Academic journal article Texas Law Review

Law, Organizing, and Status Quo Vulnerability

Academic journal article Texas Law Review

Law, Organizing, and Status Quo Vulnerability

Article excerpt

This is an era of striking economic and political inequality. The statistics are familiar, but a few numbers are worth highlighting. Income disparities in the United States are now the highest they have been since the Gilded Age,1 with the top 1% of earners taking home 20.1% of national income.2 In fact, the twenty wealthiest people in the United States own more wealth than the bottom half of the population put together: twenty individuals with more wealth than another 152 million people.3 On the political front, the picture is no better. Recent studies by political scientists Larry Bartels and Martin Gilens reveal that the government's policies reflect the views of the wealthy but not of the poor or middle class.4 As Gilens puts it, "when preferences between the well-off and the poor diverge, government policy bears absolutely no relationship to the degree of support or opposition among the poor."5

There are multiple causes for the rise of economic and political inequality in the United States, but one such cause is the decline of unions. Between 1973 and 2007, union membership rates fell from 34% of the male private-sector workforce to 8% of that workforce.6 The private-sector rate is now below 7%.7 This dramatic decline is causally related to the increase in both economic and political inequality. Jake Rosenfeld and Bruce Western estimate that up to one-third of the climb in income inequality for men, and one-fifth for women, across these decades is attributable to the decline in unionization rates.8 The decline in union strength is also routinely identified as a critical factor in explaining the rise in political inequality.9

The link between union decline and inequality has led to a burgeoning interest in how the union movement might be reinvigorated, with scholars and popular commentators from a wide range of fields exploring the question anew.10 For labor lawyers and legal academics, the primary area of focus is how law can better enable workers to organize unions when those workers wish to organize them. This is a notoriously difficult question because of an interrelated set of facts about labor in the United States. First, workplaces are nonunion by default, so unionization requires workers to take a series of difficult steps to change the status quo.11 Second, unionization is a collective good and thus organizing a union poses all the difficulties and dilemmas of collective action.12 Third, management is nearly uniformly opposed to unionization and has at its disposal a wide range of tools that are highly effective in deterring union-organizing efforts, greatly exacerbating the collective action problems that would hinder unionization even without managerial opposition.13 These facts make effective legal protection for organizing critical. They also make such protection challenging to design and enforce.

This Essay endeavors to deepen our understanding of how a legal regime like the National Labor Relations Act can make unionization feasible despite these challenges. It does this by offering a different way of understanding how labor law rights and remedies enable union organizing. Because the difficulties involved in unionization are similar to the difficulties that inhere in collective action and social movement mobilization generally, the Essay draws on a prominent strand of social movement theory to make its argument. Known as the political process model, this theory emphasizes two basic preconditions for successful collective action: one, objective structural conditions that make mobilization feasible and, two, the existence of a subjective view among participants that collective action is likely to succeed.14 Although the Essay relies on political process theory, these preconditions for mobilization are common across multiple approaches to social movements.15 The argument in this Essay is that law can facilitate both the objective and subjective preconditions for collective action.

The notion that law can create objective structural conditions for successful collective action is relatively familiar, but the point is worth reiterating, and the Essay will spend some time showing how labor law functions in this way. …

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