Andrew Ziaja (University of Baltimore – School of Law) has posted Labor Law’s Resilience, Utah Law Review, forthcoming 2027 on SSRN. Here is the abstract:
Scholars of labor law and climate change sometimes sound like one another, yet without entirely communicating. Climate change scholars wonder about tactics like boycotts and strikes. Labor law scholars gravitate toward concepts like resilience and adaptation. The Article is about labor law’s resilience, for the first time applying the framework of resilience as developed in climate change scholarship to the understanding of labor law and its reform. Although the concept is gaining attraction, labor law’s understanding of resilience is imprecise and incomplete compared to its meaning in reference to climate change, where it first appeared in legal scholarship as an import from climate science research. Resilience offers labor law a frame for perceiving its own blind spots and prioritizing its responses to institutional crises. For climate change scholars, the National Labor Relations Act (NLRA) offers a cautionary study in the long-term consequences of embedding resilient political compromises in foundational legislation.
Labor law is troubled but not doomed. The same is true of the NLRA, which may sound like a relief but is also worrying. Labor law reformers seeking to replace the NLRA will find themselves frustrated by its resilience and the resilience of the compromises it embodies. The NLRA’s “engineering resilience” will continue to impede reform efforts unless labor law develops countervailing “ecological resilience,” emphasizing dynamic federalism as a source of adaptive capacity. Labor law must adapt “in the face of a dynamic environment of change” apart from the NLRA, but also in a manner that tolerates and even borrows resilience from it.
The Article makes proposals to achieve that. The resilience framework underscores the need to reverse forms of labor preemption that impede states and localities from promoting increased union density as a policy objective, even through means that are neutral with respect to which unions represent which workers. Dynamic federalism as an objective nevertheless argues for retaining other forms of labor preemption. Resilience also encourages arbitration of unfair labor practice charges as an alternative to adjudication through the increasingly politicized processes of the National Labor Relations Board. The goal of dynamic federalism further calls for state and local support for labor arbitration as an alternative to direct assertions of their jurisdiction, as in so-called “Trigger Bills” and similar legislation that courts will undoubtedly find preempted under the NLRA. Resilience finally urges that reformers carefully assess sectoral bargaining and other proposals that may centralize policymaking and adjudicative authority and thus undermine dynamic federalism.
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