The Fall and Rise of the Private Law of Work
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Description
The modern law of labor and employment emerged out of a century of struggle by workers and their organizations for recognition of the public stake in those relationships. That struggle supplies a historical plot line for this account in the US: From the publicly-enforced dominance of private law before the New Deal settlement in the 1930s; to the New Deal model itself, with collective bargaining at its core; to the subsequent rise of the public law of employment, centered in the courts; to the present moment. The net result is a body of law that in one sense is neither here nor there, but that contains elements of both private and public law. The U.S. law of work and its history may be unusual, among other ways, in the extent to which the battle lines between labor and capital have corresponded to the lines between private and public law. A brief survey of that history will set the stage here for a closer look at tensions between private and public law within contemporary employment law, especially as seen in controversies over mandatory arbitration and independent contracting. Both controversies illustrate employer efforts to expand the domain of private ordering through contract and to blunt or escape the liabilities and limitations arising out of public employment law. The story is largely U.S.-centric, but will offer some broader comparative observations along the way and in concluding.
Source Publication
Research Handbook on Private Law Theory
Source Editors/Authors
Hanoch Dagan, Benjamin C. Zipursky
Publication Date
2020
Recommended Citation
Estlund, Cynthia, "The Fall and Rise of the Private Law of Work" (2020). Faculty Chapters. 426.
https://gretchen.law.nyu.edu/fac-chapt/426
