Connecticut Law Review
What accounts for the dissonance between the meaning of our national labor law, as decreed primarily by federal judges, and the social and economic realities of workplace relationships addressed by that law? In his darkly eloquent commentary, Professor Getman acknowledges that such dissonance is not unique to the law governing labor-management relations. Yet the courts' often mistrustful approach toward employee rights under the National Labor Relations Act ( NLRA" or "Act") has had a special impact. The NLRA emerged at a time of social turbulence, and was based on a recognized need to redress the fundamental inequality of bargaining power between labor and management. While other factors help explain the persistence of the inequality six decades later, decisions of the federal judiciary figure prominently in the story. Professor Getman makes arresting use of the analogy between the British army's rules of military engagement in World War I and the rules of legal engagement applied in federal labor law. One of his central contentions is that elites in each setting developed rules "to control the conduct of people whose situation they did not understand and whose experiences they did not share." I will explore two questions that this contention raises for me. First, how should we understand the role played in recent decades by an institutional elite presumptively more responsive to social and economic realities-the politically accountable legislative branch? Over the past 25 years, Congress has declined to adjust the meaning of the NLRA despite intense and repeated efforts by the union movement to alter judicial precedent. To what extent is it appropriate to infer that court decisions interpreting the Act have achieved something akin to democratic legitimacy? Second, how are we to explain federal judges' inhospitable attitude toward workers' rights under the NLRA? Professor Getman refers to class bias, which begets lack of understanding, as a major contributor. Drawing on some of my own empirical data, I offer preliminary thoughts on the extent to which class background and other personal characteristics may influence judicial decisonmaking on labor issues.
James J. Brudney,
Of Labor Law and Dissonance Colloquy, 30 Conn. L. Rev. 1353 (1997-1998)
Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/144