After the Law of Apolitical Economy: Reclaiming the Normative Stakes of Labor Unions
abstract. It is a consequential moment for American labor unions. Over the past decade, public support for labor unions has skyrocketed. Yet even in this moment of renewed public interest, I argue that the American conversation about unions remains constrained by the legacy of past legal decisions. Within the post-New Deal constitutional framework, unions were categorized as engaging in commercial activity, rather than advancing inherently normative claims about justice at work. I refer to this jurisprudential paradigm and the sociolegal accommodations that followed as the “law of apolitical economy.” Synthesizing labor history, legal doctrine, sociological theory on social movements, and original empirical work, this Feature traces the trajectory of the law of apolitical economy in courts, identifies its broader cultural reverberations, and marshals new evidence to show that it still matters today.
When liberal lawyers made the political and constitutional case for labor unions in the 1930s, they operated within a socioeconomic context radically altered by the Great Depression. Instead of arguing, as labor movement leaders had in the 1800s and early 1900s, that democracy required people to have autonomy and self-determination in their working lives, and instead of advancing unions’ own emergent fundamental rights claims, they emphasized labor law as sound economic policy, boosting aggregate demand and promoting industrial peace. In the new constitutional equilibrium that emerged after the New Deal, labor-union advocacy within the workplace was treated as transactional rather than normative.
This choice had benefits, but it also had costs. Under the law of apolitical economy, labor unions increasingly found themselves denied First Amendment protection for the forms of broad, solidaristic protest that built the labor movement. And as new social movements began pressing rights claims in the public sphere, labor unions came to be seen as categorically distinct, as interest groups rather than social-movement organizations. When supply-side economics gained prominence in the late 1970s, it was devastating for union legitimacy. New economic theories and the on-the-ground realities they facilitated undermined the New Deal-era economic arguments that had justified labor law. At the same time, unions’ ability to counter with broadly resonant normative arguments was hampered by the detritus of their previous legal bargain. In a moment when rights had become, in sociological parlance, the “master frame” for articulating justice claims, it was well-established that bread-and-butter unionism had little to do with rights, or even right and wrong.
Returning to the present day, I argue that the legacy of the law of apolitical economy continues to shape contemporary discourse, even with public approval at a sixty-year high. Faced with a decimated membership and a legitimacy crisis, labor-movement organizations have sought over the past decade to reassert the normative stakes of unionization. They have used what social scientists call “collective action frames” to show that unions further causes with defined normative stakes. These frames underscore the inherently intersectional role of labor unions in an unequal economy—as institutions that advance society-wide economic equity, racial and gender justice, and community well-being. Yet, they too often discount the value of unions’ primary statutory role: bringing workers together to improve their working conditions. In so doing, they fail to reclaim the inherently political vision of work and workers lost to the law of apolitical economy.
In conclusion, I reflect on the broader implications of this project. The dialogic relationship between law and social movements over the twentieth century—how labor unions were steered away from rights claims while other social movements were steered toward them—continues to shape American law and politics today. In turn, upending the law of apolitical economy can be about more than reclaiming the normative stakes of labor unions; it offers an opportunity to reclaim a transformative vision of rights.
author. Law, Economics, and Politics Fellow, UC Berkeley School of Law. I am grateful for feedback from a veritable village of scholars: Catherine Albiston, Guy-Uriel Charles, Lauren Edelman, Cynthia Estlund, Yan Fang, Catherine Fisk, William Forbath, Charlotte Garden, Clayton Gillette, David Singh Grewal, Linda Hamilton Krieger, Sophia Lee, Taeku Lee, Lawrence Liu, Deborah Malamud, Joy Milligan, Yael Plitmann, James Pope, Benjamin Sachs, Laura Stoker, Christopher Tomlins, David Trubek, Ntina Tzouvala, Kim Voss, and Noah Zatz, as well as participants and attendees of the 2022 Culp/Emerging Scholars Conference, the 2021-22 Berkeley Empirical Legal Studies Fellows Seminar, the 2021 Yale Law and Political Economy Conference, the 2020 American Association of Law Schools New Voices in Workplace Law Conference, the 2020 American Sociological Association Conference, the 2019 Colloquium on Scholarship in Employment and Labor Law, and the 2019 Law and Society Association Conference, and last but not least, all of my job talk interlocutors. I am thankful for the excellent editorial assistance of A.D. Sean Lewis and the expert statistical assistance of Kim Love. Finally, I am deeply indebted to the Yale Law Journal editorial staff, particularly Caroline Parker, Fernando Rojas, and Malina Simard-Halm, who challenged me to clarify my writing and sharpen my ideas, and thereby exponentially improved this piece. Empirical work was supported by a Berkeley Institute for Research on Labor and Employment 2018-19 Research Award. IRB Approval for research discussed within (Project No. 2019-02-11796) was granted on April 18, 2019. Portions of Section III.B were featured on the Law and Political Economy blog on July 29, 2021: https://lpeproject.org/blog/labor-bargaining-and-the-common-good [https://perma.cc/JEC7-UTCW]. I dedicate this Feature to the memory of Professor Lauren Edelman, who twenty years ago challenged sociolegal scholars to “demonstrate the links at the societal level” between legality, morality, and the “social arena . . . [that] we conventionally label ‘the economy.’” Lauren B. Edelman, Rivers of Law and Contested Terrain: A Law and Society Approach to Economic Rationality, 38 Law & Soc’y Rev. 181, 188 (2004).
Given the fact that both labor and business are perceived as powerful, self-interested forces that do not have the public’s interest at heart, why are labor organizations frequently held in greater disdain than business? The answer may lie in the belief that business does some good for everyone in society, even if only incidentally, while unions act primarily to benefit their members and leaders, and have only a negative impact on the rest of the public.
—Seymour Martin Lipset and William Schneider1
Americans are changing their minds about labor unions. Over the past decade, there has been a massive shift in public opinion on organized labor.2 In 2009, during the depths of the Great Recession, only 48% of the American public said they approved of labor unions. This was unions’ lowest approval rating ever and the first time that unions failed to command majoritarian public support.3 But from this nadir, the unexpected happened. Over the next decade, unions’ approval rate climbed steadily more than twenty percentage points, up to 71% by 2022.4 This shift represents one of the most rapid changes in public attitudes toward unions in American history.
Yet in this Feature, I argue that even in this moment of renewed public interest, the American conversation about unions remains constrained in ways that could impede the political and legal transformations necessary to create a better future for workers. Current levels of support for labor unions remain conditional, tied to arguments about labor’s broader societal benefits, but as yet ambivalent about greater freedom for working people as its own social good. In other words, how Americans talk about unions today still overlooks some of the most powerful normative arguments for what they do. This is unsurprising. As I will show, these arguments have been obscured, and purposefully so, for a long time.
In making this claim, I use a law-and-political-economy framework to intervene in contemporary labor-law scholarship.5 During an era of union decline, legal scholarship on labor unions has tended to focus on structural issues: declining union density, changing economic conditions, and the technical insufficiencies of labor law.6 It has had much less to say about changes in what people think about unions and why—about the ideational and ideological currents that shape, and are shaped by, material realities. To the extent that this scholarship has discussed economic consciousness and political will, it has treated those phenomena as exogenous to the legal discussion, as politics or culture, but not law.
In contrast, fields such as history, sociology, and political science have paid greater attention to cultural understandings of unions. Paramount among these, labor historian Nelson Lichtenstein has argued that ideas are central to understanding American labor unions and their place within American political economy.7 Drawing from a cultural-history tradition, he argues that unions have always been engaged in what he calls “the contest of ideas,” among their other battles.8 In dialogue with corporations, politicians, and other institutional groups and social movements, Lichtenstein argues that unions help shape how people understand the economy and the role of workers and unions within it.9 And yet, this scholarship has sometimes left law, as both a source of ideas and a reflection of them, underexplored.
If legal scholarship has focused on law but not ideas, and other fields have focused on ideas but not law, this Feature insists on synthesis. It explores the relationship between law and the contest of ideas. Specifically, it argues that the American conversation about unions has been unduly constrained, in no small part, because of how the law has framed them. During the New Deal, unions were constitutionally categorized as economic actors engaging in commercial activity, and consequently denied recognition as political actors engaging in normative advocacy.10 I refer to this legal move and all the accommodations that have followed from it as the “law of apolitical economy.” I use this term to describe a jurisprudential paradigm that actively minimized the normative stakes of labor unions’ statutory purposes in part through categorizing them as “economic” and therefore outside of the bounds of broader claims-making about societal values. I argue that this paradigm still shapes how Americans understand the stakes of labor unions today. The upshot is that even with support for unions currently at a sixty-year high, that support remains insufficiently tied to support for workers as workers.
It was not always this way. In the late 1800s and early 1900s, American unions raged against the inequalities of wage labor, insisting that there was a collective moral imperative to increase worker well-being and worker freedom. They championed ideals of labor republicanism and industrial democracy, and they spoke of fundamental rights under the First, Thirteenth, and Fourteenth Amendments. In so doing, they insisted that the labor question was an inherently political question.
But in the wake of the Great Depression, liberal lawyers and economists prioritized a different kind of justification for what unions do. They framed unions, and laws supporting them, as sound industrial policy, essential to economic recovery. According to then-dominant economic ideas (early pillars of what would later be referred to as Keynesianism), increased worker income meant increased purchasing power and economic growth. Similarly, liberal policymakers argued that a rationalized, legal process for collective bargaining would promote industrial peace, channeling the worker radicalism that had so recently halted production in factories across the country. The Supreme Court adopted these rationales, noting in 1940 that laws supporting worker bargaining power “have an importance which is not less than the interests of those in the business or industry directly concerned.”11 Labor unions served the common good because of their benefits for business, for industry, for the economy writ large, and only by extension thereof, for workers. Labor law was an act of interest convergence, not just radicalism.
The justification of labor law based on a technocratic claim about the relationship between working conditions and the health of the American economy had long-term consequences. Armed with an economic rationale for unions, New Dealers did not merely abandon broader normative justifications, they actively undermined them. The Keynesian compromise which treated economics as science, rather than values, required a concurrent legal accommodation: economic regulation as rational public policy rather than fundamental rights.
The result, what I call the law of apolitical economy, is an ongoing and untenable line-drawing in constitutional law and broader culture that bifurcates economic issues from sociopolitical ones, treating the former as the domain of technocratic decision-making, while reserving the full scope of “normative” argumentation, whether about rights, fairness, democracy, or even just plain old political contestation, for the latter. While it is well-known that fear of Lochner v. New York12 liberty-of-contract principles helped motivate the Carolene Products deconstitutionalization of “regulatory legislation affecting ordinary commercial transactions,”13 the impact of this choice on sociolegal understandings of unions remains largely unexplored. As I show herein, one of the primary impacts has been the carving out of unions’ statutorily defined role from the material and symbolic benefits of constitutional protection under the First Amendment, and then, over time, from legibility as a social movement.
While labor-law scholars have traced the brokering of the Keynesian compromise, this Feature tells the story of its longer-term consequences. Interrogating the law of apolitical economy is essential to understanding what happened to unions in the late twentieth century. Specifically, it helps explain why the resurgence of neoclassical economic principles in the 1970s was catastrophic for the legitimacy of labor unions. When supply-side economists flipped the Keynesian script, they claimed that corporate productivity, not worker purchasing power, grew the economy and furthered the general welfare. Unions doing what they were statutorily designed to do became rent-seeking at the public’s expense. At the same time, unions’ ability to respond with broadly resonant normative arguments was hampered by its previous concessions. Rights had become the “master frame” for articulating justice claims, and bread-and-butter unionism was no longer legible in this register. From the 1970s through the early 2000s, union membership plummeted, particularly in the private sector.14 Public support for unions did too.
Faced with a decimated membership and a legitimacy crisis, labor-movement organizations have been forced to reassert the normative stakes of unionization. In the past decade, unions have used what social scientists refer to as “collective action frames” to show that unions further causes with defined normative stakes.15 Breaking with the underpinnings of the National Labor Relations Act (NLRA), these innovative frames tend to decenter unions’ benefits for worker majorities. Instead, they emphasize the benefits of organized labor for differently delineated groups: for a populist “people,” a 99% linked by a discursively powerful, yet materially tenuous, solidarity; for service recipients, such as students and patients who benefit from “bargaining for the common good”; and for subgroups of marginalized workers underserved by New Deal protections: workers of color, immigrant workers, women workers.16 These frames directly rebuke the neoliberal framing of unions as rent-usurpers. Each depicts labor as a social movement advancing a broader public interest, not just an interest group serving its members.
Perhaps because of this public-facing work, support for labor unions is currently as high as it has been in sixty years. Yet, I suggest that the legacy of the law of apolitical economy still shapes the contemporary conversation. Leading union collective-action frames too often discount the value of unions’ primary statutory imperative—allowing workers to come together to improve their working conditions. And drawing from my ongoing empirical work, I argue that notwithstanding currently high levels of public support, the public remains ambivalent about supporting unions’ core statutory functions. Rather, at least for some people, public support goes down when unions’ benefits to organized workers are emphasized. The normative vision once advanced by unions proclaimed that work was a site of political domination and that workers deserved more freedom, autonomy, and economic security. Lost to the law of apolitical economy, that normative vision may be the hardest one to recreate. But it may also be the most transformative.
This Feature proceeds as follows. Part I sets forth the historical, legal, and conceptual background. Here, I detail the creation of the jurisprudential paradigm I refer to as the law of apolitical economy. In Part II, I argue that there were long-term costs to the law of apolitical economy, for unions and for their vision of justice of work. Part III focuses on the past decade, which I theorize as a pivotal new chapter in the contest of ideas. As unions and their supporters seek to remake the case for unions, the legacy of the law of apolitical economy lives on. Current support for unions, in other words, belies ongoing ambivalence about worker freedom.
Finally, in Part IV, I call for renewed attention to unions’ lost normative vision, one which included fundamental rights at work. With its legitimacy tied to the “alchemy of Keynesian economics,”17 the labor movement was counseled away from the “alchemy of rights.”18 Law was mobilized in one social context to construct unions’ demands as economic commonsense, just as it was later mobilized to construct other movements’ demands as rights. As American progressivism struggles to theorize and implement a politically practicable intersectionality, it is important to continue to deconstruct this purposeful separation in American law between the material and the dignitary, economics, and rights.