Document Type

Article

Publication Title

Yale Law Journal

Abstract

During the nineteenth century, the area of labor relations was governed by a set of legal rules that spanned the law of property, contract, tort, and procedure. There was no special set of rules for labor cases as such. Since the advent of the New Deal, these common law principles have largely given way to a complex body of statutory and administrative law that treats labor law as a separate and self-contained subject. The central question in this paper is whether there is any warrant for the special treatment that labor law receives today. I shall concentrate upon the Norris-LaGuardia Act of 1932, and the Wagner Act of 1935, the latter a New Deal statute and the former nearly so. My conclusion is that this (for ease of expression) New Deal legislation is in large measure a mistake that, if possible, should be scrapped in favor of the adoption of a sensible common law regime relying heavily upon tort and contract law. The tort principles protect all individuals against the use or threat of force, and-of great relevance here-against the deliberate inducement of breach of contract. The contract principles allow individuals within this social framework of entitlements to make whatever bargains they please with whomever they please. At the outset it is important to note several important caveats about my analysis. In making these arguments I seek to analyze and evaluate labor law, not to construct a practical program or propose political reform. My operating premise is simple: No set of institutions should be exempt from serious criticism and review. The point is especially important in labor relations, where most modern legal scholarship is confined to the analysis of cases and practices within the current statutory framework. What is needed is an analysis of the statutory framework itself. Much of the critical writing on the subject dates from the 1930's and earlier, before the recent advances both in general legal theory and in law and economics. The fiftieth anniversary of the New Deal is an appropriate occasion for renewed critical scrutiny, as well as for celebration. The outline of this paper is as follows. In the first section, I argue that common law rules provide an appropriate benchmark against which to measure the modern statutory developments. In the second section, I show how a coherent theory of private law, with well developed principles of contract and tort, can govern labor relations. Section III shows the substantial convergence of libertarian and utilitarian principles as they apply to labor relations. In Section IV, I shall look at the way in which the New Deal reforms handled the tort and contract issues, particularly the soundness of a statutory list of "unfair labor practices" of employers and of its system of exclusive collective bargaining. Section V then examines and criticizes the broader justifications of industrial peace and industrial democracy used to justify the New Deal labor statutes. In dealing with the basic institutional structures, I shall look at both their inherent desirability and their dependence upon a large administrative apparatus. No constitutional questions are assayed. After the basic examination, I shall conclude with a brief discussion about the relationship between the New Deal legislation and the ends it seeks to advance.

First Page

1357

DOI

https://doi.org/10.2307/796178

Volume

92

Publication Date

1983

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