An American Approach to Social Democracy: The Forgotten Promise of the Fair Labor Standards Act

• Published in: The Yale law journal Vol. 128; no. 3; pp. 616 - 709
• Main Author: ANDRIAS, KATE
• Format: Journal Article
• Language: English
• Published: New Haven The Yale Law Journal Company, Inc 01.01.2019; Yale University, School of Law; Yale Law Journal Company, Inc
• Subjects: American history; Analysis; Business associations; Committees; Constitutional law; Democracy; Democratic socialism; Economic reform; Egalitarianism; Employment; EMPLOYMENT LAW; Experts; Fair Labor Standards Act 1938-US; Governance; History; Human rights; INDUSTRIAL RELATIONS; Industries; INDUSTRY; Labor law; Labor laws and legislation; Labor relations; Labor standards; LAW REFORM; Legal reform; Litigation; Management; Methods; Political aspects; Political economy; Public policy; Public policy (Law); Social democracy; Social groups; Socialism; Trade associations; Traditions; Unionization; Wages & salaries; Wagner Act 1935-US; Wealth; Wisdom; Worker participation; UNITED STATES
• ISSN: 0044-0094; 1939-8611

There is a growing consensus among scholars and public policy experts that fundamental labor law reform is necessary in order to reduce the nation's growing wealth gap. According to conventional wisdom, however, a social democratic approach to labor relations is uniquely un-American — in deep conflict with our traditions and our governing legal regime. This Article calls into question that conventional account. It details a largely forgotten moment in American history: when the early Fair Labor Standards Act (FLSA) established industry committees of unions, business associations, and the public to set wages on an industry-by-industry basis. Alongside the National Labor Relations Act, the system successfully raised wages for hundreds of thousands of Americans, while helping facilitate unionization and a more egalitarian form of administration. And it succeeded within the basic framework of contemporary constitutional doctrine and statutory law. By telling the story of FLSA's industry committees, this Article shows that collective labor law and individual employment law were not, and need not be, understood as discrete regimes — one a labor-driven vision of collective rights and the other built around individual rights subject to litigation and waiver. It also demonstrates that, for longer than is typically recognized, the nation experimented with a form of administration that linked the substantive ends of empowering particular social and economic groups to procedural means that solicited and enabled those same groups' participation in governance (to the exclusion of other groups). Ultimately, recovering this history provides inspiration for imagining alternatives to the current approach to worker participation in the American political economy and to administrative governance more broadly.