously embracing this experimental potential will provide new insight into a series of practical questions central to labor law reform. These experimental developments also will help us resolve structural and conceptual quandaries at the core of the field: the appropriate function of private agreement in labor law; the role that states and localities should play in the design of labor policy; and the relationship between individual rights and collective action.