Abstract Fragmented regions face a range of collective action problems on issues ranging from transportation to affordable housing. Specifically, within regions, free-rider and race-to-the-bottom problems both abound. This Article offers theoretical lenses to clarify the sources of, and barriers to solving, these problems. First, it introduces the concept of concentricity to better understand the region. The municipality and the region represent coexisting, concentric communities and nodes of competition. The geographically based identity that one espouses may toggle between the local and the regional across different contexts. Second, this Article describes a community-competitor feedback loop. Drawing on social science literature, the Article shows how encouraging deep identification with a community can inspire competition with other communities. And encouraging competition between communities can deepen community identity. The Article then applies these theories to practical considerations. Given the persistent nature of hyperlocal identity, intraregional competition, and the resultant feedback loop, mandatory regional solutions may often be politically unattainable, even when they are the optimal solution. Accordingly, this Article presents two voluntary, cooperative regionalist solutions that embrace and potentially exploit regions’ concentric identities, instead of doing the more costly work of dislodging local identity.
{"title":"Communities of competitors: Toward leveraging the region’s contradictions","authors":"Fred O. Smith","doi":"10.1515/til-2023-0020","DOIUrl":"https://doi.org/10.1515/til-2023-0020","url":null,"abstract":"Abstract Fragmented regions face a range of collective action problems on issues ranging from transportation to affordable housing. Specifically, within regions, free-rider and race-to-the-bottom problems both abound. This Article offers theoretical lenses to clarify the sources of, and barriers to solving, these problems. First, it introduces the concept of concentricity to better understand the region. The municipality and the region represent coexisting, concentric communities and nodes of competition. The geographically based identity that one espouses may toggle between the local and the regional across different contexts. Second, this Article describes a community-competitor feedback loop. Drawing on social science literature, the Article shows how encouraging deep identification with a community can inspire competition with other communities. And encouraging competition between communities can deepen community identity. The Article then applies these theories to practical considerations. Given the persistent nature of hyperlocal identity, intraregional competition, and the resultant feedback loop, mandatory regional solutions may often be politically unattainable, even when they are the optimal solution. Accordingly, this Article presents two voluntary, cooperative regionalist solutions that embrace and potentially exploit regions’ concentric identities, instead of doing the more costly work of dislodging local identity.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"19 12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135856160","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Scholarship on regionalist institutions lacks a theory of regionalist politics because we lack regional political parties, without which regional politics is difficult. Particularly in the United States, regional governments are the product of either intergovernmental agreements between governments controlled by ostensibly national parties or state statutes and federal grants administered by ostensibly nonpartisan bureaucrats. The absence of truly regionalist politics and parties creates problems for governmental problem-solving at both the national and regional levels. First, politics abhors a vacuum: In the absence of truly regionalist parties, politics generates semi-regionalized parties that risk hindering national policymaking with the parochial outlook of the semi-regionalized politicians. Second, regional politics are important tools for organizing both legislators and voters to pursue regionally controversial ends requiring political compromise. National parties organized around national issues cannot perform this function at the regional level. Without regional parties organized around issues like overcoming NIMBY (“not-in-my-backyard”) resistance to housing, for instance, it is difficult to rally politicians to take politically costly positions on those issues. This Article aims to solve the problem of missing regionalist parties and politics in two steps—first, with a taxonomy of regional governments and regionalist and semi-regionalist parties along with their respective benefits and burdens, and second, with very modest suggestions for promoting regionalist and discouraging semi-regionalist, parties. None of these solutions is perfect. Genuinely regionalist democracy presents an unsolvable problem, resulting from the inevitable cognitive limits of voters and the organizational incentives of politicians at every level of government.
{"title":"The challenge of regionalist institutions without regionalist politics","authors":"Roderick M. Hills","doi":"10.1515/til-2023-0025","DOIUrl":"https://doi.org/10.1515/til-2023-0025","url":null,"abstract":"Abstract Scholarship on regionalist institutions lacks a theory of regionalist politics because we lack regional political parties, without which regional politics is difficult. Particularly in the United States, regional governments are the product of either intergovernmental agreements between governments controlled by ostensibly national parties or state statutes and federal grants administered by ostensibly nonpartisan bureaucrats. The absence of truly regionalist politics and parties creates problems for governmental problem-solving at both the national and regional levels. First, politics abhors a vacuum: In the absence of truly regionalist parties, politics generates semi-regionalized parties that risk hindering national policymaking with the parochial outlook of the semi-regionalized politicians. Second, regional politics are important tools for organizing both legislators and voters to pursue regionally controversial ends requiring political compromise. National parties organized around national issues cannot perform this function at the regional level. Without regional parties organized around issues like overcoming NIMBY (“not-in-my-backyard”) resistance to housing, for instance, it is difficult to rally politicians to take politically costly positions on those issues. This Article aims to solve the problem of missing regionalist parties and politics in two steps—first, with a taxonomy of regional governments and regionalist and semi-regionalist parties along with their respective benefits and burdens, and second, with very modest suggestions for promoting regionalist and discouraging semi-regionalist, parties. None of these solutions is perfect. Genuinely regionalist democracy presents an unsolvable problem, resulting from the inevitable cognitive limits of voters and the organizational incentives of politicians at every level of government.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135856162","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract The role of subnational regions is ill-conceived in international law scholarship, which has come to slowly accept the important role that cities can play as international actors. Opening up the academic debate for a perspective on regions promises to develop new insights on the divide of governance functions between international organizations and states, regions and cities. At the same time, the regional focus helps to unearth some of the shortcomings of overly enthusiastic approaches to what cities can do as global actors. International law scholarship has found it difficult, however, to engage with the concept of the region. This is owed, as this Article demonstrates, to difficult definitional issues as well as the informalizing bend of a focus on regional governance, which is hard to square with traditions of formalist thinking in international law. Ultimately, the Article argues that regions can function as a useful prism through which to analyze current governance challenges.
{"title":"Cities in a world of regions – Remarks from an international law perspective","authors":"Helmut Philipp Aust","doi":"10.1515/til-2023-0015","DOIUrl":"https://doi.org/10.1515/til-2023-0015","url":null,"abstract":"Abstract The role of subnational regions is ill-conceived in international law scholarship, which has come to slowly accept the important role that cities can play as international actors. Opening up the academic debate for a perspective on regions promises to develop new insights on the divide of governance functions between international organizations and states, regions and cities. At the same time, the regional focus helps to unearth some of the shortcomings of overly enthusiastic approaches to what cities can do as global actors. International law scholarship has found it difficult, however, to engage with the concept of the region. This is owed, as this Article demonstrates, to difficult definitional issues as well as the informalizing bend of a focus on regional governance, which is hard to square with traditions of formalist thinking in international law. Ultimately, the Article argues that regions can function as a useful prism through which to analyze current governance challenges.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"61 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135856163","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Stark variations exist in U.S. immigration enforcement. These variations have persisted even during the COVID-19 pandemic, when special measures that should have constrained variations were in place. This Article argues that variations in discretionary enforcement decisions based on resistance to national policies, bias, illegal tactics, or arbitrariness are unjust and should be curtailed. The Article first distinguishes between transparent sources of variation in immigration law and variations that stem from non-transparent, discretionary determinations. Within the category of discretionary determinations, the Article argues that there are just and unjust variations. It contends that unjust variations raise serious constitutional concerns, weaken preemption doctrine, and require us to reconceptualize the immigration federalism debate to account for cooperative and uncooperative behavior within the federal government itself. Finally, the Article offers solutions to help limit unjust variations.
{"title":"Shadow regionalism in immigration enforcement during COVID-19","authors":"Fatma Marouf","doi":"10.1515/til-2023-0023","DOIUrl":"https://doi.org/10.1515/til-2023-0023","url":null,"abstract":"Abstract Stark variations exist in U.S. immigration enforcement. These variations have persisted even during the COVID-19 pandemic, when special measures that should have constrained variations were in place. This Article argues that variations in discretionary enforcement decisions based on resistance to national policies, bias, illegal tactics, or arbitrariness are unjust and should be curtailed. The Article first distinguishes between transparent sources of variation in immigration law and variations that stem from non-transparent, discretionary determinations. Within the category of discretionary determinations, the Article argues that there are just and unjust variations. It contends that unjust variations raise serious constitutional concerns, weaken preemption doctrine, and require us to reconceptualize the immigration federalism debate to account for cooperative and uncooperative behavior within the federal government itself. Finally, the Article offers solutions to help limit unjust variations.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135855942","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Regionalism is experiencing a global resurgence as countries grapple with issues such as coordination problems, economic inequality, racial tensions, and environmental degradation. Nations are exploring various regional entities as potential solutions to these challenges. However, despite the growing prominence of regions, they remain undertheorized. While extensive research has been conducted on national and local governments, regions have often been treated as either state-like or locality-like, or as ad-hoc remedies for the limitations of both. This article seeks to complicate this perspective and present the initial stages of a theory of regions. By examining the case study of the Cities’ Union in Israel and tracing its historical origins and legal evolution into multipurpose regional clusters, the article uncovers valuable theoretical insights about regions. First, it argues that just as “the local” and “the national” mutually shape one another, “the local” and “the regional” too are interdependent concepts, each definition relying on the other. The existence of a third concept—the regional—is crucial, making this a conceptual triad rather than a dyad. Second, the article highlights that legal institutions such as interlocal cooperations and special-purpose governments (SPGs) are not inherently local or regional but can be perceived as either depending on historical and political contingencies. The conceptualization and concrete manifestations of local and regional forms are subject to political concerns and ideological commitments, extending beyond mere technical or functional considerations. Lastly, the article reflects on the unique characteristics of regional forms that make them legally, socially, geographically, and economically nimbler and more adaptable than their national and local counterparts.
{"title":"The political stakes of regions","authors":"Yishai Blank, Issi Rosen-Zvi","doi":"10.1515/til-2023-0014","DOIUrl":"https://doi.org/10.1515/til-2023-0014","url":null,"abstract":"Abstract Regionalism is experiencing a global resurgence as countries grapple with issues such as coordination problems, economic inequality, racial tensions, and environmental degradation. Nations are exploring various regional entities as potential solutions to these challenges. However, despite the growing prominence of regions, they remain undertheorized. While extensive research has been conducted on national and local governments, regions have often been treated as either state-like or locality-like, or as ad-hoc remedies for the limitations of both. This article seeks to complicate this perspective and present the initial stages of a theory of regions. By examining the case study of the Cities’ Union in Israel and tracing its historical origins and legal evolution into multipurpose regional clusters, the article uncovers valuable theoretical insights about regions. First, it argues that just as “the local” and “the national” mutually shape one another, “the local” and “the regional” too are interdependent concepts, each definition relying on the other. The existence of a third concept—the regional—is crucial, making this a conceptual triad rather than a dyad. Second, the article highlights that legal institutions such as interlocal cooperations and special-purpose governments (SPGs) are not inherently local or regional but can be perceived as either depending on historical and political contingencies. The conceptualization and concrete manifestations of local and regional forms are subject to political concerns and ideological commitments, extending beyond mere technical or functional considerations. Lastly, the article reflects on the unique characteristics of regional forms that make them legally, socially, geographically, and economically nimbler and more adaptable than their national and local counterparts.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135856158","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we reunite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work. Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by—and relegated to—employment and labor law. But contract law is not what contract theorists claim. Neither is contract law what the dominant employment theorists fear—a domain that necessarily misses the constitutive place of work in people’s life-plans and overlooks the systemic vulnerability of workers to their employers. Contract, we contend, is not work law’s canonical “other.” Rightly understood, contract is an autonomy-enhancing device, one founded on the fundamental liberal commitment of reciprocal respect for self-determination. From this “choice theory” perspective, the presumed opposition between employment and contract law dissolves. We show that many employment law doctrines are not external to contract, but are instead entailed in liberal contract itself. Grounding worker protections in contract theory has two salutary effects. First, it offers workers more secure protection than that afforded by their reliance on momentary public-law compromises. Second, it reveals contract’s emancipatory potential for all of us—not just as workers, but also as widget buyers. Contract can empower, and employment can show the way.
{"title":"Can contract emancipate? contract theory and the law of work","authors":"Hanoch Dagan, M. Heller","doi":"10.1515/til-2023-0005","DOIUrl":"https://doi.org/10.1515/til-2023-0005","url":null,"abstract":"Abstract Contract and employment law have grown apart. Long ago, each side gave up on the other. In this Article, we reunite them to the betterment of both. In brief, we demonstrate the emancipatory potential of contract for the law of work. Today, the dominant contract theories assume a widget transaction between substantively equal parties. If this were an accurate description of what contract is, then contract law would be right to expel workers. Worker protections would indeed be better regulated by—and relegated to—employment and labor law. But contract law is not what contract theorists claim. Neither is contract law what the dominant employment theorists fear—a domain that necessarily misses the constitutive place of work in people’s life-plans and overlooks the systemic vulnerability of workers to their employers. Contract, we contend, is not work law’s canonical “other.” Rightly understood, contract is an autonomy-enhancing device, one founded on the fundamental liberal commitment of reciprocal respect for self-determination. From this “choice theory” perspective, the presumed opposition between employment and contract law dissolves. We show that many employment law doctrines are not external to contract, but are instead entailed in liberal contract itself. Grounding worker protections in contract theory has two salutary effects. First, it offers workers more secure protection than that afforded by their reliance on momentary public-law compromises. Second, it reveals contract’s emancipatory potential for all of us—not just as workers, but also as widget buyers. Contract can empower, and employment can show the way.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"3 1","pages":"49 - 73"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81908825","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This Article uses a history of the push for job security in the United States during the late 20th century to assess New Private Law (NPL) theory. The history recounts the rise and fall of common law and statutory approaches to replacing at-will employment with termination for just cause only. Applying NPL theory to that history, the Article argues that NPL theorists’ current approach to defining their topic of study and distinguishing it from public law is inconsistent within and across theories. NPL theorists seek to carve out an area of law where interpersonal morality trumps legal economists’ goal of collective welfare maximization. That conceptual project depends on a coherent and consistent approach to distinguishing private from public law. Ultimately, the Article argues, NPL theorists face a more fundamental problem, however. Regardless of how one categorizes the events in this history, it shows that the common law-derived interpersonal morality at the heart of NPL theory may not strengthen worker protections in the ways at least some of its theorists hope.
{"title":"The history of job (in)security: Why private law theory may not save work law","authors":"Sophia Z. Lee","doi":"10.1515/til-2023-0009","DOIUrl":"https://doi.org/10.1515/til-2023-0009","url":null,"abstract":"Abstract This Article uses a history of the push for job security in the United States during the late 20th century to assess New Private Law (NPL) theory. The history recounts the rise and fall of common law and statutory approaches to replacing at-will employment with termination for just cause only. Applying NPL theory to that history, the Article argues that NPL theorists’ current approach to defining their topic of study and distinguishing it from public law is inconsistent within and across theories. NPL theorists seek to carve out an area of law where interpersonal morality trumps legal economists’ goal of collective welfare maximization. That conceptual project depends on a coherent and consistent approach to distinguishing private from public law. Ultimately, the Article argues, NPL theorists face a more fundamental problem, however. Regardless of how one categorizes the events in this history, it shows that the common law-derived interpersonal morality at the heart of NPL theory may not strengthen worker protections in the ways at least some of its theorists hope.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"32 1","pages":"147 - 179"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"88396011","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This Article explores how managerial prerogative shapes disputes over employment classification and reveals a neglected but prominent feature in legal arguments about platform worker rights—the disputed relevance of a platform’s intellectual property rights. In classification disputes, instead of denying that it has a right to control how others perform services for it, the company often concedes its employer-like authority but offers an alternative rationale: managerial prerogative. The company argues, and judges often agree, that its labor control is not the exercise of employer authority but instead reflects a prerogative of enterprise ownership, like a right to protect property and determine product lines. Thus, managerial prerogative both explains labor control and exempts that control from the statutory duties that would otherwise attach under the legal tests. Platform companies appear to have taken notice of such cases and designed their work relationships around property-based rationales. For instance, Uber uses a software “license” in which drivers agree to Uber’s authority as a condition for accessing the app. The license depicts the terms upon which drivers must affirmatively cooperate with Uber to produce transportation as simply the negative duties not to interfere with Uber’s intellectual property. The Article concludes that we must reject appeals to managerial prerogative in employment classification disputes. To assume that a property-based rationale for labor control is inconsistent with employment is to misunderstand the legal basis of employment and the purpose of statutory labor law. The appeals also rely on dubious economic assumptions and conflate property rights with agreements about the use of property.
{"title":"Managerial prerogative, property rights, and labor control in employment status disputes","authors":"J. Tomassetti","doi":"10.1515/til-2023-0010","DOIUrl":"https://doi.org/10.1515/til-2023-0010","url":null,"abstract":"Abstract This Article explores how managerial prerogative shapes disputes over employment classification and reveals a neglected but prominent feature in legal arguments about platform worker rights—the disputed relevance of a platform’s intellectual property rights. In classification disputes, instead of denying that it has a right to control how others perform services for it, the company often concedes its employer-like authority but offers an alternative rationale: managerial prerogative. The company argues, and judges often agree, that its labor control is not the exercise of employer authority but instead reflects a prerogative of enterprise ownership, like a right to protect property and determine product lines. Thus, managerial prerogative both explains labor control and exempts that control from the statutory duties that would otherwise attach under the legal tests. Platform companies appear to have taken notice of such cases and designed their work relationships around property-based rationales. For instance, Uber uses a software “license” in which drivers agree to Uber’s authority as a condition for accessing the app. The license depicts the terms upon which drivers must affirmatively cooperate with Uber to produce transportation as simply the negative duties not to interfere with Uber’s intellectual property. The Article concludes that we must reject appeals to managerial prerogative in employment classification disputes. To assume that a property-based rationale for labor control is inconsistent with employment is to misunderstand the legal basis of employment and the purpose of statutory labor law. The appeals also rely on dubious economic assumptions and conflate property rights with agreements about the use of property.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"277 1","pages":"180 - 205"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"73385568","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract This Article argues that the duty of good faith in contractual performance offers powerful but neglected resources to empower workers to pursue their legitimate interests and resist mistreatment by employers. The duty of good faith creates a joint authority structure within contractual relationships, vesting co-contractors with equal and joint authority over the meaning, purposes, and, hence, the requirements of their contract. Implementing such an authority structure requires ensuring that the parties to a contract have the communicative space and epistemic resources they need to uncover and develop a common understanding of their contract. In the context of employment, such an authority structure would be transformative. It would require legal recognition of a variety of employee speech rights and protection from termination for reasonable and good faith refusals to perform work, and would offer a legal basis to challenge the scope and enforceability of at-will employment clauses. The duty of good faith could thus supply a common law foundation for rights and obligations commonly associated with labor law.
{"title":"Good faith in employment","authors":"Sabine Tsuruda","doi":"10.1515/til-2023-0011","DOIUrl":"https://doi.org/10.1515/til-2023-0011","url":null,"abstract":"Abstract This Article argues that the duty of good faith in contractual performance offers powerful but neglected resources to empower workers to pursue their legitimate interests and resist mistreatment by employers. The duty of good faith creates a joint authority structure within contractual relationships, vesting co-contractors with equal and joint authority over the meaning, purposes, and, hence, the requirements of their contract. Implementing such an authority structure requires ensuring that the parties to a contract have the communicative space and epistemic resources they need to uncover and develop a common understanding of their contract. In the context of employment, such an authority structure would be transformative. It would require legal recognition of a variety of employee speech rights and protection from termination for reasonable and good faith refusals to perform work, and would offer a legal basis to challenge the scope and enforceability of at-will employment clauses. The duty of good faith could thus supply a common law foundation for rights and obligations commonly associated with labor law.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"108 1","pages":"206 - 228"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81298311","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Abstract In this Article, I contest on both theoretical and empirical grounds the progressive agenda, as represented by Hanoch Dagan, that seeks to advance the unionization movement in the name of individual autonomy and property. Theoretically, the Article shows that the common-law account of autonomy, which stresses freedom of action from external constraints involving the use or threat of force, provides the best analytical framework, one that undermines the modern progressive case for collective bargaining by workers. The negative account of autonomy applies to all persons; its correlative duties are simple. It applies regardless of the overall level or distribution of wealth. It is scalable from small to large societies. And it forces employers to respect the full range of material and psychological needs in order to recruit and retain their workers. In contrast, the modern progressive alternative imposes no clear correlative duties on employers. It has no obvious way to constrain the dominance of union forces. And its commands are sufficiently complex that they are often not understood by the workers whom they are intended to protect. Empirically, this Article shows that the institutional rigidity of union structures in dynamic markets fails; and it rejects the claim that individual workers are wedded to their current employer, given competitive forces that allow for rapid entry and exit. Given the long-term systematic advantages of the classical liberal model, it is no surprise that unions are generally in decline in major industrial societies.
{"title":"The classical liberal version of labor law: Beware of coercion dressed up as liberty","authors":"R. Epstein","doi":"10.1515/til-2023-0007","DOIUrl":"https://doi.org/10.1515/til-2023-0007","url":null,"abstract":"Abstract In this Article, I contest on both theoretical and empirical grounds the progressive agenda, as represented by Hanoch Dagan, that seeks to advance the unionization movement in the name of individual autonomy and property. Theoretically, the Article shows that the common-law account of autonomy, which stresses freedom of action from external constraints involving the use or threat of force, provides the best analytical framework, one that undermines the modern progressive case for collective bargaining by workers. The negative account of autonomy applies to all persons; its correlative duties are simple. It applies regardless of the overall level or distribution of wealth. It is scalable from small to large societies. And it forces employers to respect the full range of material and psychological needs in order to recruit and retain their workers. In contrast, the modern progressive alternative imposes no clear correlative duties on employers. It has no obvious way to constrain the dominance of union forces. And its commands are sufficiently complex that they are often not understood by the workers whom they are intended to protect. Empirically, this Article shows that the institutional rigidity of union structures in dynamic markets fails; and it rejects the claim that individual workers are wedded to their current employer, given competitive forces that allow for rapid entry and exit. Given the long-term systematic advantages of the classical liberal model, it is no surprise that unions are generally in decline in major industrial societies.","PeriodicalId":39577,"journal":{"name":"Theoretical Inquiries in Law","volume":"38 1","pages":"97 - 123"},"PeriodicalIF":0.0,"publicationDate":"2023-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85450924","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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