The Yale Law Journal

January 2019

An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act

Labor and Employment LawLegal HistoryAdministrative Law

abstract. There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation’s growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American—in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, the system successfully raised wages for hundreds of thousands of Americans, while helping facilitate unionization and a more egalitarian form of administration. And it succeeded within the basic framework of contemporary constitutional doctrine and statutory law.

By telling the story of FLSA’s industry committees, this Article shows that collective labor law and individual employment law were not, and need not be, understood as discrete regimes—one a labor-driven vision of collective rights and the other built around individual rights subject to litigation and waiver. It also demonstrates that, for longer than is typically recognized, the nation experimented with a form of administration that linked the substantive ends of empowering particular social and economic groups to procedural means that solicited and enabled those same groups’ participation in governance (to the exclusion of other groups). Ultimately, recovering this history provides inspiration for imagining alternatives to the current approach to worker participation in the American political economy and to administrative governance more broadly.

author. Professor of Law, The University of Michigan Law School. For helpful feedback at various stages of this project, I am grateful to Sam Bagenstos, Nicholas Bagley, Richard Friedman, Scott Hershovitz, Ellen Katz, Sophia Lee, Nelson Lichtenstein, Nina Mendelson, Julian Mortenson, Bill Novak, Richard Primus, Daphna Renan, César Rosado Marzán, Benjamin Sachs, Ted St. Antoine, and Laura Weinrib. The project also benefited from conversation with Jeremy Kessler, David Madland, Brishen Rogers, and participants at the University of Chicago Constitutional Law Workshop, the Chicago-Kent College of Law Faculty Workshop, the American Political Economy Consortium at Columbia University ISERP, and the Michigan Law School Governance Workshop. For excellent research assistance, I thank Alison Doyle, John He, Marissa Perry, Tony Russo, Sarah Scheinman, Kenneth Sexauer, and the librarians and students at the Michigan Law School library, especially Virginia Neisler. Finally, special thanks to Ashraf Ahmed and the editors at the Yale Law Journal. Research for this project was funded in part by the Cook Endowment.