How Bad Could it Get (Legally)?

Source: Benjamin Sachs, OnLabor blog, May 26, 2017

It’s a good moment to think creatively and expansively about how to revitalize the U.S. labor movement. This important work is underway, with contributions from academics, labor lawyers, union organizers, and others. Substantive debates about the future of labor law and labor organizing now populate the pages of publications ranging from the Yale Law Journal to Boston Review. Much of this writing evidences an appropriate degree of optimism – the pieces assume a future in which, for example, progressive law reform might be possible, or in which workers can regain power through increased use of strikes even in the absence of law reform, or in which fundamental aspects of U.S. political economy (and political ideology) might be transformed. This kind of optimism is necessary to visionary thinking, and it’s badly needed today.

But, I thought it might also be worth writing from the opposite perspective and asking how bad it might really/plausibly get over the next handful of years. Most of us know much of this already, so you might wonder what the point of such a morose exercise would be. The idea is not to wallow. To the contrary, the idea is that putting in one place the major pieces of what could go wrong (legally) over the next few years could help as we continue to imagine and build a better future for the labor movement. As Van Jones put it recently, “hope for the best but expect and prepare for the worst.”

Some caveats. One, and most important, what follows are not predictions, and I do not mean to suggest that these things are likely. Instead, these are thoughts about the kinds of negative developments that seem within the realm of the possible (even though, with respect to every one, I think the better arguments are on the other side). Two, given the limits of my expertise, I focus exclusively on how bad labor law could get, leaving to others the question of how bad things could get on other fronts. Three, I may be wrong in two directions: omitting other possible problems and including things that aren’t plausible. For that reason, we invite follow-on posts that offer either kind of corrective. Four, and finally, it might be worth saying that this exercise goes against my own nature, which, for better or worse, skews optimistic (as I’ve been critiqued for being).

All that said, here’s what seems within the realm of the plausible: ….