The Common Law, Labor Law, and Reality: A Response to Professor Epstein

Abstract

In A Common Law for Labor Relations: A Critique of the New Deal Labor Litigation, Professor Epstein claimed to have undertaken serious criticism and review of the American system of labor relations as it has been structured by two pieces of New Deal era legislation. Although such a work could have been of great value to diverse disciplines, Epstein’s lacks empirical scope and raises methodological questions. Instead of grappling with the subject matter seriously, Epstein merely uses the late nineteenth century form of the common law as a benchmark against which to compare the modern statutory schemes set forth in the Norris-LaGuardia Act and the National Labor Relations Act. As a result, he never answers the questions a genuine critical evaluation would have to address. In this response, the authors argue that Professor Epstein’s work does not contribute in any way to our existing knowledge about labor law, it sheds no light on the reality of labor relations, and it adds nothing to our understanding of the impact labor law has had on society.