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

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

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

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

The Withering Away of the Danger Society: The Pensions Reforms of 1956 and 1964 in the Soviet Union

While a framework of statist welfare practices was constructed in the 1930s, the principles that underwrote it—and that defined the interaction of individual citizens and state agencies—were changed as a consequence of World War II and transformed as a result of Stalin's death and the onset of de-Stalinization. Following a major sequence of welfare reforms in the Khrushchev period, most people's encounters with social risk were substantially minimized. By the Brezhnev era, problems associated with moral hazard were creating new challenges for policy makers: not only did people enjoy the right to a job, as they had done for decades, but perverse incentives discouraged innovation and, for some, hard work. A welfare system had been established that went far beyond the universalism of Western Europe. Cash transfers diffused social risks. Furthermore, welfare touched almost all areas of life, from jobs to leisure, creating a new kind of industrial society, in which many social risks had been artificially eliminated. The effectiveness of this system was highly uneven, and many miserable examples of welfare provision persisted, but this revised relationship between risk and welfare guided the mentalities of policy makers and ordinary people alike. This article offers a commentary on the long-term nature of this process but focuses particularly on the reforms associated with Khrushchev, especially the pension laws of 1956 and 1964.</jats:p

Constitutional Constraints on Redistribution through Class Power

My comments will not be so much a critique as an elaboration of the two papers, especially Professor Neuman\u27s paper on United States (U.S.) law, since I am not an expert on German constitutional law. For those less familiar with U.S. law, my goal is to bring to light some additional elements of the U.S. constitutional tradition that impede the use of law to achieve economic equality-elements of U.S. constitutional law that reinforce the weak general equality principle of the Equal Protection Clause.2 I will use U.S. labor law as my vehicle for showing the variety of constitutional principles that sustain actual economic inequality in the United States

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

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

Constitutional Constraints on Redistribution through Class Power

My comments will not be so much a critique as an elaboration of the two papers, especially Professor Neuman\u27s paper on United States (U.S.) law, since I am not an expert on German constitutional law. For those less familiar with U.S. law, my goal is to bring to light some additional elements of the U.S. constitutional tradition that impede the use of law to achieve economic equality-elements of U.S. constitutional law that reinforce the weak general equality principle of the Equal Protection Clause.2 I will use U.S. labor law as my vehicle for showing the variety of constitutional principles that sustain actual economic inequality in the United States

Formulating and Aggregating Indicators of Labor Rights Compliance

[Excerpt] In 2004, the National Academy of Sciences (NAS), in cooperation with the Bureau of International Labor Affairs (ILAB) of the United States Department of Labor (DOL), published a methodology for assessing labor rights compliance and other labor market conditions of trading partners of the United States. The methodology includes batteries of Indicators, a matrix instrument, and a database of information sources for applying the Indicators and matrix to particular countries. Social scientists at the University of Michigan pilot-tested and evaluated the NAS methodology, and submitted their findings on February 23, 2009. The Michigan evaluation revealed several areas in which the Indicators, matrix, and database might be refined. On September 10, 2009, ILAB and this author entered a contract for a research project on Refining the NAS Matrix. The subject of the research proposal is (1) to apply legal and regulatory analysis to formulate a refined body of Indicators dedicated to making determinations whether trading partners are compliant with United States trade legislation and trade agreements, and (2) to canvass alternative methodologies for weighting and aggregating the Indicators. These topics require extended conceptual analysis of various types of indicators, and of the relation between indicators and composite indices measuring compliance with each overall labor right.ILAB_Formulating_and_Aggregating_Indicators_of_Labor_Rights_Compliance.pdf: 98 downloads, before Oct. 1, 2020