Protection by Law, Repression by Law: Bringing Labor Back Into the Study of Law and Social Movements
| Publication year | 2020 |
Protection by Law, Repression by Law: Bringing Labor Back Into the Study of Law and Social Movements
Catherine L. Fisk
Diana S. Reddy
Within the rich, interdisciplinary literature on law and social movements, scholarly attention has often focused on how the civil rights movement, and other movements that share a resemblance to it, have mobilized law; less attention has been paid to the labor movement's experience of being regulated by law. In this Article, we ask how refocusing on the experiences of labor unions regulated by law complicates understandings of how movements shape law, and law shapes movements, in turn.
To explore the relationship between labor and law at a critical historical juncture, we delve into the largely unexplored legal history of the first major damages judgment against a labor union under the Taft-Hartley amendments to the National Labor Relations Act. Decided as the New Deal era gave way to the "rights revolution" of the 1950s and 1960s, this case dramatizes the costs of the labor movement's distinct regulatory framework. Law helped institutionalize unions—to give them autonomy, power, and legitimacy. At the same time, it subjected them to an increasingly restrictive regulatory scheme that made it harder for them to act—or to be seen—as a social movement.
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Refocusing on labor re-centers the role of law in constructing the jurisprudential boundaries which channeled social movement activity throughout the twentieth century. As social movements today challenge these boundaries in order to assert more intersectional grievances, interrogating taken-for-granted notions about law and movements could not be more important.
Introduction............................................................................................... 65
I. The Ties that Divide........................................................................ 71
A. Enduring Divisions in the Study of Law and Movements ........... 71II. The Story of Juneau Spruce..........................................................98
1. The Dominance of "Rights"................................................. 71B. Labor as a Social Movement ...................................................... 80
2. Seeing Labor as a Social Movement..................................... 73
3. Ongoing Boundary Work...................................................... 75
1. Law as the Problem .............................................................. 80C. Five Dimensions of Law and Social Movements Studies............ 86
2. Lawyering for the Labor Movement ..................................... 84
1. Where Law and Movements Intersect ................................... 86
2. What a Movement Looks Like ............................................... 89
3. The Role of Lawyers ............................................................. 91
4. The Mechanisms of Social Change....................................... 93
5. The Rights Debate ................................................................ 95
A. Labor on the Docks in 1947 ..................................................... 100III. Bringing Labor Back Into Law and Social Movements Studies.............................................................................................122
B. The Taft-Hartley Act Offers a New Tool ................................... 104
C. "The Old Business of Cops and Robbers, Chasing Debtors" .. 109
D. Union Lawyer Oversight of Worker Direct Action................... 117
A. Seeing Social Movements Through the Lens of Labor ............. 122
1. How Law Channels Movements ......................................... 122B. Toward a Theory of the Changing Role of Law and Lawyers Through Cycles of Protest........................................................ 137
2. When Movements Are Institutions with Something to Lose 126
3. Social Movement Lawyers in Service of Institutional Clients ................................................................................. 128
4. Losing Through Losing....................................................... 132
5. Differentiated Rights .......................................................... 134
C. The Legal Reification of Movements ........................................... 140
D. The Future of Labor as a Social Movement ............................. 148
Conclusion.................................................................................................150
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On November 22, 2019, a New York Times headline proclaimed: Stunning $93.6 Million Verdict Threatens to Bankrupt Major Union.2 The article recounted an ordinary dispute between the Portland local chapter of the International Longshore and Warehouse Union (ILWU) and the company that operated the city port; workers had protested the company's failure to hire union members for two jobs.3 What was extraordinary about the dispute was that it resulted in a $93.6 million jury verdict against the union.4 The ILWU's total assets in November 2019—every cent contributed by its working-class members—were only $8 million.5 Accordingly, the article noted that if the verdict were sustained, it could bankrupt the union, "embolden employers frustrated by labor disruptions," and "chill[] the activities of unions that are just finding their footing after decades of setbacks."6 In other words, the everyday application of law would destroy a social movement organization and, perhaps with it, quell a new wave of labor activism.
The year 2019 was not the first time that the ILWU (or other labor unions) faced a potentially catastrophic verdict as a result of protest activity arising from an everyday dispute. As we detail below, in 1949, the ILWU was hit with a verdict worth about $8 million in 2020 dollars for picketing outside the Juneau Spruce lumber mill in Alaska.7 The United States Supreme Court upheld the
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judgment in 1952.8 This was the first major damages judgment to reach the Court under the 1947 anti-labor Taft-Hartley Act, and the ensuing multi-year battle, in the courts and out, for the union's survival reveals how effectively business interests used law to squelch social movement activism. At that time, the ILWU was a multiracial, politically progressive, and activist union that was transforming labor and the politics of the Pacific West by organizing tens of thousands of farmworkers, food processors, and warehouse and dock workers into one big democratically governed union.9 Capitalizing on the opportunity presented by the verdict, company lawyers sought to use judgment collection devices against the ILWU as a way to roll back organizing victories throughout the West Coast and in Hawai'i.10 As the ILWU fought to stay afloat, it understood law and courts to be on the side of its opponents.11 In the days after the Supreme Court's ruling, the ILWU's newspaper summed up this view with a political cartoon: In it, a bespectacled judge floats down from the heavens to hand the court's ruling, labeled "how to break strikes," to a businessman sporting top hat and cigar.12
The labor movement is a social movement, with a long history of shaping law and being shaped by it in turn.13 At times constrained by law and at times bolstered by it, the labor movement was one of the largest and most influential social movements before 1950.14 Labor activism was crucial to the enactment of the New Deal and to the period of relatively lower economic inequality in the
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mid-twentieth century United States.15 Today, even following decades of deregulation of business and anti-labor decisions by courts and agencies, labor unions remain an institutional force for redistribution and economic security.16 Unions engage in protest, the quintessential social movement activity, to achieve their goals.17 Indeed, labor unions create an institutional channel for worker protest.18 As illustrated by the wave of labor organizing and protest activity during the COVID-19 crisis, unions can organize and mobilize those whose interests are overlooked in business and politics as usual.19 The goal of this mobilization, organizing, and protest is to challenge aspects of the status quo and to redistribute wealth and power from those who have more to those who have less.20 And yet, organized labor—and the ways in which it has experienced law—has not been a primary case study within the law and social movements literature.21 Instead, as labor scholar Jane McAlevey wrote in 2016, there has been an "informal gestalt . . . that unions are not social movements at all."22
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In this Article, we ask: How might the experiences of the labor movement, and, in particular, labor unions as regulated by law,23 prove generative in theorizing the relationship between law and social movements? In asking this question, we seek to contribute to ongoing efforts to expand the boundaries of law and social movements scholarship.24
Theory-building within the field of law and social movements has at times been shaped by its primary case studies, especially the civil rights movement, the women's movement, and the LGBTQ movement. Although a few classic and significant works have studied labor, the socio-historically specific ways in which the labor movement has experienced law have not fully permeated the literature.25 Thinking of organized labor as a primary case of the relationship
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between law and social movements accordingly has the potential to complicate some of the more taken-for-granted notions in the field, and with them the socio-legal imaginary of how social movements engage with law. The rights-focused movements of the latter half of the twentieth century have a familial resemblance in their relationship with law. They are envisioned, especially in the legal...
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