THE CRIME OF STAGING AN EFFECTIVE STRIKE AND THE ENDURING ROLE OF CRIMINAL LAW IN MODERN LABOR RELATIONS

Abstract

This article concerns the role of criminal law in modern, post‐New Deal labor relations. I emphasize the continuing function of the criminal law in limiting basic labor rights (to organize, strike, and provoke collective bargaining) as reflected in several common practices: the prosecution of labor organizing and protest activity as crimes; the persistent use of injunctions by the courts to curtail labor rights; and the indirect use of the criminal law by the courts and the NLRB to define unfair labor practices and to limit the scope of worker protections under the labor law. I hope to show how these functions reflect both change and continuity relative to the criminal law in pre‐New Deal times.The modern criminal law's labor‐repressive functions are far less crude and overt, and administered in a far more professional fashion, than in the days when criminal conspiracy, syndicalism, and vagrancy laws, for example, were used so extensively and blatantly to undermine labor rights. And rather than simply destroying labor rights, these functions operate alongside, and are incorporated into, a body of labor law designed to protect labor rights. On the one hand, this shift has been of real benefit to labor, allowing workers and organizers much more freedom in their struggles with employers. On the other hand, I argue, modern criminal law still plays a significant role in limiting labor rights. The very factors that now ease the criminal law's impact on workers—the subtlety, professionalism, and procedural regularity with which it is applied, and its coexistence alongside a functional system of labor laws—also obscure and rationalize its real effects on labor rights, making it easier for governments to use the criminal law against labor and harder for labor activists to challenge such practices. My goal is to help unmask these functions of the criminal law with the hope that organized labor and its supporters might better work against and around them.