Law Commons^™

Somethings Old, Somethings New And A Lot That’S Blue: Political Economic Reflections On Worker Subordination And The Law In Contemporary Capitalism, Eric Tucker

All Papers

Debates over worker subordination are central to discussions of the efficacy of protective labour and employment law whose central mission in a capitalist political economy, after all, is to reduce but not eliminate subordination. When protective labour and employment law seems to be fulfilling its mission discussions of worker subordination seem to ebb, but the topic becomes more urgent as the efficacy of the law declines. Not surprisingly, as labour law’s efficacy has been declining over the past several decades, we are in the midst of a revival of debates over worker subordination, the premise of this special issue. While …

Constitutional Clash: Labor, Capital, And Democracy, Kate Andrias

Faculty Scholarship

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts — “labor’s” efforts for short — seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would …

Regulating Health And Safety In Capitalist Workplaces: History, Practices And Prospects, Eric Tucker

All Papers

The chapter provides a broad overview of occupational health and safety (OHS) regulation in advanced capitalist countries with a focus on the English-speaking world. It views OHS regulation through a political economy lens in which protective legislation is enacted and implemented against the imperative of a profit-driven system of production. The chapter provide examines the historical development of OHS regulation beginning with the rise of industrial capitalism leading up to modern OHS regimes that increasing embrace mandated partial self regulation. It then considers contemporary debates over the efficacy of these regimes, focusing on the scope of self regulation, the practice …

Law, Labour And Landscape In A Just Transition, Adrian A. Smith, Dayna Nadine Scott

Articles & Book Chapters

Taking conflicts over new solar energy projects on the agricultural landscape in the global North as its backdrop, the chapter demonstrates how work and labour (including that performed in the North by workers from the global South) are erased both by the opponents and the proponents of such projects. The erasure is consistent with prevailing ways of knowing the human-environment nexus, shaped by an underlying political economy derivative of how international law has constructed and maintained the foundational liberal mythology that separates labour from land. Grounded in our commitment to pursuing a ‘just transition’ to decarbonisation – that is to …

An American Approach To Social Democracy: The Forgotten Promise Of The Fair Labor Standards Act, Kate Andrias

Articles

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, …

Union Rights For All: Toward Sectoral Bargaining In The United States, Kate Andrias

Faculty Scholarship

American labor unions have collapsed. Having once bargained for more than a third of American workers, unions now represent only about 6 percent of the private sector workforce. In the wake of new statutory and constitutional limitations, their presence in the public sector is shrinking as well.

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Articles

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

The Political Economy And Legal Regulation Of Transnational Commercial Surrogate Labor, Cyra A. Choudhury

Vanderbilt Journal of Transnational Law

India's commercial surrogacy business has been the focus of intense media scrutiny for the past decade. In that time, it has grown from a $400 million industry to over $2 billion. While the growth in the surrogacy market has been rapid and widespread, the Indian government has struggled to regulate it as a business, as a medical practice and for the protection of surrogates. After nearly a decade of proposed draft bills, the government has yet to enact comprehensive regulation. It is now clear that the state will not ban such a lucrative source of income. Scholars of surrogacy have …

Labour's Many Constitutions (And Capital's Too), Eric Tucker

Eric M. Tucker

In recent years there has been an outpouring of popular and scholarly writing on the constitutionalization of labour rights. In this paper I seek to add to this literature in three ways. First, at a conceptual level I unpack two important dimensions of labour rights, their thickness and their hardness. Second, in order to comprehend the multiplicity of sites at which efforts to entrench labour rights are being made, I map them out on a geographic scale. I observe that as the geographic scale of labour rights expands, they become thinner and softer. Third, I emphasize the need to analyze …

The Classical American State And The Regulation Of Morals, Herbert J. Hovenkamp

All Faculty Scholarship

The United States has a strong tradition of state regulation that stretches back to the Commonwealth ideal of Revolutionary times and grew steadily throughout the nineteenth century. But regulation also had more than its share of critics. A core principle of Jacksonian democracy was that too much regulation was for the benefit of special interests, mainly wealthier and propertied classes. The ratification of the Fourteenth Amendment after the Civil War provided the lever that laissez faire legal writers used to make a more coherent Constitutional case against increasing regulation. How much they actually succeeded has always been subject to dispute. …

American Gangsters: Rico, Criminal Syndicates, And Conspiracy Law As Market Control, Benjamin Levin

Publications

In an effort to reexamine legal and political decisions about criminalization and the role of the criminal law in shaping American markets and social institutions, this Article explores the ways in which criminal conspiracy laws in the United States have historically been used to subdue nonstate actors and informal markets that threatened the hegemony of the state and formal market. To this end, the Article focuses primarily on the Racketeer Influenced and Corrupt Organizations Act (RICO) as illustrative of broader trends in twentieth-century criminal policy. Enacted in 1970, RICO provides criminal sanctions for individuals engaged in unacceptable organized activities and …

People As Resources: Recruitment And Reciprocity In The Freedom-Promoting Approach To Property, Jedediah S. Purdy

Faculty Scholarship

Theorists usually explain and evaluate property regimes either through the lens of economics or by conceptions of personhood. This Article argues that the two approaches are intertwined in a way that is usually overlooked. Property law both facilitates the efficient use and allocation of scarce resources and recognizes and protects aspects of personhood. It must do both, because human beings are both resources for one another and the persons whose moral importance the legal system seeks to protect. This Article explores how property law has addressed this paradox in the past and how it might in the future.

Two bodies …