Reframing the New Deal: The Past and Future of American Labor and the Law

Abstract

This Article reinterprets the period from 1935 to 1973 as a “long exception” to the sustained pattern of legal hostility to labor organizing in the United States. While the National Labor Relations Act (Wagner Act) and the broader New Deal were once regarded as secure solutions to the “labor question” in America, in retrospect they only offered a partial, temporary, and extraordinary respite from state and corporate opposition to the collective interests of working people. The decades from the thirties through the seventies witnessed the rise and fall of union density as well as the fall and rise of inequality that stands out in contrast to the rest of American history since the industrial revolution. However, because of the extraordinary circumstances of that era (which are connected to important sociopolitical variables including the economic emergency, immigration, the state, unions, individualism, and cultural politics), the New Deal serves as a poor historical metaphor for those interested in labor’s revival. The circumstances that created the New Deal are unlikely to be repeated, thus the future of labor organizing and the law will look more like the deep and difficult past of American history prior to the 1930s than like the “modern” age of organizing and collective bargaining.