Labor Law as Ideology: Toward a New Historiography of Collective Bargaining Law

Abstract

* © Copyright 1981 by Karl E. Klare. t Professor of Law, Northeastern University School of Law. This article is a revised text of a paper presented to the Tenth Annual Meetings of the American Society for Legal History (ASLH), Philadelphia, Pennsylvania, October 25, 1980. 1. See generally Atleson, Work Group Behavior and Wildcat Strikes: The Causes and Func tions of Industrial Civil Disobedience, 34 Ohio St. L.J. 750 (1973); Cloke, Political Loyalty, Labor Democracy and the Constitution, 5 San Fern. Valley L. Rev. 159 (1976); Klare, Judicial Deradi calization of the Wagner Act and the Origins of Modern Legal Consciousness, 1937-1941, 62 Minn. L. Rev. 265 (1978) [hereinafter cited as Judicial Deradicalization]; Lynd, Government Without Rights: The Labor Law Vision of Archibald Cox, 4 Indus. Rel. L.J. 483 ( 1981); Lynd, Investment Decisions and the Quid Pro Quo Myth, 29 Case W. Res. L. Rev. 396 (1979) [hereinafter cited as Investment Decisions]; Lynd, Reindustrialization: Brownfield or Greenfield?, Democracy, July 1981, at 22; Lynd, Employee Free Speech in the Private and Public Workplace: Two Doctrines or One?, 1 Indus. Rel. L.J. 711 (1977) [hereinafter Employee Free Speech]-, Lynd, Workers' Control in a Time of Diminished Workers' Rights, Radical America, Sept.-Oct. 1976, at 5; Lynd, The Right to Engage in Concerted Activity After Union Recognition: A Study of Legislative History, 50 Ind. L.J. 720 (1975); Stone, The Post-War Paradigm in American Labor Law, 90 Yale L.J. 1515 (1981) [hereinafter cited as Stone]; Atleson, Values and Assumptions in Labor Law (forthcoming) [hereinafter cited as Values and Assumptions]; Klare, The Quest for Industrial Democracy and the Struggle Against Racism: Perspectives on Labor Law and Civil Rights Law (forthcoming in Ore. L. Rev. 1981); Klare, The Bitter and the Sweet: Reflections On the Supreme Court's Yeshiva Decision (forthcoming in Socialist Rev. 1981). See also Feinman, The Development of the Employment at Will Rule, 20 Am. J. Legal Hist. 118 (1976); Freeman, Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, 62 Minn. L. Rev. 1049 (1978). In addition to the works cited, I have learned much from discussions with, and the unpub lished work of, James Atleson, Alan Hyde, Howard Lesnick, Staughton Lynd, Theodore Lieverman, Ira Sills and Katherine Stone. In its original conception, this paper was intended to be a report to ASLH on the critical labor jurisprudence, and I wish to acknowledge that some of the ideas and approaches to collective bargaining law presented here derive from the work of the people listed. However, the scholars I have associated with the critical labor law hold a widely divergent spectrum of views on legal and political questions. Readers are therefore advised that I assume sole responsibility for the formulations contained herein, and that the presentation of critical labor law in this paper is heavily oriented toward my own approaches and research priorities.