Labor Relationships & and the Legal Vision of 1L Contracts

Sanjukta Paul—

Contracts is more than an area of law; it is a key piece of the vision we lawyers bring to many other areas of law. The 1L Contracts course supplies a foundation-stone of the “pre-analytic vision” with which lawyers will eventually think about many other things, including labor relationships. Labor regulation as such is addressed only in the optional upper-level curriculum, and it is relatively marginalized even there. As a result, many lawyers, notably in the commercial and business sphere, will bring to their dealings with labor issues the contracts “vision.” That vision ultimately tends to erase the law’s deep involvement in constituting labor relationships. It thus tends to furnish apparent justification for the exercise of power by the already-powerful, in pursuit of private ends rather than the public interest, on the stage created and sustained by law.

The specific pre-analytic vision transmitted by the conventional Contracts curriculum is of atomistic individuals contracting at arms’ length. In this vision, any pre-contracting power differentials, including those power differentials that are created or sustained by law, are rendered invisible. In our historical imagination this vision is symbolized by ‘the Lochner Era,’ which was characterized by the frequent judicial invocation of contract principles to either invalidate or undermine democratic attempts to structure labor relations and markets more generally.

But apart from ignoring, for example, “the background distribution of property rights,” this vision also sits uneasily with the present-time legal constitution of labor relationships. Moreover, perhaps because of its foundation in the pre-analytic vision of contracts, commercial law is generally selective about when it chooses to treat labor contracts as “special” on the one hand, or as instances of a more general type on the other. Continue reading

The Allocation of Economic Coordination Rights

Sanjukta Paul —

The concept of economic competition is central to policymaking deliberation in this country. Yet even as our understanding of that concept evolves to take better account of corporate power, our thinking about competition retains a fundamental blind spot. Simply, the boundaries of the business firm insulate many instances of economic coordination that would be deemed anti-competitive if they were to take place between firms or individual persons. The regulatory discrepancies that flow from this fact tend to entrench existing distributions of advantage, power, and opportunity rather than to balance it.

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Economic life necessarily involves competition and coordination; it always has, although our policy choices about how to allocate coordination rights change. Presently, both antitrust law and our dominant frame for economic policy more generally tend to favor top-down, hierarchical forms of coordination

grounded in ownership rights, while viewing more democratic, horizontal forms of coordination with skepticism. This deep-seated preference, which itself precedes the contemporary concern with promoting competition, can be traced in part to antitrust’s (and the law’s) original preference for protecting property rights over workers’ freedom of association and contract – even as the pre-New Deal courts invoked the freedom of contract in other areas of economic and labor policy.

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