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Excerpted From: Catherine L. Fisk and Diana S. Reddy, Protection by Law, Repression by Law: Bringing Labor Back into the Study of Law and Social Movements, 70 Emory Law Journal 63 (2020) (234 Footnotes) (Full Document)

FiskandreddyOn November 22, 2019, a New York Times headline proclaimed: Stunning $93.6 Million Verdict Threatens to Bankrupt Major Union. 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. What was extraordinary about the dispute was that it resulted in a $93.6 million jury verdict against the union. The ILWU's total assets in November 2019--every cent contributed by its working-class members--were only $8 million. 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.” 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. The United States Supreme Court upheld the judgment in 1952. 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. 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. As the ILWU fought to stay afloat, it understood law and courts to be on the side of its opponents. 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.

The labor movement is a social movement, with a long history of shaping law and being shaped by it in turn. 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. Labor activism was crucial to the enactment of the New Deal and to the period of relatively lower economic inequality in the mid-twentieth century United States. 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. Unions engage in protest, the quintessential social movement activity, to achieve their goals. Indeed, labor unions create an institutional channel for worker protest. 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. 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. 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. Instead, as labor scholar Jane McAlevey wrote in 2016, there has been an “informal gestalt ... that unions are not social movements at all.”

In this Article, we ask: How might the experiences of the labor movement, and, in particular, labor unions as regulated by law, 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.

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. Thinking of organized labor as a primary case of the relationship 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 literature, as coalescing into lawyer-led advocacy organizations that wielded law to achieve broad cultural change through rights invocations, but that struggled to translate those wins into material gains on the ground. The labor movement, particularly as it has been regulated by law since 1947, stands out as an alternative model for how movements and law intersect.

In addition, refocusing on labor creates space for a richer theorization of how law mediates the relationships among social movements. The Juneau Spruce case study shows that law seized upon the strengths of labor as a movement--its reliance on in-the-streets protest, its promotion of solidarity across entire economic sectors and geographic regions, and its institutional power drawn from member dues--and regulated them to deprive them of potency. As other scholars have shown, the social movements that arose later, including the civil rights and women's movements, sought alternate pathways to justice; they avoided the legal pitfalls that weakened labor, yet eventually bumped into jurisprudential constraints of their own.

Our discussion proceeds as follows. In Part I, we trace the pathways by which labor came to be de-emphasized in law and social movements studies and discuss how the emphasis on other movements can be understood to have shaped the field. We focus on five dimensions of the scholarship that do not fully reflect labor's experiences.

In Part II, we use our extensive archival work to reconstruct the ILWU's 1948 to 1955 struggle against the potentially ruinous Juneau Spruce damages judgment; we show how labor's unique regulatory regime was mobilized by opponents to constrain movement activity. The restriction on labor protest occurred just as a new cycle of protest began, the “rights revolution” of the 1950s (this phrase itself reflects the line-drawing we interrogate, since the understanding of certain claims as “rights” is a product of how movements have, and have not, engaged with law).

In Part III, we draw from this case study to suggest ways in which re-focusing on labor's experience with law complicates understanding of the relationship between law and social movements, and specifically, how it enriches the five dimensions of the field identified in Part I. We also argue that reintegrating labor into the literature demonstrates the importance of studying the relationships among social movements, as mediated by law, over time and space. As one primary example, law helped construct the labor and civil rights movements as increasingly distinct from each other, by prohibiting labor unions (but not civil rights groups) from engaging in the forms of social movement activism--mass picketing and sector-wide boycotts--that came to be the model for protest after the 1950s. We conclude with thoughts on the future of labor as a social movement.

As movements today seek to assert more intersectional grievances, the legal boundaries that gave movements their shape throughout the twentieth century merit further scrutiny. Today, an increasing number of labor organizations challenge the multiple inequalities that impact their members' lives. Similarly, the “new civil rights movement”--as the Black Lives Matter protests of 2020 have been called--center reforms that would build the welfare state and address economic inequality. But the ways in which legal constraints have channeled these movements, and the cultural adaptations that have followed, still have sway. Unpacking that history is, as always, essential to escaping it.

[. . .]

Our goal in this Article has been to expand the boundaries of what constitutes the study of law and social movements--to include labor unions seeking economic equity within the workplace, and their socio-historically specific relationship with law.

To do so, we presented a case study of how the labor movement experienced the law during the mid-twentieth century, not as a goal, tactic, or frame--but as something imposed upon it, despite labor's best efforts to avoid it. The legal restraints of the Taft-Hartley Act, as interpreted by courts, seized upon much of what had been labor's strengths--its institutional power (and its coffers), its use of picketing to create solidarity, its legitimacy as a movement advancing the general good--and regulated these strengths to the point of depriving them of potency. Juneau Spruce exploited dissension within the ranks of the CIO, a dissension that had been fanned into flames by the Taft-Hartley Act's coercion of unions to oust suspected Communists from their ranks. The NLRB and courts aided that effort by ignoring the peaceful resolution of the dispute between the two contending unions at the Juneau Spruce mill. Having thus denied labor organizations the power to resolve the disputes, the courts then conceptualized the economic harm that ensued as being entirely the fault of the unions. These multifaceted legal constraints required union lawyers at every step of the process to counsel clients to moderate, to redirect, or to cease movement activity. At the same time, new social movements arose, which sought to avoid labor's fate, and in so doing, reconstituted the relationship between social movements and law.

The story of Juneau Spruce is important not just conceptually but temporally. The early 1950s was a transition point in cycles of protest--the point at which one vision of social movement replaced another, when one type of regulatory regime began to regress, just as another coalesced. Looking back at that moment in time, it is hard not to consider--and perhaps mourn--paths not taken, paths that might have better reconciled these two models of social movement. Today, we sit at what may be another historical turning point. The past ten years can be seen as their own cycle of protest--a populist challenge to the neoliberal turn of the decades prior. New visions of justice contend with older ones: international solidarity versus national supremacy; environment versus growth; inclusion versus exclusion. The raison d'être of governance--and of law with it--appears to be in question. And so too does the future of the labor movement.

On the heels of two years--2018 and 2019--that saw more workers on strike than in previous decades, the 2020 crisis of capitalism brought on by the global coronavirus pandemic has called long overdue attention to the dearth of worker protection and social insurance in the United States. Daily headlines question how it came to be that so many of the workers deemed "essential" are poorly paid, without health insurance and sick leave, and excluded from legal protections linked to employment, because they are undocumented or misclassified as independent contractors. We have shown that law played a significant role in bringing about a world in which essential workers have so few protections; it channeled labor from its mass movement origins in the 1930s, into a powerful institution from the 1940s through the 1960s, to its much weakened form today.

Envisioning there to be different models for how social movements are organized and for how they engage with law not only helps us think through the socio-historical specificity of the rights-oriented social movements, but also allows for theorizing how other movements have drawn or could yet build upon organized labor's collective action, majoritarian, non-rights-based model. For example, other groups (e.g., tenant unions, debtor unions, cooperatives, credit unions, or even class actions) have created or could create institutional channels for the ongoing exercise of collective power. In turn, those institutional channels will both empower and repress, just as they did for labor. And, of course, our socio-historical approach also invites creativity in thinking through new organizational forms and new ways of interacting with law.

In chaotic times like 2020, scholarship at the nexus of law and social movements is more important than ever. For that scholarship to be able to theorize these new challenges, it must be attentive to the jurisprudential boundaries which have channeled social movement activity throughout the twentieth century.

Fisk is the Barbara Nachtrieb Armstrong Professor of Law, University of California, Berkeley.

Reddy is a Doctoral researcher in Jurisprudence and Social Policy, University of California, Berkeley; J.D., New York University School of Law.

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