Beyond Liberty: Toward a History and Theory of Economic Coercion

The concept of economic coercion-that a relationship or transaction can be economically exploited for the benefit of some over others-is elaborated at the intersection of economic theory and economic realities, moral and political understandings of freedom, jurisprudence and the lived application of the law to facts. As a category of criminal and civil wrong, it has been directly and indirectly adjudicated in a breathtaking array of contexts of private and public ordering. Theories of economic coercion are decisive in drawing the line between what constitutes labor market competition and forced labor, which federal programs constitutionally encourage state action and which unconstitutionally commandeer it, and whether theft of natural resources violates international criminal law. But what informs legal theories and conceptualizations of economic coercion? How are economic theories and theories of freedom written into the law through assessments of economic coercion? How is economic coercive force understood? Despite the central significance of the category of economic coercion in the judicial regulation of society, no single scholarly account provides a comprehensive assessment of the evolution and scope of the concept in law. Nor have contemporary theorists of economic rights adequately dealt with it. Attempting the first broad, theoretical overview of its kind, this Article draws from the strengths and limitations of three competing philosophical and legal accounts of economic coercion in order to elaborate a more robust conceptualization of economic coercion, but also to integrate economic coercion claims within the broader evolution and theorization of economic rights. Part I evaluates philosophical theories of coercion in public and private law to hone a minimal set of requirements for a theory of economic coercion. Part H then evaluates legal accounts of coercion-specifically, the extensive analysis of mutual coercion in the Legal Realist tradition-to supplement those requirements and elaborate a model for incorporating background conditions and distributional concerns. After outlining the strengths and deficiencies of these existing accounts, Part III turns to a third framework for conceptualizing economic coercion within the international economic rights tradition. It highlights its strengths in attending to systemic economic coercion and establishing a framework for protecting economic rights as well as its limitations in enforcing those rights through the progressive realization model. Drawing from each of these accounts, Part IV proposes that rights against economic coercion be viewed as relational and distributional rights critical to the enforcement of economic rights protections. It argues for the benefits of integrating economic coercion claims so understood within an economic rights framework, moving beyond both liberty-focused and progressive realization models of coercion towards a model of benchmarking protections from coercion in horizontal, or private law, adjudication

Structural Labor Rights

American labor law was designed to ensure equal bargaining power between workers and employers. But workers’ collective power against increasingly dominant employers has disintegrated. With union density at an abysmal 6.2 percent in the private sector—a level unequaled since the Great Depression—the vast majority of workers depend only on individual negotiations with employers to lift stagnant wages and ensure upward economic mobility. But decentralized, individual bargaining is not enough. Economists and legal scholars increasingly agree that, absent regulation to protect workers’ collective rights, labor markets naturally strengthen employers’ bargaining power over workers. Existing labor and antitrust law have failed to step in, leaving employers free to coordinate and consolidate labor-market power while constraining workers’ ability to do the same. The dissolution of workers’ collective rights has resulted in spiking income inequality: workers have suffered economy-wide wage stagnation and a declining share of the national income for decades. To resolve this crisis, some scholars have advocated for ambitious labor law reforms, like sector-wide bargaining, while others have turned to antitrust law to tackle employer power. While these proposals are vital, they overlook an existing opportunity already contained in the labor law that would avoid the political and doctrinal obstacles to such large-scale reforms. This Article argues for a “structural” approach to the labor law that revives and modernizes its equal bargaining power purpose through deploying innovative social scientific analysis. A “structural” approach is one that takes into account workers’ bargaining power relative to employers in determining the scope of substantive labor rights and in resolving disputes. Because employers’ current buyer power strengthens their ability to indefinitely hold out on worker demands in the employment bargain, the “structural” approach seeks to deploy social scientific tools to tailor the labor law’s provisions so that they resituate workers to a bargaining position from which they could equally hold out. This Article makes three key contributions. First, it documents the dispersion and misalignment of workers’ collective rights under current labor law, detailing the historical narrowing of workers’ collective rights to limited tactics by a small set of workers against highly protected individual enterprises and the concomitant rise of employer power (Part I). Second, it introduces and schematizes the wealth of social scientific literature relevant for evaluating the relative bargaining power of employers and employees (Part II). And finally, it offers concrete proposals for how to apply these social scientific tools and insights to three areas of the National Labor Relation Board’s adjudication and regulatory authority: the determination of “employer”/”employee” status, the determination of employees’ substantive rights under section 7 of the National Labor Relations Act (NLRA), and the determination of what counts as sanctionable unfair labor practices under section 8 of the NLRA (Part III)

Ownership Work and Work Ownership

Professor Lee Fennell’s groundbreaking Slices and Lumps incisively reconceptualizes how the gig—or “slicing”—economy impacts the structuring of work. But it goes even further to alert us to how “delumping the working experience” can transform the infrastructure of work, from an individual’s task design to the agglomeration costs and benefits of untying and retying workers to desks, work to benefits, worksites to surrounding communities.This Essay takes seriously her invitation to refine and adapt its insights to radically readjust work law in two ways. First, it explores how employer’s property rights over worksites are “lumpy” when they allow employer accrual of “opportunity cost” rents by:(1) exploiting “lumpy” benefits of first possession and the unilateral right to exclude to reduce output, increase prices to consumers, or restrict workers’ more innovative and productive property use, foreclosing alternative, more productive uses of worksites; and(2) foreclosing workers’ receipt of competitive wages or higher productivity contributions in alternative employment by exercising labor market power over them (Part I).Second, the Essay explores creative solutions for tackling the inefficiencies or social costs resulting from those rents. Specifically, it re-envisions labor law doctrine pertaining to workers’ lawful interference with employers’ property, which requires balancing employer’s state law property rights against employees’ and unions’ labor rights under the National Labor Relations Act (“NLRA” or “the Act”) (Part II). Inspired by Professor Fennell’s contributions, it proposes a rebalancing of both sides of the ledger: on the state property rights side, it calls for an efficiency-based “slicing” of employer’s property control (“ownership work”) (Part II.A), and on the labor rights side, redesigning a new “choice architecture” that enables a broader set of options for workers’ protected activity (like sliced, or partial, strikes) to function as countervailing power against employer rent collection (“work ownership”) (Part II.B)

Rethinking Breakups

Trust-busting is once again a subject of national attention. And the attention is well-deserved: unprecedented levels of corporate concentration, firm dominance, and inequality demand robust debate about how antitrust solutions can ensure that our economy works for everyone. One simple remedy to “bigness” has stolen the spotlight within that debate—“breaking up” big firms into smaller ones to decrease corporate power and lower prices. But calls to break up firms from Big Tech to Big Ag have focused on how breakups could benefit consumers and, in some cases, small businesses. Absent from these debates is how breakups benefit or harm the workers and labor markets affected by firm dismantling. This Article is the first to focus on how firm breakups—and antitrust enforcement and remedial design more generally—can and have significantly impacted workers’ countervailing power and earning potential. Firm structure matters for worker power. Dismantling dominant firms can result in more firms competing for workers’ services, which can lift worker wages. But it can also dismantle structures of worker power that have arisen to successfully counter dominant employers. A leading example, as this Article documents, is the devastating effect of the 1980s breakup of the Bell System on the Communications Workers of America, gutting union density within the telecommunications industry from 56 percent pre-breakup to 24 percent by 2001. Breakups, much like workplace “fissuring,” can decimate labor market institutions that advocate on workers’ behalf, but also have and can result in layoffs, increased obstacles for worker coordination, lower overall wage rates, and dramatic reductions in earned benefits, job security, and the quality of working conditions. The Article fills the gap in antitrust scholarship and policy debates that have ignored the effects of antitrust remedies on workers. It offers the first comprehensive scholarly treatment of these effects and argues that, for historical, theoretical, and empirical reasons, antitrust enforcers and scholars must attune their prescriptions and remedial mechanisms to ensure that antitrust remedies do not perpetuate the long history of antitrust law’s alternating hostility to or disregard for worker welfare. It begins by summarizing the debates around firm breakups and reveals their disregard for labor market competition and worker welfare. It then unearths case studies and social scientific analyses to assess the effects of breakups and offers a theoretical and empirical overview of when breaking up firms can benefit or harm labor market competition and workers’ countervailing power against dominant employers. It concludes by proposing alternative remedies to monopolization and corporate consolidation that better secure worker welfare

The Law of Geographic Labor Market Inequality

How the law contributes to economic inequality is the subject of renewed attention, but the legal dimensions of geographic inequality have received much less scrutiny. At its core, geographic inequality is a function of how the national income gets spatially divided between capital and labor. While labor’s share of national income has generally declined, workers in rural and distressed communities have suffered most at the expense of capital. Recent empirical research on rural and distressed labor markets reveals an important structural cause: disproportionately high levels of employer market power with weak, if any, countervailing worker power to check it. While federal labor market regulation was intended to prevent this outcome nationally, it has failed these workers and the communities they support, contributing to and reinforcing geographic inequality. The failure of our legal infrastructure erodes economic self-determination in a place-based manner. But it also generates place-specific and place-salient resentment, perceptions of democratic disempowerment, and significant political polarization between spaces of wealth generation and wealth extraction. This Article is the first comprehensive effort to tackle the legal sources of geographic labor market inequality. It documents the convergence of unique labor market failures in rural and distressed labor markets and identifies how federal labor market regulation has contributed to and exacerbated those failures to employers’ benefit and at workers’ expense. Specifically, it describes how rural and distressed labor markets have unusually high levels of labor market concentration, market thinness, and natural monopsony, worsening market frictions that exist in thicker, more competitive urban labor markets. Neither federal employment policy nor labor, employment, and antitrust rules have recognized these geographically-specific realities. Instead, while appearing to operate in a place-neutral manner, the legal infrastructure they jointly create carves out and deregulates the types of labor markets, categories of workers, and employer conduct that are most prevalent in rural and distressed environments. They are thus ill-adapted to remedy market failures unique to rural and distressed spaces to ensure workers’ access to livable wages and countervailing leverage against employers. The Article reconceptualizes labor market regulation through a place-based lens, adapting and tailoring existing regulatory tools and proposing broader, more interventionist efforts to restructure and regulate the employment bargain outside of thick urban markets. It draws from historical examples of workforce investment and successful economic governance in markets facing similar characteristics to propose solutions that can revive rural and distressed communities by increasing worker power and generating diversified and high-quality job growth

Interagency Coordination on Labor Regulation

After 9/11, Congress, federal agencies, and scholars exposed the devastating results of the national security agencies’ failure to coordinate. The financial crisis has been linked to similar coordination failures in the context of interagency banking regulation, with jurisdictional gaps and blind spots resulting in failure to prevent a global recession. But despite Gilded Age-levels of inequality, little attention has focused on the failures of interagency coordination to secure Americans’ access to economic opportunity through work—whether through securing higher wages and higher union density, coordinating government enforcement to achieve redistributive goals and combat consolidation of employer buyer power, or overcoming systemic abuses in employers’ wage theft, discrimination, and worker mistreatment. The crippling spread of the coronavirus (COVID-19) pandemic demands that now, more than ever, agencies coordinate in their regulation of labor markets to accomplish micro– and macroeconomic policy goals. This Essay is a component of a larger project that seeks to document federal agencies’ selective coordination along six core policy vectors that impact work- or income-based avenues towards equality—macroeconomic, microeconomic, institution-building, industry-specific, anti-subordination, and democratic/expressive policy. It presents the results of a novel data set collecting and systematizing existing Memoranda of Understanding (MOUs) authorized by the core agencies involved in labor market regulation: the Department of Labor (DOL), its sub agencies, the National Labor Relations Board (NLRB), the Equal Employment Opportunity Commission (EEOC), the Department of Justice-Antitrust Division, and the Federal Trade Commission. By hand-coding and analyzing the 112 discoverable MOUs from the 1950s to the present, the Essay presents a novel history of interagency coordination on labor regulation, highlighting which labor agencies coordinate most and least, what such coordination facilitates as a substantive and administrative matter, and the broad scope and areas of labor market regulation on which coordination has not yet occurred. It concludes by arguing that the federal government lacks a coherent, aligned vision on labor market regulation and economic mobility through work, and proposes next steps for improving agency coordination

The Labor Justice System

President Biden’s recent Executive Order on Promoting Competition brought much-needed attention to labor market concentration, employer collusion, and abusive employment contracts that suppress wages and diminish labor’s share of national income. But while the Order recognized the necessity of a “whole-of-government” approach to employers’ monopsony power over workers, it could go further to more fully tackle the sources of that power and mobilize the collective resources of government to combat them

Interagency Merger Review In Labor Markets

As empirical evidence of labor market concentration mounts, academics and policymakers advanced proposals to challenge or reverse its effects on workers’ wages and labor market options. Prominent among these is more aggressive review of the labor market effects of mergers by the Department of Justice (DOJ) and the Federal Trade Commission (FTC). This Essay argues for an alternative intervention: because placing exclusive jurisdiction over the labor market effects of mergers in the DOJ and FTC will be fundamentally limited for historical, doctrinal, institutional, and expertise-based reasons and as a matter of prophylactic policy, the National Labor Relations Board (“NLRB”) should have concurrent jurisdiction to review and approve mergers that the DOJ or FTC determine will substantially or moderately increase labor market concentration in a relevant labor market under a “public interest” standard. The Essay first outlines the limitations of existing proposals to regulate labor market effects exclusively through the antitrust agencies’ merger review. Second, it catalogs and evaluates the range of interagency coordination between the antitrust and regulatory agencies on merger reviews, including but not limited to the antitrust agencies’ concurrent jurisdiction with the Federal Communications Commission. This overview documents how, in a significant number of industries outside of labor markets, regulatory agencies review and condition mergers under a “public interest” standard and based on their industry-specific knowledge and expertise. That deeper background of shared interagency jurisdiction contextualizes and supports the proposed extension of concurrent jurisdiction to labor agencies in merger reviews with labor market effects. Finally, the Essay provides recommendations for how the Board’s concurrent jurisdiction could operate to integrate its expertise into the evaluation of post-merger labor market effects

Why We Need Interagency Merger Review in Labor Markets

As empirical evidence of labor-market concentration mounts, academics and policymakers advance proposals to challenge or reverse its effects on workers’ wages and labor-market options. Prominent among these is more aggressive review of the labor-market effects of mergers by the Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”). My forthcoming essay, Interagency Merger Review in Labor Markets, argues for an alternative intervention: N. Increasing evidence of labor market concentration and mergers’ suppressive effects on wages has drawn attention to labor market regulation by antitrust scholars and enforcers, creating an unprecedented reform effort to apply antitrust law to employers. Proposals have concentrated on more through DOJ and FTC merger review to reduce labor market concentration and mitigate its effects – including reduced hiring, artificially suppressed compensation, employer collusion, and increasing inequality – by ensuring robust labor market competition. While important in their own right, these proposals focus exclusively on reforming antitrust agencies’ merger review. They do not contend with the limitations of exclusive antitrust agency jurisdiction as a doctrinal, prophylactic, institutional, and expertise-based matter, and they ignore the benefits of interagency labor market regulation

Regulating in Pandemic: Evaluating Economic and Financial Policy Responses to the Coronavirus Crisis

The United States is currently trying to manage a fast-moving public health crisis due to the coronavirus outbreak (COVID-19). The economic and financial ramifications of the outbreak are serious. This Working Paper discusses these ramifications and identifies three interrelated but potentially conflicting policy priorities at stake in managing the economic and financial fallout of the COVID-19 crisis: (1) providing social insurance to individuals and families in need; (2) managing systemic economic and financial risk; and (3) encouraging critical spatial behaviors to help contain COVID-19 transmission. The confluence of these three policy considerations and the potential conflicts among them make the outbreak a significant and unique regulatory challenge for policymakers, and one for which the consequences of getting it wrong are dire. This Working Paper—which will be continually updated to reflect current developments—will analyze the major legislative and other policy initiatives that are being proposed and enacted to manage the economic and financial aspects of the COVID-19 crisis by examining these initiatives through the lens of these three policy priorities. It starts by analyzing the provisions of H.R. 6201 (the “Families First Coronavirus Responses Act”) passed by the house on March 14, 2020. By doing so, this Working Paper provides an analytical framework for evaluating these initiatives