November 2013 Vol. 112 No. 2 THE REVIEW

Employment Law and Social Equality

Samuel R. Bagenstos

What is the normative justification for individual employment law? For a number of legal scholars, the answer is economic efficiency. Other scholars argue, to the contrary, that employment law protects against (vaguely defined) imbalances of bargaining power and exploitation. Against both of these positions, this Article argues that individual employment law is best understood as advancing a particular conception of equality. That conception, which many legal and political theorists have called social equality, focuses on eliminating hierarchies of social status. This Article argues that individual employment law, like employment discrimination law, is justified as preventing employers from contributing to or entrenching social status hierarchiesand that it is justifiable even if it imposes meaningful costs on employers.

This Article argues that the social equality theory can help us critique, defend, elaborate, and extend the rules of individual employment law. It illustrates this point by showing how concerns about social equality, at an inchoate level, underlie some classic arguments against employment at will. It also shows how engaging with the question of social equality can enrich analysis of a number of currently salient doctrinal issues in employment law, including questions regarding how the law should protect workers’ privacy and political speech, the proper scope of maximum-hours laws and prohibitions on retaliation, and the framework that should govern employment arbitration.

   //  VIEW PDF
& Other Current Events

Crawford v. Washington: A Ten Year Retrospective

No one disputes the significance of Crawford v. Washington, 541 U.S. 36 (2004), which fundamentally transformed Confrontation...

Come Back to the Boat, Justice Breyer!

I want to get Justice Breyer back on the right side of Confrontation Clause issues. In 1999, in Lilly...

Crawford v. Washington: The Next Ten Years

Imagine a world . . . in which the Supreme Court got it right the first time. That is,...

The Crawford Debacle

First a toast-to my colleague Jeff Fisher and his Crawford compatriot, Richard Friedman, on the...

Confrontation and the Re-Privatization of Domestic Violence

When the Supreme Court transformed the right of confrontation in Crawford v. Washington, the prosecution...
MAILING LIST
Sign Up to Join Our Mailing List