New Article: Survival Labor

New Article: Yvette Butler, Survival Labor, 112 Calif. L. Rev. 403 (2024). Abstract below:

This Article makes one simple, novel claim: crime is labor when it generates income, allows individuals to pursue self-sufficiency, or allows them to fulfill societal expectations of providing for or caring for dependents. When individuals engage in survival crimes, instead of seeing them as criminals, we should see them as workers engaged in survival labor.

The carceral system continues to disproportionately harm racial minorities and people living in poverty. The foundations of many laws regulating and policing racialized bodies have created a culture where Blackness, in particular, is equivalent to criminality. While a penal abolitionist framework is helpful in getting rid of the harmful criminal and civil consequences of criminal penalties, a labor framework shifts the narrative in a way required to transform the perception of crime to one of labor. This shift is particularly important given the renewed attention to penal abolitionist logic and conservative and libertarian attempts to resurrect greater protection for economic liberty through the “right to earn a living.”

In what will become a series of several pieces, this first Article proposes a narrative shift that allows us to critique and reimagine our conceptions of work. People engaged in survival crimes are often subject to the criticism that they should pursue “real work.” After reading this Article, I hope the legal community will question the continued criminalization of poverty, reconsider our understanding of work, and invest in this transformative project to protect the victims of state-sponsored oppression.

News Coverage: The Perilous Existence of a Hamptons Day Laborer

News Coverage: Ginia Bellafante, The Perilous Existence of a Hamptons Day Laborer, N.Y. Times, Apr. 7, 2024.

New Article: Constitutional Clash: Labor, Capital, and Democracy

New Article: Kate Andrias, Constitutional Clash: Labor, Capital, and Democracy, Northwestern University Law Review, Vol. 118, No. 4, 2024. Abstract below:

In the last few years, workers have engaged in organizing and strike activity at levels not seen in decades; state and local legislators have enacted innovative workplace and social welfare legislation; and the National Labor Relations Board has advanced ambitious new interpretations of its governing statute. Viewed collectively, these efforts—“labor’s” efforts for short—seek not only to redefine the contours of labor law. They also present an incipient challenge to our constitutional order. If realized, labor’s vision would extend democratic values, including freedom of speech and association, into the putatively private domain of the workplace. It would also support the Constitution’s promise of free labor; guarantee social and economic rights to workers; expand who qualifies as an equal member of the demos; and forge a more democratic governance structure, with less power for the judiciary and more democratic control over the political economy. The potential threat has not escaped the notice of capital. Business is responding with reinvigorated arguments about the First Amendment, the Takings Clause, due process, equal protection, nondelegation, and the Dormant Commerce Clause, as well as appeals to common law concepts of managerial control and property rights.

By examining labor’s efforts and business’s response, this Article shows that contemporary fights about labor are also inherently fights about constitutional law—about the rights to which citizens and residents are entitled, about governmental powers and structure, and ultimately about how we constitute ourselves as a nation. The Article also offers lessons for how to engage in nonjuriscentric constitutionalism; highlights the importance of advancing an affirmative constitutional agenda; and, from the range of labor’s efforts, outlines a coherent substantive alternative to both business’s constitution and the post-New Deal constitutional compromise that has, in many ways, failed to guarantee a democratic and egalitarian political economy.

New Article: Redefining Public Benefits

New Article: Naomi Cahn & June Carbone, Redefining Public Benefits, Rutgers University Law Review, Forthcoming. Abstract below:

This Article considers the interaction between marriage, households, and public welfare-type benefits. In light of constant cultural and media attention to “the two-parent privilege,” the article argues that the very purpose of public benefits in the modern era is up for redefinition.

The information age, much like the industrial revolution before it, has remade the preconditions for entry into the middle class and contributed to new middle-class family strategies geared to the changing labor market realities. This new era, which has increased income instability and employment insecurity, has increased economic inequality and eroded what were once secure pathways into middle-class status. This changing economy requires rethinking the purpose of public benefits and. a reexamination of the fairness and utility of tying benefits to employment or marriage. This requires reconceiving the State role from one that fills in the gaps left by private jobs’ creation and relationships to one that extends access to the preconditions for middle-class status.

This Article makes three contributions. First, it shows that marriage takes on a very different meaning in the new economy. Second, the article challenges recent exhortations to marry as a way to improve children’s futures, ensure economic stability, and increase overall happiness. Finally, the Article asks how, in the context of a post-industrial economy with constantly shifting employment needs, to assist in making the preconditions universal instead of asking how to fill in the gaps of, or supplement, a private system that no longer reliably provides lifelong employment for a large part of the population. In this venture, marriage becomes largely irrelevant to benefit design.
Part I surveys the design of the public benefits associated with relationship status as a precondition for middle-class status. Part II analyzes who actually receives the different types of marriage-based benefits. While, as Windsor pointed out, a number of federal statutes use marital status as a category, that status is not always a benefit, particularly for people who do not have a job. Part III explores why marriage remains resonant—and for whom. Finally, Part IV sketches out what a redesign of the public system might look like, analyzing how relationship status might be irrelevant to the availability of benefits.

New Article: Towards a Progressive Labor Antitrust

New Article: Hiba Hafiz, Towards a Progressive Labor Antitrust, 125 Colum. L. Rev. (forthcoming 2025). Abstract below:

For decades, antitrust enforcers ignored employer power in labor markets, adopting neoclassical economic assumptions that labor markets were competitive and workers facing low wages or inferior working conditions can quit for better employment terms elsewhere. Despite considerable fanfare regarding the antitrust agencies’ recent turn towards labor antitrust, enforcers still deploy neoclassical assumptions and methods, targeting only proven deviations from a presumed competitive baseline, and finding regulatory intervention warranted solely when enforcers establish imperfect labor market competition, measured through employers’ ability to profitably lower wages or working conditions below what workers would experience in a competitive market. The New Labor Antitrust deduces the harms of employer power from the level of reduced labor market competition workers suffer from its exercise.

This Article radically challenges that approach as contrary to law and policy. First, it uncovers the antitrust statutes’ clear labor and wage policy rejecting competitively determined wage rates in favor of bargained-for wages determined through workers’ collective self-determination. It is the first to contextualize the history of the Clayton and Norris-LaGuardia Acts’ labor exemptions from antitrust regulation as a policy victory by Progressive and institutional economists over neoclassical and formalist views of labor relations. As deregulatory measures, the exemptions were never concessions to market regulation as superior labor policy. Rather, they declared the market’s failure to vindicate labor’s value where any unorganized worker is left to bargain individually over employment terms with corporate employers. Thus, current enforcement that measures employer power and its harms solely in terms of competition and market exchange defies Congress’s disavowal of the market’s ability to properly value labor and entrenches labor’s “commodified” (mis)valuation as antitrust’s lodestar achievement. Second, the New Labor Antitrust’s neoclassical approach contradicts mounting evidence of imperfect competition that should drive new assumptions and novel methods of detecting and countering employer power as a policy matter. Market-based metrics undercount the presence and effects of employer power and make it needlessly more challenging to establish employer liability, and then only for competition- rather than non-competition-based harms, like reducing workers’ countervailing power and full freedom of association. More generally, market- and competition-based metrics limit antitrust’s potential as a regulatory tool to build worker power through strengthening worker-led labor market institutions in antitrust enforcement and remedial design.

The Article explains how the New Labor Antitrust has inherited the neoclassical strictures and legacies of antitrust doctrine and enforcement methods developed outside the labor sphere to usurp a now-forgotten labor and wage policy that Congress once structured into antitrust law. It proposes a thorough reframing of labor antitrust regulation to better detect and target the sources of employer power and the mechanisms of employer exploitation consistent with a policy favoring workers’ collective self-determination. That reorientation begins by answering the originary questions of: (1) how ought we determine labor’s value outside of market-based metrics; and, relatedly, (2) how ought we measure employer power and its harms? It offers preliminary answers and suggests regulatory alternatives that draw from broader federal labor policy and the social scientific and philosophical literatures.

New Article: Taxing Nannies

New Article: Ariel Jurow Kleiman, Shayak Sarkar, & Emily A. Satterthwaite, Taxing Nannies, SSRN, Jan. 2024. Abstract below:

Nannies in the U.S. work long hours for low wages and risk retaliation if they complain. Informal, or “off the books,” work exacerbates their precarity, keeping it secret from state and federal tax agencies, as well as employment and labor agencies. Yet we have little understanding of how nannies navigate the tax reporting that renders them formal or informal.

This Article investigates nannies’ preferences for or against formal employment and tax reporting, the reasons behind such preferences, and how such preferences inform nannies’ relationships with their employers and legal institutions more broadly. The Article employs a multi-method research approach that includes an original and innovative survey of nannies and an analysis of nannies’ tax-related posts on the online forum Reddit. To supplement this research, the Article also discusses interviews with fifteen subject-matter experts regarding industry norms, common challenges nannies face, and policy reforms.

This multi-method approach reveals four key takeaways. First, surveyed nannies express a strong preference for and experience with formal employment. Second, however, a subset of nannies—often undocumented and working more informally—is missing from surveys and the literature. Extrapolating survey results to these most vulnerable populations may be unwise, but our expert interviews fill in these gaps. Third, the formal/informal dichotomy so prominent in the discourse is inaccurate. Rather, nanny pay arrangements exist across a spectrum, with some compensation both on and off the books to accommodate hirers’ and nannies’ complicated interests. As a consequence, the Article’s fourth takeaway is that simple calls for increased enforcement may not accomplish intended goals, given the heterogeneity of nannies’ tax lives. Instead, other legal institutions must first be reformed to better support vulnerable nannies and align incentives for formality across key systems such as tax, immigration, and public benefits.

New Article: “Alt-Legal Services: Re-Visioning Lawyers’ Role in the Fight for Worker Power”

New Article: Elizabeth Ford, Alt-Legal Services: Re-Visioning Lawyers’ Role in the Fight for Worker Power, Berkeley Journal of Employment and Labor Law, Vol. 46, No. 1, 2024. Abstract below:

Can litigation build worker power? This question is the subject of a long-running debate about lawyers’ roles in the labor movement as a whole, and particularly within the community-based worker advocacy and service organizations known as worker centers. On one side, scholars argue that legal services undermine worker power, “atomizing” workers by encouraging them to focus on individual solutions. But others respond that legal services – especially recovering workers’ unpaid wages through wage-and-hour litigation – is essential to improving workers’ material conditions and demonstrating status quo vulnerability. While many organizations have worked hard to harmonize these two perspectives, the argument has served as stumbling block, stoking internal conflict between organizers and lawyers and in the worst case undermining the organization itself.

In this article, I argue that the two sides of this debate are talking past each other because they are assuming different understandings of worker power. Thus, the article first develops a taxonomy of worker power, focusing on countervailing power (power over) and community organizing power (power with). Building on this more precise understanding of worker power, I argue that it is possible to construct a worker-center affiliated law office that both exerts power over employers to force them to stop stealing workers’ wages and builds individual and collective power within communities of workers. Far from rejecting individual representation, I argue that worker centers and other community-based organization can strategically embrace this work through a function I call “Alt-Legal Services.” An Alt-Legal Services office is a law office dedicated to ending wage theft by using legal tools to impose countervailing power on employers and by supporting community campaigns that elevate workers’ collective agency. Finally, I provide some concrete approaches to representation and funding that an Alt Legal Services operation can take.

Upcoming conference: “The Future of Work: The Intersection of Poverty and Labor”

Upcoming Conference: The Future of Work: The Intersection of Poverty and Labor. Friday, March 1st; Time: 9:30 am – 4:30 pm, followed by a small reception. Georgetown University Law Center; Gewirz Center, 12th Floor; 600 New Jersey Ave NW; Washington, DC 20001. Flyer here: GJPLP Symposium Flyer

Join Georgetown J. on Poverty L. & Pol’y’s 2024 Symposium for thought-provoking conversations that delve into the complex and evolving landscape of the future of work. The Symposium will include discussions with academics, union leaders, NLRB staff, and advocates across current topics at the intersection of poverty and labor including worker cooperatives, child labor, automation and technology, worker surveillance, unionism, and collective actions.

Find the full schedule and register to attend at tinyurl.com/GJPLP2024Symposium.

New Article: Race, Solidarity, and Commerce: Work Law as Privatized Public Law

New Article: Shirley Lin, Race, Solidarity, and Commerce: Work Law as Privatized Public Law, 55 Ariz. St. L.J. 813 (2023). Abstract below:

Theorizing work and its regulation has held enduring appeal for legal theorists. Yet intellectual movements that wish to theorize worker coercion within a broader critique of law often sidestep race. Since Lochner, landmark opinions involving race, labor, or both, have served as showpieces for the legal liberal tenets underpinning work law’s doctrines and institutions. Each iteration of the public/private divide instantiates an ideological—but avowedly race-neutral—structure for how we study, teach, and propose to reshape work law. Scholars, judges, and lawmakers typically cede this ground, perhaps because law itself is under right-wing attack.

New Article: “Litigating Precarity: Low-Wage Workers and Child Support Enforcement”

Litigating Precarity: Tonya L. Brito & Kathleen Wood, Low-Wage Workers and Child Support Enforcement, 101 N.C. L. Rev. 1495 (2023). Abstract below:

The child-support enforcement system has failed to come to grips with the labor market realities of the low-wage fathers it summons to court for nonpayment. This Article uses original empirical data gathered from a court-based ethnography and in-depth interviews with judges, lawyers, and noncustodial parents to illustrate how precarious workers experience the child-support enforcement system. The noncustodial fathers in the study are predominantly Black, low-wage, precarious workers who possess significant barriers to employment, including health problems, histories of incarceration, and limited education. Their real-life work experiences present vivid portraits of their difficulties obtaining and retaining stable jobs that provide a living wage. In an effort to find work, they often seek temp jobs or pursue a wide variety of ventures in the cash economy, everything from cutting hair to collecting cans and bottles for money. In light of their precarious work experiences and volatile earnings, it is no surprise that the noncustodial fathers in the study were not able to reliably pay their child-support order in full each month and, consequently, were summoned to court for nonpayment of support. Rather than confronting the reality of what the low-wage precarious labor market offers these fathers, the judges and government attorneys in enforcement hearings, and the child-support system more generally, stubbornly persist in enforcing child-support orders, premised on a full-time minimum wage job, that bear little relationship to the fathers’ actual earnings. Instead, inflated child-support orders set fathers up to accrue tremendous child-support debts that burden them and their families. And fathers experience harsh and counterproductive enforcement remedies, including the loss of their drivers’ licenses and threats of civil incarceration.