18 February 2010

Labor Law: The Law in Shambles (Geoghegan)

Left-leaning Chicago labor lawyer Thomas Geoghegan wrote a fascinating "pamphlet," à la Tom Paine, called The Law in Shambles. It makes an argument that when Fareed Zakaria a few years ago argued that the U.S. and Iran(!) had in common too much democracy and not enough rule of law, he had a point but had it half backwards; should've been not enough of either. In fact, he says, the arbitrariness and unfairness of our society in the last 30 years has all but destroyed respect for the rule of law. He argues that this is literally destroying the fabric of our society.

One chapter I found fascinating was the one on labor law. His thesis follows on British historian Sir Henry Maine, who argued that modernity resulted from the transformation of the basis of livelihood from "status" to "contract." Geoghegan says that in the last 30 to 50 years or so in America, we have gone from "contract" to "tort." Where formerly there was either an explicit contract (35% of the workforce union members employed under labor contracts in 1958), and those not explicitly covered by contract were nonetheless implicitly brought in to the bargain (e.g., parallel benefits and work rules, including not being fired without cause and due process), we now have an environment where very few workers are employed in this sort of bargain. Almost everyone is "at will," and the process has become one of distrust and adversarial relationship. This all occurred in conjunction with a widening class gap and income gap, that has resulted in what he calls the "corruption of the middle class," wherein the middle class is not only shrinking, it has come to distrust the system of law, believing (rightly) that it is arbitrary and stacked against them in favor of the wealthiest. Employees by and large literally hate and distrust their employers, and believe that there are no real protections for them against arbitrary and unfair treatment. And they're basically right.

Depressing stuff, and it reminds me of why I just can't stand employment law. It's just too depressing, and I find myself all but unable to represent, even as a paralegal, employers in this rotten system.

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