The Politics of Law: A Progressive Critique

By David Kairys | Go to book overview

KARL E. KLARE


24
CRITICAL THEORY AND LABOR RELATIONS LAW

COLLECTIVE bargaining in the United States attained its maximum extent and social impact in the decade after World War II. The unionized percentage of paid (nonagricultural) workers ("union density") peaked over 35 percent in 1945 and never fell below 30 percent until 1962. The fortunes of labor law, the part of the law of employment dealing with unions, collective bargaining, and labor-management relations, are closely linked to the prosperity of the union movement itself. So labor law, both as a practice specialty and as an academic discipline, experienced a kind of golden age in the postwar years, which lasted through the Warren Court period. This article discusses the rich body of labor law that emerged in that golden age.

The doctrines and cases examined here still form the core of labor law today and, for the most part, continue to govern the employment relationship in the collective bargaining sector. They are of vital significance to the daily lives of millions of American workers and their families. But the worlds of politics and of work have changed dramatically since labor law's formative era, and collective bargaining has much less weight as a force in American life than a generation ago. Union density began a precipitous decline in the late 1950s that continued unabated for over three decades. Private sector union density is now barely above 10 percent, no more and perhaps even less than the unionization rate before the Great Depression.1 Unions have been largely on the political and economic defensive in recent decades.

Not surprisingly, labor law entered a sustained crisis some years ago. Employer illegality has skyrocketed, and available legal remedies seem feeble. The U.S. Supreme Court shows little of its earlier interest in or appreciation of labor law, and many of the the union and worker victo-

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