Productive Unionism

Do labor unions have a future? This Article considers the role and importance of labor union structures, in particular the degree of centralization in collective bargaining, to the future of labor unions. Centralization refers primarily to the level at which collective bargaining takes place: whether at the plant, firm, industry, or national level. The Article examines the historical origins of different structures of bargaining in the United States and Europe, the important implications that centralization has for economic productivity, and the ways that various labor law rules reinforce or reflect different bargaining structures. Most critically, the Article contends that greater centralization of collective bargaining entails a broader, more universal representation of worker interests, has a stronger impact on unions\u27 ability to lower income inequality, and, through its positive effects on economic productivity, reduces employer opposition to unionization in the long run. Although centralized bargaining is a medium- to long-term goal, the Article proposes ways that unions can change their own organizational structures, bargaining objectives, and organizing tactics to position themselves for future changes in bargaining structure and to avoid the pitfalls of the decentralized bargaining structures of the past

Revitalizing Union Democracy: Labor Law, Bureaucracy, and Workplace Association

Do core doctrines of labor-relations law obstruct the internal democratic governance of labor unions in the United States? Union democracy is likely an essential precondition for the broader strategic and organizational changes unions must undertake in order to recruit new union members — the labor movement’s cardinal priority. Yet according to widely accepted wisdom, the weakness of democracy within labor unions is the unavoidable outcome of an “iron law of oligarchy” that operates in all such membership-based organizations. This Article challenges this conventional thinking and argues that the triumph of oligarchy over democracy in US labor unions is not inevitable, but conditioned on the nature of American labor law. The main message is that labor law will directly or indirectly undermine what I call “workplace association,” a decisive strategic component in the florescence of union democracy, when, as in the US, it (1) provides for exclusive representation, (2) establishes institutions and procedures for collective bargaining, and (3) inhibits the use of economic “self help” as alternatives to such procedures. To reach this conclusion, the Article develops a game-theoretic model of union democratization, formalized in the Appendix, that highlights the role of union bureaucracy and workplace association in the success or failure of union democracy. The Article then uses the model to analyze the impact of US labor law on this game of union democracy, and makes comparison to Great Britain, where labor law has contrasted dramatically, with equally divergent results for union democracy

Productive Unionism

Do labor unions have a future? This Article considers the role and importance of labor union structures, in particular the degree of centralization in collective bargaining, to the future of labor unions. Centralization refers primarily to the level at which collective bargaining takes place: whether at the plant, firm, industry, or national level. The Article examines the historical origins of different structures of bargaining in the United States and Europe, the important implications that centralization has for economic productivity, and the ways that various labor law rules reinforce or reflect different bargaining structures. Most critically, the Article contends that greater centralization of collective bargaining entails a broader, more universal representation of worker interests, has a stronger impact on unions\u27 ability to lower income inequality, and, through its positive effects on economic productivity, reduces employer opposition to unionization in the long run. Although centralized bargaining is a medium- to long-term goal, the Article proposes ways that unions can change their own organizational structures, bargaining objectives, and organizing tactics to position themselves for future changes in bargaining structure and to avoid the pitfalls of the decentralized bargaining structures of the past

Lords and Order: Credible Rulers and State Failure

Why do states fail? Why do failed states persist without collapsing into complete anarchy? This paper argues that given insurgency or weakened state capacity, rulers may find it best, paradoxically, to reduce the amount of political good it provides as a means of sustaining some amount of their rule. Moreover, although the consequence is political fragmentation and increasing levels of violence, this is not inconsistent with the continuation of attenuated central governance. To evaluate this argument, I select the case of King Stephen’s reign in medieval England. Although far removed historically from contemporary cases of state failure, the reign of King Stephen exhibits just those characteristics of modern, failed states: insurgency, civil war, territorial fragmentation, increasing disorder and violence (even between adherents to the same side of the civil conflict), and yet the persistence of some amount of centralized rule

Labor Law, New Governance, and the Ghent System

The Employee Free Choice Act (EFCA) was the most significant legislation proposed for reforming the National Labor Relations Act (NLRA) in over a generation and the centerpiece of the American labor movement’s revitalization strategy. Yet EFCA hews closely to the particular regulatory model established by the NLRA at the peak of the New Deal, now over seventy-five years ago. Further, recent scholarship suggests that traditional regulatory approaches are giving way to new kinds of governance methods for addressing social problems. Rather than reviving an old regulatory model, should “New Governance” approaches instead be sought for addressing problems in employment representation? Through a comparative legal and institutional analysis, this Article offers a novel study of an alternative governance approach in labor-and-employment law by exploring the Ghent system. The Ghent system is a voluntary system of unemployment insurance in which labor unions administer publicly-subsidized insurance funds and, along with employers and the state, participate in unemployment-insurance policymaking. The Ghent system helps overcome three separate problems in collective employment relations that labor law in the U.S. attempts to resolve, in evidently ineffective ways, and that EFCA would seek to reform. First, the Ghent system encourages employers to recognize and bargain with unions by providing workers with incentives to join labor unions prior to and independent of the employer’s recognition of the union. Second, voluntary, union-administered unemployment insurance also provides an alternative “selective incentive” that reduces free-riding on collective union goods. Finally, union and employer collaboration in unemployment-insurance policy generates efficiency gains that underwrite cooperative labor relations and reduce employer resistance and workplace adversarialism. In exchange for generous unemployment benefits, unions cede on employment-protection rules, giving employers more flexibility in the workplace - a bargain referred to as “flexicurity.” The Article concludes by drawing policy lessons from the Ghent-system analysis. A “progressive-federalist” strategy of unemployment-insurance reform at the state level may be more possible than federal labor-law reform because of the broad deference states enjoy under the federal Social Security Act. But non-legislative lessons can also be applied, as several contemporary and domestic U.S. examples illustrate

Labor Law, New Governance, and the Ghent System

The Employee Free Choice Act (EFCA) was the most significant legislation proposed for reforming the National Labor Relations Act (NLRA) in over a generation and the centerpiece of the American labor movement’s revitalization strategy. Yet EFCA hews closely to the particular regulatory model established by the NLRA at the peak of the New Deal, now over seventy-five years ago. Further, recent scholarship suggests that traditional regulatory approaches are giving way to new kinds of governance methods for addressing social problems. Rather than reviving an old regulatory model, should “New Governance” approaches instead be sought for addressing problems in employment representation? Through a comparative legal and institutional analysis, this Article offers a novel study of an alternative governance approach in labor-and-employment law by exploring the Ghent system. The Ghent system is a voluntary system of unemployment insurance in which labor unions administer publicly-subsidized insurance funds and, along with employers and the state, participate in unemployment-insurance policymaking. The Ghent system helps overcome three separate problems in collective employment relations that labor law in the U.S. attempts to resolve, in evidently ineffective ways, and that EFCA would seek to reform. First, the Ghent system encourages employers to recognize and bargain with unions by providing workers with incentives to join labor unions prior to and independent of the employer’s recognition of the union. Second, voluntary, union-administered unemployment insurance also provides an alternative “selective incentive” that reduces free-riding on collective union goods. Finally, union and employer collaboration in unemployment-insurance policy generates efficiency gains that underwrite cooperative labor relations and reduce employer resistance and workplace adversarialism. In exchange for generous unemployment benefits, unions cede on employment-protection rules, giving employers more flexibility in the workplace - a bargain referred to as “flexicurity.” The Article concludes by drawing policy lessons from the Ghent-system analysis. A “progressive-federalist” strategy of unemployment-insurance reform at the state level may be more possible than federal labor-law reform because of the broad deference states enjoy under the federal Social Security Act. But non-legislative lessons can also be applied, as several contemporary and domestic U.S. examples illustrate

Matthew Dimick, Using Legal Rules to Reduce Income Inequality

The United States has experienced a disturbing expansion of income and wealth inequality in the past three or four decades. We only fully recognized this yawning divide in the material fortunes of Americans after the 2008 financial crisis, which did little to change the direction of the trend. The Coronavirus pandemic has only added fuel to the inequality fire in a particularly grave way. Income inequality might be condemned on its own terms and for its political (erosion of democracy) and economic (financial instability) consequences. These worrisome trends in economic inequality have caused scholars to look for policy solutions. For legal scholars, in particular, the question arises: can legal rules do anything about income inequality? A long-standing position within law-and-economics scholarship gives a clear answer to this question: No