Abstract

Excerpted From: Shirley Lin, Race, Solidarity, and Commerce: Work Law as Privatized Public Law, 55 Arizona State Law Journal 813 (Fall, 2023) (429 Footnotes) (Full Document)

The ideas ordinary people hold about law create and redistribute power. Time and again, critical schools--from Critical Race Theory (“CRT”) to movement lawyering and law and political economy (“LPE”)--have urged legal academe to incorporate popular movements' understandings of law when we define “law.” As CRT has long maintained, inherent to any critique of law is a critique of racial formation. U.S. law heavily relies upon legal liberal logics, yet most legal curricula decline to expressly acknowledge its existence. This Article asks: What if work law allowed us to understand racism as central to legal liberal frames, rather than ancillary or topical? If work law is complicit in maintaining the law's much-maligned public/private divide, what does it portend for race and “commerce,” and advocacy for economic egalitarianism today?

If we consider the state of the labor market and public accommodations, these new lines of inquiry reveal that work law generates far more racial ideology than current scholarship admits. By work law, I refer collectively to labor law, antidiscrimination law, and the ever-expanding statutory, regulatory, and common-law rules governing the workplace. Only in recent decades have some scholars urged that work law be treated as a unitary field. Recent political-economy scholarship tends to identify employment with cross-cutting issues at the core of governance, including our material well-being; the racial segregation of workplaces and institutions; the relative power corporations wield; public health; and the ambition of our regulatory state. Abolitionist Frederick Douglass's Reconstruction-era speech that opens this Article urges more faith in the insight of ordinary people, and that we center racial analysis to combat workplace coercion.

Modern legal liberal theory--as articulated by courts, policymakers, and many in legal academe--considers racial justice to be a matter of “public” law and commerce to be a matter of “private” law. In our everyday lives, we most likely encounter this public/private tension in the workplace. Many today consider opposing racism in the workplace to be a beneficial public good, if not a democratic necessity. But for the bulk of the past century, Court majorities have resisted popular views by applying private law theories to undercut workplace protections for solidarity and antidiscrimination. Over generations, work law doctrines have shaped how hundreds of millions of Americans experience labor and antidiscrimination law as liberal racial ideologies. This Article takes the first step in a long-term endeavor, by demonstrating how seemingly definitional concepts in workplace solidarity--mutual aid, concertedness, self-interest, exclusivity of union representation, and associational discrimination, among others--are cabined through invocations of private law, and in particular, the market. Centuries after the First Reconstruction, to claim a distinction exists between public and private continues to sow dissension and wrest power from popular jurisprudence in how we conceive of race, solidarity, and commerce.

By focusing on its cooptation within our current legal superstructure, I suggest a new way of theorizing work law to reconstruct it in line with our original vision of multiracial democracy and interracial solidarity. As racial and economic crises continue to accelerate systemic inequality, worker campaigns that center racial justice have blazed their own paths to strengthen--and lead--labor movements. For all concerned, the elephant in the room is Amazon Labor Union (“ALU”).

My name is Chris Smalls, former Amazon employee, now the current President of the Amazon Labor Union: the first union in American history at Amazon.

In 2015, I got hired at the company. I started out as an entry-level worker. And I worked hard. I promoted up to assistant manager in New Jersey. Amazon was on the up and up, and especially back then. I learned four-and-a-half-years later, actually, that was completely wrong. I didn't realize the systemic racism within the company. Amazon employees--a majority are Black and brown workers that come from impoverished areas. I'm a product of that. And a majority of the management, about seventy-five percent in upper management, is either white or Asian. So there is a huge disconnect from the Black and brown workers inside of these facilities.

Besssemer, Alabama--the building that attempted to unionize before we did--[the sheer majority of] the workers are Black and brown [and] are black women. And Amazon spent twenty-five million dollars trying to stop that building from being unionized, and they were successful.

Even before COVID-19 came into play, I watched as they treated the Black and brown workers as numbers: disposable. My Black managers that were above me, we all got thrown to the wolves. You get put on the worst shift, where you have to work Thursday, Friday, Saturday night, twelve hours a day. So when the pandemic hit, it was a life-or-death situation .... The pandemic was affecting not just Black and brown workers at the company, but Black and brown people as a whole in communities, especially in New York City. We became the epicenter of the world. People were dying here every 15 minutes, and most of the people were Black and brown.

I can tell you now, the nurses and doctors from these hospitals right here in the City were on the front lines with us. And they were saying that “we're seeing Amazon workers,” “we're seeing essential workers.” They were seeing them every day in the hospital, and remember--this was before the vaccine. So taking a stance was a no-brainer for me. On March the thirtieth, I led a walkout that led to my firing.

--Chris Smalls, 2022

Before April 2021, a former assistant manager and outsider to the trade union movement would have seemed the person least likely to clinch a union victory, much less inside the second-largest employer in the nation. Smalls and fellow employees at Amazon's storied “JFK8” warehouse waged a radically different, race-critical campaign that went on to make labor history less than a year after the corporation routed intensive, national labor efforts to unionize the Bessemer warehouse. By theorizing the source of their precarity from racial and structural exploitation, workers within the busiest warehouses in the nation leaned on each other for mutual advocacy and aid--solidarity--to protest the injustice of racist staffing practices, inhumane quotas, and ultimately, retaliation for seeking to unionize.

Logistics workers were not alone in centering systemic racism. At this time, also at the risk of discipline and dismissal, Whole Foods clerks nationwide donned Black Lives Matter insignia to express solidarity for their Black coworkers and community members facing institutional racism--as well as oppose anti-Black violence by law enforcement. Rather than simply tallying union election wins and contracts, which alone would offer workers profoundly rare sources of power, ALU and other twenty-first century movements counsel us to pay attention to what is different this time. When we center stories from organizers, particularly those that capture headlines for years on end, reality confounds liberal narratives.

In 2020, the outpouring of support for Black Lives Matter and onset of a global pandemic amplified anti-racist organizing to unprecedented heights. Workplace activism and movement ideation intensified concerns about systemic racism, amplifying messages of racial solidarity. Nevertheless, judges and lawmakers continue to marginalize concepts of collectivity and interracial solidarity, reflexively, as if doctrine will naturally subdue any grassroots effort to imbue law with more expansive meaning. Commentators typically follow suit.

Indeed, the ALU and Whole Foods workers linked their cause with broader social and racial justice movements, responding to but also continuing to face obstacles from doctrinal, private-law rationales that had deradicalized creative and militant workplace organizing. Conflicts with employers reflect that we face injustices “at work” all at once, rather than through discrete subfields. As I demonstrate below, however, the following arguments are still pessimistically labeled “novel” or rejected by courts outright as a matter of law: ALU's arguments that labor law, Title VII, and Section 1981 each, if not combined, clearly safeguard interracially solidarist organizing from retaliation; and the grocery workers' rallying cries of “Black Lives Matter” is protected “mutual aid” under labor law because racism concerns white and nonwhite colleagues alike.

This new wave of race-conscious organizing also strains the ability of traditional frames to direct how we study, teach, and propose to reshape work law. Legal liberal doctrines are replete with secret levers, trap doors, and minefields, as discussed below, particularly in the discursive terrain of work. Ordinary people's movements tell a different story about how work conceptually melds race, solidarity, and commerce. Moreover, campaigns today routinely contest work law's racial politics, and require advocacy, if not adept lawyers, who do not take legal tenets for granted.

This Article is the first to develop a racial critique of the public/private divide within work law and offer a comprehensive account of legal infrastructures that continue to undermine interracial solidarity. The public/private divide evolved from classical liberal theory into a judicial tool of racial control, yet it retains a gravitational force among law schools and in academic discourse. Legal theorists have yet to account for the racial work of the public/private divide over time: particularly as of Reconstruction, the New Deal, the Civil Rights era, and the present day. Through each period, work law has sown public/private dyads across agency offices, courtrooms, lecture halls, and markets. Collectivity and solidarity remain central to our general conception of the “public,” if only because the “private” (as even as the term has been fluid), never provided a conceptual home. Since critics of a public/private distinction must still refer to it in order to describe its harms, I argue that work law's current, transitional state is arguably that of privatized public law.

This insight is not merely descriptive. Privatized public law critiques work law's status as vulnerable; rather than publicized private law, this term offers a narrative shorthand for our historic struggles over work law's explanatory power, one that a century of social movements have shifted to a “public” default, as I argue below. How we explain the open hostility of the judiciary, high-profile intellectuals, and policymakers toward its superstatutes--the National Labor Relation Act and Title VII--requires us to fully engage with racial and labor history, political theory, and critical methodologies. This privatization does not follow a clean, steady trajectory, but the term privatized public law reflects how claims over the divide can substantively harm the lives of American workers today.

Once we center the treatment of race in the Court's last Term, the stakes become clear. In Students for Fair Admissions v. Harvard, six Justices declared that considering race as an unalloyed factor in college admissions violates the Fourteenth Amendment, upending decades of law supporting such modest remediation of past discrimination. To some, concessions to legal formalism paved the way for this betrayal of history and precedent. But even as the majority insisted that racial segregation is unlawful, doing so did not prevent the majority from undermining schools as a democratically vital source of interracial contact.

CRT critiques of liberalism as subversive to racial justice has, in recent decades, gradually quieted in support of the expressive power of rights enforcement, or focused on the specific threat of neoliberalism. When we reassess work law as a whole, however, we may observe that courts and corporations rely private-law rationales to treat workers as market subjects even more brazenly today than when Karl Klare raised an alarm four decades ago. By conceding law to frames that impose narrow conceptions of the economy, we allow courts and policymakers to undermine interracial solidarity precisely when we are most in need of alternative visions.

Deeper histories relate how work law constructs and reconstructs society and should not omit the painful, unsettled accounts of racism. Indeed, labor's identification with hierarchy and oppression at the nation's inception only gestures at why, today, the workplace is rarely theorized as a site of racial solidarity. Burgeoning research that revives the theory of racial capitalism--as a feature inherent to capitalism-- is a major corollary in bridging the theoretical insights of critical race and LPE scholars. Drawing upon older critical and movement-law priorities, I build upon my previous investigation into how our boldest collectivist remediation--the disability accommodations mandate undermined at the start by those who seek to privatize work law. Only a handful of scholars have continued to foretell crisis in the politicization of work law: Sam Bagenstos in tracing the Roberts Court's neo-Lochnerian attacks on collective action and religious exercise in Epic Systems, Janus, and Hobby Lobby; Deborah Dinner as to how neoliberal political approaches have substantially undercut Title VII; and more recently, Niko Bowie as to the Court's manipulation of property doctrine to penalize union organizers who wish to reach workers on farms in Cedar Point Nursery. By inviting scholars to theorize work law over a longer arc, centering racial justice as contemporary movements do, I hope to recover a bridge between the largely independent intellectual movements of CRT and LPE.

This Article proceeds in three parts. Part I begins by briefly reviewing the permutations of public/private concepts within liberal political theory. It then demonstrates how such concepts interacted with legal liberal ideologies regarding race and work at the time, from the antebellum period through the First Reconstruction and the Gilded Age. Private law's facilitation of wealth denied economic benefits to non-whites, first through explicit ideologies of inferiority, then through constitutional reasoning that shielded racist abuse said to occur in “private.” Populist counterpoints to private liberty of contract during this time, however, include the Knights of Labor's multiracial cooperative movement and trade movements' collectivist claims upon law on behalf of the “public.”

Part II contextualizes how subsequent movements, from the New Deal through the Second Reconstruction have challenged judicial suppression of law-- Reconstruction-era law--under the Fourteenth Amendment and Commerce Clause. The failure to include race discrimination in the NLRA's ultimately private framing by lawmakers and elite labor advocates re-entrenched the public/private divide and would provide congruent cover for subordination, indifference, or deterrence of racial solidarity in work law. The rise of conservative and neoliberal opposition to a robust regulatory state followed in recoil, largely through efforts to revert to a private law-dominant system over the past few decades.

Part III provides an original account of the new vanguard in race-conscious, working-class organizing today. It begins with case studies of two highly visible, race-centered campaigns as a means of studying the dynamics between movement strategy and work law: Amazon Labor Union's JFK8 campaign, and Whole Foods workers' organizing around Black Lives Matter. The legal reception of their arguments about interracial solidarity demonstrate how public/private dyads continues to suppress work law's ability to protect racial solidarism in worker movements. Just as importantly, how these colleagues conceive of their racial identity and “self-interest” at work raises novel questions about the sociolegal construction of racial ideology in social movements. This Article concludes by noting some of the core implications of this project, including: reassessing how we teach work law's implications for on-the-ground strategies, especially as to movements for racial justice; and focusing on the importance of alternative models for the state, legal architecture, and economic systems.

Popular movements' insistence on centering race going forward reflect understandings that contradict mainstream legal and political thought. In turn, they pose epistemological challenges for work law. For the moment, uncovering the successes ordinary people have achieved in spite of the law reminds us of the need to incorporate principles of solidarity not blind to race.

[. . .]

[T]here is something illusory about thinking of rights as distinct from collective power (which makes very complicated their capacity to serve as protection from collective power). --Jennifer Nedelsky, 1990

We are in the midst of ambitious efforts to usher in racial and economic change, and link them in public thought. This Article has elicited histories, both mainstream and inconvenient, to reveal work law's potential as a site of transhistorical economic change and racially solidaristic power. Rather than legitimizing the worst aspects of private law theory and liberalism, as the Roberts Court has, I have sought to make visible such efforts to privatize work law as deliberate and calculated, thoroughly informed by racial politics. This project also brings to the fore the ability of ordinary people to reconstruct law in line with our original pursuit of interracial solidarity and the collective good. At this juncture, my case studies of ALU and Whole Foods workers' organizing are simply two among a multitude of race-centered campaigns that require both explicit support and new approaches from scholars within CRT and LPE to interpret. From this standpoint, such endeavors may be more optimistic than pessimistic.

We began by observing that inherent to every critique of law is a critique of racial formation. Because race and law are co-constitutive, work law requires a theory of a public/private designation's effect on anti-subordination principles. This Article has shown how contemporary worker movements that center racial justice must already navigate around conventional strategies, legal analysis, and institutions in areas central to strengthening those movements from within.

At the same time, the expectation that law schools graduate practice-ready advocates means that work law courses should address the on-the-ground impact of doctrines--such as Emporium Capwell's rule of tyranny of the majority (union) as bargained-for, Eastex's assertion of “employees as employees” as purportedly commercial limits upon protected organizing, and the Title VII theory of associational discrimination--upon labor movements and broader society.

Uncovering the increasingly sophisticated public/private divides in work law allows us to deprogram negative narratives, strategies, tactics, messaging, and outcomes with respect to interracial solidarity. The field requires bold theoretical moves to remain relevant to a majority-minority workforce, on the heels of today's Black- and minority-led, so-called “DIY” labor insurgency. It is past time to revive the race-critical connections that animated labor and employment scholarship in earlier decades. This discussion has begun to sketch some core implications of these insights, including: urging scholars to reassess how we teach work law's implications for on-the-ground strategies, particularly as to movements for racial justice; alternative models for the state; reconsidering the emphasis of legal theories within legal education; and highlighting the importance of pluralist roles for economic systems and private law.

That the public/private law allocation within law school curricula endures--centuries after their initial sorting further insight for restoring antisubordination principles within work law, as well as other fields. Racial disunity, violence, and other forms of repression have become a priori concepts in scholarship examining “traditional” public law areas of criminal and constitutional law. In no small part is this development attributable to the understanding of ordinary people that public misconduct by the state, including anti-Blackness in the criminal system, or suppression of minorities' voting power, is illegitimate, and therefore signals intrinsically oppressive systems of law.

This project does not aim to deny the state's ability to provide means of survival in other forms, or its importance in doing so as we cultivate alternatives. It is offered with the intent to invite scholars to further the critique of privatized public law in linkages to other contested areas, such as tort law, family law, health law, corporations law, international law, bankruptcy law, consumer law, and securities law.

While liberal legal logics such as the public/private divide, a zero-sum frame of rights enforcement, and a juristocratic system of law are major, if not idealized, vectors of agreement on the law among the Left, moderates, and the Right, I do not presume that what we call the “public” today ought to be called the “public” tomorrow. Nor do I presume that collectivity and interracial solidarity should always be conceived as “public” at our true Founding, when abolitionists achieved passage of the Reconstruction Amendments after a civil war fought over a racialized economy dependent upon slavery. Inasmuch as CRT and LPE scholarship also grapple with the roles of the state in social change and, implicitly, economic change, future scholarship in work law must contend with the risks of delegating to the state any decisive power over racial formation.

A new path forward becomes necessary in light of how the public/private divide guides--or forecloses--how we relate to one another meaningfully. As predicted here, workers will also lead the way.

Shirley Lin, Assistant Professor of Law, Brooklyn Law School.