Democracy and Domination in the Law of Workplace Cooperation: From Bureaucratic to Flexible Production

In May of 1993, President Clinton\u27s Commission for the Future of Worker-Management Relations began its investigation of whether a major overhaul of United States labor law is necessary to encourage high-performance workplaces and labor-management cooperation. Even if its recommendations, due in November 1994, do not yield immediate congressional fruit, the Commission\u27s work is likely to influence the study and politics of labor law reform for some time to come. The Commission is chaired by John Dunlop, the eminent labor-relations specialist and former Secretary of Labor. Its membership includes some of the nation\u27s foremost academic and political proponents of far-reaching labor law reform. The Commission\u27s Chief Counsel is Harvard Law School\u27s Paul Weiler, who, over the last decade, has built the most formidable edifice of comprehensive reform proposals within the legal academic community. The appointment of the Dunlop Commission registers several seismic changes in the topography of labor relations in recent decades. First, the percentage of private-sector employees in unionized workplaces has declined from nearly 37 percent in 1953 to less than 12 percent today. The resulting representation gap in workplace governance is a salient policy concern for philosophic proponents of industrial democracy and for economic supporters of those welfare-enhancing workplace arrangements that require collective action by employees. Concurrent with the fall of organized labor, the annual growth in labor productivity slowed from a median of three percent in the post-World War II boom years to little more than one percent since the late 1960s. This climacteric coincided with an intensification of global economic competition and volatility in product and capital markets. These years also saw the emergence, led by Japan, of lean production systems that seem to break with the hierarchical mass-production model at the core of United States industry. Many variants of the emergent organizations are based on principles of flexible collaboration and consultation between employees and managers within the firm and among fluid networks of firms. Their adaptability and delegation of discretion to frontline work teams give such high-performance firms and networks the potential for enhanced productivity, innovation, and employee learning. The United States\u27 regime of adversarial, bureaucratic labor relations seems to fly in the face of the high-performance principles of cooperation and trust. That regime not only imperils labor productivity and participation. Its discouragement of high-skill, high-discretion work processes, together with the fall of organized labor, has helped produce the most unequal distribution of incomes and job opportunities of any advanced industrial country

Law and Labor in the New Global Economy: Through the Lens of United States Federalism

The heightened economic globalization of the last quarter century presents a welter of new questions for legal scholars, policymakers, and practitioners. In many specialized fields, lawyers and academics are reskilling in comparative and international law in response to the growing importance of the transnational linkages and competition facing economic and regulatory actors in the United States. Concurrently, dramatic economic and political transitions in Asia, Latin America, and Eastern Europe have created legal uncertainties and innovations that compound the challenges of transnationalization. Issues of labor and employment law are at the center of both of these epochal transformations – globalization and regime-transition. The articles in this symposium reflect well the range and urgency of these issues. Economic Globalization. Two broad aspects of economic globalization are particularly relevant to labor lawyers. The first is the growing international integration of product, capital, and labor markets. Transnational flows of labor have again become a flashpoint of electoral politics in the United States and elsewhere. The controversy has spilled into the legislative arena in proposals to limit immigrant workers\u27 access to jobs and government benefits? It has also renewed perennial debates over the stringency and enforcement of domestic immigration law and minimal labor conditions, such as child labor, sweatshop, and wage and hour rules

The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation

To shed light on the legal debate over new forms of workplace collaboration, this Article reexamines the origins of the National Labor Relations Act of 1935. Professor Barenberg concludes that the Wagner Act scheme was profoundly cooperationist, not adversarial as is conventionally assumed. Revisionist historiography shows that, contrary to the claims of public choice theorists, Senator Wagner\u27s network of political entrepreneurs was the decisive force in the conception and enactment of the new labor policy, amidst interest group paralysis and popular unrest. Drawing on original archival materials and oral histories, Professor Barenberg reconstructs the progressive ideology of Wagner and his circle. That elite network understood, consonant with recent critical theories, that legal symbols could shape worker consciousness. Their goal, however, was not to pacify but rather to galvanize workers to seek the collective empowerment that alone could secure democratic consent and cooperation in both the enterprise and in the polity in the era of mass production. Wagner rejected the leading interwar model of workplace cooperation – company unionism – because he believed it could not combine high-trust cooperation with protection of workers against instrumental and symbolic domination by employers. Unlike recent legal-economic theorists who presume a world of self-interested, rational behavior, Wagner understood that workplace hierarchies generate cultural contests over trust and resentment. Wagner\u27s model is more akin to current theories that maintain that human interests and perceptions – including dispositions toward trusting cooperation – are constituted intersubjectively and self-reflexively

A New Labor for Deep Democracy: From Social Democracy to Democratic Socialism

Conventional workplace law includes the law of collective bargaining and employment contracts. This chapter argues that, to fully understand how law constructs worker power, industrial democracy, and political democracy, workplace law should greatly broaden in scope. The “new labor law” should encompass components of many fields of law that influence worker power and democracy as much as many components of conventional labor law. These additional components are lodged in domestic and international finance law, social wage law, constitutional law, communication law, tax law, and many more fields. The chapter applies the new labor law to critique and offer proposals to reconstruct existing law in the service of empowering workers in the workplace and polity, within both capitalist economies and imagined democratic socialist regimes

Three Essays on the Social Determinants of Early Childhood Health and Development

This three-paper dissertation examines the social determinants of early childhood and in-utero health. The first chapter examines the impact of early childhood stunting on educational outcome in Tanzania. Using the extent of third-trimester overlap with the Tanzania hunger season to create an exogenous variation in stunting, I find that a one standard deviation stunting decreases educational achievement by .88 school years compared to a child\u27s siblings. A placebo group not affected by the hunger season is used to confirm that in-utero nutrition deprivation is the cause of the education differences. The second paper utilizes the food price shocks and price increases to examine the impact of nutritional sufficiency on child development in four sub-Saharan countries. I find adverse effects of third-trimester and early-childhood exposure to food price increases, but get inconsistent results on infancy that requires additional research. The final paper uses an instrumental variable method to determine the impact of public health spending on infant mortality in India. The results imply that a one percent of state-level GDP increase in public health prevents seven children deaths for every 1,000 live births. Together the three papers highlight the possible role investments in early childhood health could have in increasing human capabilities and well-being

Memory and representation of World War II in contemporary British and German fiction: a comparative analysis

This thesis constitutes the first detailed attempt to compare British and German contemporary prose fiction in relation to the representation and transmission of collective memories of the Second World War. The primary aim of this comparison is to establish the existence of a transnational literary approach adopted by authors to address questions of how to remember the events that occurred during the Second World War in the absence of living memory. I will argue that prose fiction contributes to the interdisciplinary field of what could be loosely called 'memory studies' and that the similarities between British and German fictional responses to the Second World War indicate that there is a development towards a subgenre of memory fiction that transcends national boundaries

Small and as Productive : Female Headed Households and the Inverse Relationship between Land Size and Output in Kenya

Access to land and particularly its distribution has reemerged as an important part of both academic and policy discussions in the last decade, leading to the resuscitation of the debate on the relationship between size of holdings and output per land unit. Across the world, studies have suggested the existence of a decreasing relationship between land size and output per unit of land. The most-widely accepted explanation for this relationship is that households with smaller holdings tend to be labor rich relative to land, and therefore can achieve higher output through the increased application of labor. Despite the rich literature on this topic there has been little work on whether this relationship is valid for female-headed households, particularly in the case of African countries. Past African studies have found female-headed households to be smaller by close to one adult in comparison to male-headed households. Given this difference one would expect there to be a difference in the outcome of land redistribution for different types of households, ceteris paribus. Additionally, the aggregate impact in African countries could be substantial, as female-headed households comprise in several cases up to 30 percent of the rural households. In this paper we will examine empirically whether the inverse size and output relationship is different between female and male headed households in the case of Kenya, using the Kenya Integrated Household Budget and Expenditure Survey of 2006, which includes modules on agricultural holdings and agricultural output in addition to the standard demographic characteristics. By controlling for the endogeneity of crop choice and fertilizer use we are able to find that cash crop production and human capital, and not differences in household size, determines the differences in male and female headed land productivity. Hence, our study goes beyond the simple discussion of the inverse relationship between land size and output per unit and the potential impact of redistribution. Specifically we will be able to address the kind of broad rural development policies in addition to land redistribution that would allow female headed households to do at least as well as (if not better than) male headed households. JEL Categories: J16, O13, Q15Agriculture, Gender, Kenya, Africa, Crop Choice, Land Productivity

Microfinance for water and sanitation: a case study from Tiruchirappalli, India

This paper looks at the development of a water and sanitation loan fund deployed through a network of women’s selfhelp groups in Southern India. The success of the loan fund reduced barriers to credit from formal lending institutions and increased investment in water and sanitation facilities. Results from this case study indicate that microfinance principles can be successfully applied to the water and sanitation sector. The objectives of this case study are to summarize what is known about this loan program and explore the possibilities and limitations of this new financing model for the water and sanitation sector

Challenges of “Sameness”: Pitfalls and Benefits to Assumed Connections in Lawyering

Individuals are drawn to connect with other people because of shared experiences and personal characteristics. These connections often help people establish rapport, trust, and engagement. Surely these same benefits would apply in the lawyer-client relationship where a lawyer’s ability to find common links with her client would facilitate the lawyering process.Perhaps that is true, but not necessarily and not without some potential costs. As clinical teachers, we have become increasingly wary that assumptions attributable to sameness can complicate lawyering. Untested assumptions, whatever their source, can impair lawyering judgments. In our collective experience, we have found that assumptions rooted in sameness are particularly seductive and bring unique challenges to our work.Our aim therefore is to identify the assumptions that accompany sameness, to increase the likelihood that personal and experiential connections enhance the lawyer-client relationship and the lawyering process, and to minimize the possibility that they interfere. In addition, we explore how questions of sameness, or its complement, difference, arise in clinical supervision and provide suggestions to best address these questions with our students, our clients, and third parties within the justice system.Our focus is on the intersection of difference and sameness, as they are assumed or actually exist between lawyer and client, and the effect of difference and sameness together on the lawyer-client relationship and the lawyering process. In our experience, lawyers and clients build professional relationships both because of shared personal characteristics or life experiences and in spite of them. Just as other commentators have helped lawyers develop methods for bridging difference, we seek to offer tools for dealing with the consequences of assumptions rooted in sameness. It is our hope that this inquiry will assist clinic students and their supervisors to acknowledge and deal with the normal human response of making and acting on connections. Ultimately, we hope that all lawyers will interact with clients with holistic awareness of sameness and difference

Professional Ethics in Interdisciplinary Collaboratives: Zeal, Paternalism and Mandated Reporting

In this Article, the authors, two clinical law teachers and a social worker teaching in the clinic, wrestle with some persistent questions that arise in cross-professional, interdisciplinary law practice. In the past decade much writing has praised the benefits of interdisciplinary legal practice, but many sympathetic skeptics have worried about the ethical implications of lawyers working with nonlawyers, such as social workers and mental health professionals. Those worries include the difference in advocacy stances between lawyers and other helping professionals, and the mandated reporting requirements that apply to helping professionals but usually not to lawyers. This Article addresses those concerns in a direct way, using the example of social work as an exemplar for many kinds of interdisciplinary practices. Part I of the Article explores the commitments of zeal and autonomy in interdisciplinary work involving lawyers and social workers. It acknowledges that social workers and lawyers receive differing training about advocacy stances, attention to the needs of the larger society, and concern for the best interests of clients, and therefore are apt to confront client interactions with dissimilar orientations. But the authors conclude that those differences in orientation in fact offer critical opportunities, when the professionals collaborate, for more effective lawyering, rather than posing a risk to a lawyer\u27s or a social worker\u27s ethical commitments. A lawyer and social worker team are likely to offer clients a richer brand of legal representation when working together than a lawyer working without the collaboration would provide. While some pointed ethical conflicts might arise, the authors contend that those conflicts are not unlike those faced by any reflective lawyer practicing without the benefit of collaboration. Part II of the Article addresses the mandated reporter issue. When lawyers and social workers (or other helping professionals) collaborate, lawyers tend to be prohibited from reporting suspected child abuse and neglect if learned during a client\u27s representation, while social workers tend to be mandated by state law to make a report. The authors contend that when a social worker serves within a law firm or legal clinic as a consultant to the legal team, the social worker ought not be covered by the state mandated reporting laws if the lawyers are not so covered. If the social worker, by contrast, provides social work services to the law firm\u27s client, though, the state reporting laws will apply, and the collaboration must account for the resulting conflict in confidentiality duties