Cindy Estlund (NYU Law Professor and OnLabor contributor) has a terrific new piece in the Harvard Law Review. In Rethinking Autocracy at Work, Estlund reviews Elizabeth Anderson’s Tanner Lectures (published as Private Government) which “aim to bring the problem of workplace governance back into the exalted domain of political theory and political discourse, where it resided a century ago.” Anderson’s primary questions, and the ones Estlund takes up, are (again in Estlund’s words):
How is it that a democratic society devoted to individual freedom came to tolerate the private outposts of autocratic rule and unfreedom in which most citizens spend their working lives? And once we recognize the conflict between workplace autocracy and the ideals of democratic accountability, what is to be done?
Estlund makes an impressive number of important contributions over the span of her 32-page review. Among other things, the review presents a cogent, brief history of “free labor,” a clear and useful synopsis of the laws governing the American workplace, and an illuminating review of economic and political-theoretic thinking about employment-at-will and the limited relevance of the employee “exit” right (including an examination of Robert Taylor’s new book).
In one of the best sections of the piece, the review addresses what the fissuring of work means for workplace governance and employee voice, noting the sizable and perhaps existential challenge posed by these developments. Here’s how Estlund puts it:
As firms dissolve the ambiguous ties that used to bind them and their workers together in long-term employment relationships, and replace them with high-tech, low-cost supply chain solutions (or with robots), rights and voice within the workplace might matter much less, and a stronger social safety net, public job creation, training programs, and transitional support might matter more.
Estlund does offer an an at-least partially optimistic suggestion. Joining writers like Kate Andrias, Michael Oswalt and Brishen Rogers, she suggests that we might respond to the challenge of fissuring by moving worker voice “up,” as it were, from the level of the now-fissured firm to the level of sector, industry or even polity. Of course, that will require political power, and “[o]ne wonders . . . where the political pressure for those solutions will come from in the wake of union decline.” Perhaps from the unions that remain, from new forms of worker organization, and from alliances still under construction.
Estlund’s review is a must-read for anyone interested in the question of worker voice and worker power.