Common Law, Labor Law, and Reality: A Response to Professor Epstein

Abstract

Professor Epstein claims to have undertaken serious criticism and review of the American system of labor relations as it has been structured by two pieces of New Deal era legislation, the Norris-LaGuardia Act and the National Labor Relations Act. Such a work by a scholar of Epstein's stature could be of great value to such diverse disciplines as law, economics, sociology, industrial relations political science, and psychology. To be worthy of its subject, such a study would involve an inquiry of tremendous empirical scope and raise the most difficult of methodological problems. How should one evaluate a process that has undergone incremental but constant change over the past forty-five years? By what standards should the efficacy of current labor laws be judged? Are basic democratic principles applicable to the workplace, and if so, to what extent should workers be afforded a voice in "managerial" determinations? Should models of worker participation in decision making other than that sanctioned by the National Labor Relations Act be permitted, and if so, of what type?' These are important, interesting and difficult questions. Professor Epstein, however, avoids them entirely by a breathtakingly simple device: H e takes the "common law" (in its late nineteenth-century form) as the appropriate "benchmark" against which to judge" modern statutory schemes."Thus, he never answers the questions a genuine critical evaluation would have to address, i.e., how have the labor laws worked?