The Ossification of American Labor Law and the Decline of Self-governance in the Workplace

Abstract

This article argues that the ineffectuality of American labor law and the shrinking scope of collective representation and collective bargaining are partly traceable to the law’s “ossification”—to its having been essentially sealed off for several decades from democratic revision and renewal and from local experimentation and innovation. The elements of this process of ossification, once assembled, make up an imposing set of barriers to innovation. The basic law has been cut off from legislative revision at the national level by Congress; from “market”-driven competition by employers; from the entrepreneurial and creative energies of private litigation; from variation at the state or local level by representative or judicial bodies; from changing constitutional doctrine; and from emerging transnational legal norms. Moreover, the National Labor Relations Board—the designated institutional vehicle for adjusting the labor laws to modern conditions—is increasingly hemmed in by the age of the text and the large body of judicial interpretations that has grown up over the years. The resulting statutory scheme is drastically out of date and out of sync with the needs of 21st century workers and labor markets.