Benjamin I. Sachs, Labor Law Renewal, 1 Harv. L. & Pol'y Rev. 375 (2007).
Abstract: 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.