Employment Law


Lochner presumption of equal power lives in labor law and undermines constitutional, statutory, and common law workplace protections

Samuel Bagenstos, University of Michigan

In the early 20th century (the “Lochner era”), courts invalidated numerous labor and employment laws for violating a supposed constitutional “freedom of contract.” 


FORTHCOMINGThe legal understanding and treatment of an employment relationship versus a contract

Julia Tomassetti, City University of Hong Kong

This paper shows that the law treats employment relationships differently from other contractual agreements and that this different treatment often places employees at a legal disadvantage relative to employers and to other contractual parties.


FORTHCOMINGEmployer domination of free speech in the workplace

Charlotte Garden, Seattle University School of Law

“At-will” employment is sometimes shorthanded as employers’ rights to fire employees (and employees’ right to quit) for a bad or arbitrary reason, or for no reason at all.


FORTHCOMINGWorkers’ ability to protect themselves from injury, illness, and death under OSHA and the market

Ann Rosenthal, former Associate Solicitor for Occupational Safety and Health at the Department of Labor

This paper examines some of the ways in which people lose rights when they become employees, and discusses how the Occupational Safety and Health Act, as administered by OSHA, attempts to empower employees to begin to reclaim some of those rights.


FORTHCOMINGThe myth of wage compensation for hazardous work

A small but dedicated group of economists, legal theorists, and political thinkers has promoted the argument that little if any labor market regulation is required to ensure the proper level of protection for occupational safety and health (OSH), because workers are fully compensated by higher wages for the risks they face on the job and that markets alone are sufficient to ensure this outcome.


FORTHCOMINGHow workers’ lack of power harms their health and safety


FORTHCOMINGConfronting fundamental power imbalances in the employment relationship



FORTHCOMINGCompetitive markets cannot explain differences in black--white labor market outcomes

William Darity, Duke University, and Valerie Wilson, Economic Policy Institute

Details forthcoming


FORTHCOMINGGender and bargaining power in the U.S. labor market

Nancy Folbre, University of Massachusetts-Amherst

There have been large and persistent disparities of labor market outcomes facing women and, though some disparities have declined, they remain consequential to women and their families.


FORTHCOMINGCompetitive markets cannot explain compensating wage differentials for occupational risks of injury, illness, or death

Leslie Boden, Boston University, and Peter Dorman, Evergreen State College

Recent years have seen a revival of the view that workers do not need to be protected against hazardous conditions at work because they have voluntarily chosen to accept them. 


FORTHCOMINGHow expanded employer power explains wage suppression and wage inequality

Josh Bivens, Larry Mishel, John Schmitt, and Heidi Shierholz, Economic Policy Institute

There is now widespread acceptance across the political spectrum that the typical worker’s wages have grown very slowly or been stagnant for several decades but a consensus narrative explaining wage stagnation has not developed yet.


FORTHCOMINGAssessing economic claims in philosophy and employment law

Economic Policy Institute

This will consist of individual short papers rebutting the specific economic claims made in employment law and in the debates over Private Government (as identified in other commissioned papers), to defend the presumption of equal bargaining power in the labor market.


FORTHCOMINGUnderstanding the vulnerability and situation of workers

Kathryn Edwards, Rand, and Andy Green, OECD

It defies common sense to picture workers and employers as equally able to walk away from an employment relation.


FORTHCOMINGThe lost perspective of institutionalists and legal realists recovered

Bruce Kaufman, Georgia State University

The first section sets up the main part of the paper. A review is provided of the dominant Anglo-American economic and legal doctrines prevailing in the U.S. in the latter part of the 19th century viz. freedom of contract in employment relationships, competitive nature of labor markets, and opposition to nearly all forms of “interference,” such as unions and protective labor law.


FORTHCOMINGAssessing economic claims in philosophy and employment law

A series of short papers rebutting the specific economic claims made in defending the presumption of equal bargaining power in the labor market in employment law and in debates over Private Government (as identified in commissioned papers by Julia Tomassetti and Chetan Cetty):



FORTHCOMINGUnderstanding the claims about labor markets in debates on ‘private government’

Chetan Cetty, University of Pennsylvania • Preface by Elizabeth Anderson, University of Michigan

Elizabeth Anderson’s book, Private Government, and associated preceding publications, has generated an important debate about the lack of freedoms in and out of the workplace due to the severe imbalance of power between workers and employers.

Political science


What imbalances of workplace power mean for civic engagement—and democracy

Alexander Hertel-Fernandez, Columbia University

Many of the contributions in this project examine the economic consequences of power imbalances between U.S. employers and workers.


FORTHCOMINGThe employer role in shaping labor policy in the U.S.

Kathleen Thelen, Massachusetts Institute of Technology

This paper traces the role of conservative organizations and businesses in shaping jurisprudence around labor law. 


How corporate practices and legal changes have undercut the ability of workers to organize and bargain

Larry Mishel, Economic Policy Institute, Lynn Rhinehart, Economic Policy Institute, and Lane Windham, Georgetown University

Why did union density decline? If you look at the chart of union density it looks like a pretty straight line down from the mid-1950s.


FORTHCOMINGAlt-labor and the new politics of workers rights

Dan Galvin, Northwestern University

Rampant exploitation and discrimination across many industries belies the conventional assumption of equal bargaining power in the workplace.


FORTHCOMINGBusiness power and local labor law enforcement

Janice Fine and Hana Shepherd, Rutgers University

At the same time that enacting stronger and more expansive labor and employment policies at the federal level has been largely foreclosed, advocates have increasingly turned to the state and local levels to seek protections for workers.


FORTHCOMINGHow unequal bargaining power in the workplace undermines civic engagement and democracy

Shom Mazumder, Harvard University

Details forthcoming

External publications