Introduction: Labor Scholarship in an Era of Uncertainty

Abstract

For labor scholars, and for those interested in “labor organizing and the law” more broadly, the early twenty-first century has been a time of uncertainty and dislocation. Trade unions, the institutions at the core of labor scholarship for generations, are in precipitous decline across the globe. In the United States, trade union density in the private sector is hovering around seven percent; in the 1950s, that figure was thirty-five percent. In fact, the United States has not seen union membership statistics as low as the current figures since the years that predate the New Deal and passage of the Wagner Act.1 The United States, of course, is far from alone in this trend: in Israel, union density has fallen even more dramatically, from about eighty percent in the 1980s to twenty-five percent in 2012.2 As severe as these numbers are, there is little reason to expect that we have hit bottom. In part, this is due to labor market trends unfriendly to unionization and collective bargaining, but in part it is due to the fact that the two subjects of this issue of Theoretical Inquiries in Law — “law” and “organizing” — have become antagonists. Or, to put it more bluntly, it is increasingly the case that law is an enemy of organizing. A case in point can be found in recent labor law developments in the United States. In just the last handful of years, the United States Supreme Court has entertained several challenges to unionization rights that can aptly be described as existential threats to unionism. One of these cases, Unite HERE Local 355 v. Mulhall,3 challenged the ability of unions and employers to negotiate