Karl E. Klare

Labor law as ideology: toward a new historiography of collective bargaining law

Karl E. Klare — Fri, 19 Oct 2012 05:40:28 PDT

This article discusses a newly emerging historiography of post-New Deal United States collective bargaining law. Critical labor law will be depicted primarily by highlighting its main lines of attack on traditional learning. Most contributions to the literature of collective bargaining law are overwhelmingly doctrinal and rule-focused in emphasis. They are written, explicitly or implicitly, from the perspective of beliefs and values about the social function of collective bargaining drawn or inferred from the stated purposes, the legislative history of and judicial glosses upon the major federal labor statutes. This literature takes as given and unquestioned the desirability of maintaining the basic institutional contours of the liberal capitalist social order.

Judicial deradicalization of the Wagner Act and the origins of modern legal consciousness, 1937-1941

Karl E. Klare — Fri, 19 Oct 2012 05:40:27 PDT

The law-school curriculum in the 1980s: what's left?

Karl E. Klare — Fri, 19 Oct 2012 05:40:26 PDT

The quest for industrial democracy and the struggle against racism: perspectives from labor law and civil rights law

Karl E. Klare — Sat, 13 Oct 2012 07:35:14 PDT

This Article is occasioned by the state of crisis which the labor and civil rights movements have simultaneously entered. It attempts to develop new ways of understanding the historical origins of the present crises. My purpose is to contribute to the discussion of class and race in American life by exploring a series of parallels, convergences, and connections between labor law and civil rights law. The particular focus of the Article is on certain limitations of collective bargaining law and an instrument for achieving democracy in the workplace and upon certain limitations of civil rights law as a process for achieving an end to racial domination.

My central argument is that there is a basic structural similarity between the limitations contained within each of the two bodies of law. This suggests that we might be able to identify a set of interconnected reasons why the labor and civil rights movements now find themselves in such difficulty.

Part I sets forth the scope and boundaries of what this Article attempts to achieve. Parts II and III attempt to specify and describe the "homology"- the matched structure- of the problematical aspects of labor law and of civil rights law. Part IV will illustrate the preceding arguments through a close reexamination of the great labor and civil rights case of Steele v. Louisville & Nashville Railroad Col. Part V explores some implications of the argument which concern the intertwined futures of the movement for workplace democracy and the movement for racial equality.

The labor-management cooperation debate: a workplace democracy perspective

Karl E. Klare — Sat, 13 Oct 2012 07:25:12 PDT

Much contemporary debate in the field of industrial relations focuses on the wrong questions. Discussion is often framed in misleading terms or based upon unproductive assumptions. A prime example explored here is the current heated debate about whether we should replace "the adversary structure" of American labor relations with a "cooperative model." In my view we do not face such a choice. Rather, workplace democracy and economic prosperity alike require new forms of work organization combining adversary and participatory assumptions, institutions and practices. The challenge is to link the two approaches in ways that enhance the virtues and minimize the shortcomings of each.

The adversarialism/cooperation controversy illustrates the need to recast the terms of reference of industrial relaions debate. This Article attempts to provide groundwork for a revised approach. It does not purport to resolve the many dilemmas to which it calls attention. Rather, it is intended to clarify and reformulate some of the questions. Its perspective centers on the value of democracy in the workplace, and particularly on the goal of designing work so as to be an opportunity for human self-realization.

Management prerogatives, plant closings, and the NLRA: A response

Karl E. Klare — Sat, 13 Oct 2012 07:25:12 PDT

Traditional labor law scholarship & the crisis of collective bargaining law: a reply to Professor Finkin

Karl E. Klare — Wed, 10 Oct 2012 10:30:17 PDT

Lost opportunity: concluding thoughts on the Finkin critique

Karl E. Klare — Wed, 10 Oct 2012 10:30:16 PDT

Power/dressing: regulation of employee appearance

Karl E. Klare — Wed, 10 Oct 2012 10:30:15 PDT

This article is about the role of law in regulating personal appearance, particularly at work. With some exceptions, the law authorizes employers to determine the kinds of clothing people must, may, or may not wear on the job; which hair styles and other appearance practices are permitted and which are forbidden in the workplace; and whether to impose appearance or attractiveness standards as a condition of employment. This article concerns not only the content but the meaning of these legal rules: how they affect the people against whom they are enforced; what assumptions, fantasies, and prejudices they express; and which values are served and which are demeaned by the complex of social practices comprising appearance regulation. Finally, the article makes a proposal as to what we should do about these rules: they should be almost entirely abandoned and replaced wiht rules designed to promote personal autonomy and cultural diversity.

The politics of Duncan Kennedy's Critique

Karl E. Klare — Tue, 11 Sep 2012 12:50:11 PDT

Comment: untoward neutral principles: market failure, implicit contract, and economic adjustment injuries

Karl E. Klare — Tue, 11 Sep 2012 12:50:10 PDT

Concluding reflections: legal activism after poverty has been declared unconstitutional

Karl E. Klare — Tue, 28 Aug 2012 06:10:11 PDT

Legal subsidiarity and constitutional rights: a reply to AJ van der Walt

Karl E. Klare — Wed, 18 Jul 2012 05:38:27 PDT

In South African constitutional jurisprudence, “legal subsidiarity” is a theory of the appropriate relationship between and hierarchy among various sources of law, particularly the Constitution, statutes, and the common law. Core tenets of the theory are that courts should avoid making a constitutional decision if a matter can be decided on a non-constitutional basis; that courts should ordinarily defer to legislation; and that courts should avoid any tendency to proliferate separate tracks or sub-systems of law (e.g., courts should not create parallel causes-of-action or remedies respectively grounded, respectively, on the Constitution itself, legislation, and/or the common law). This article generally shares the critical approach and larger jurisprudence of the author to whom it responds. However, the article questions the coherence of legal subsidiarity theory and its effectiveness in resolving the recurring problems to which it is addressed. A major concern posed is whether incautious application of subsidiarity theory may inappropriately authorize legislature to limit the scope of constitutional rights.

Teaching Local 1330: reflections on critical legal pedagogy

Karl E. Klare — Wed, 18 Jul 2012 05:38:24 PDT

In the Steelworkers Local 1330 v. U. S. Steel Corporation case, workers attempted to prevent or delay the company’s planned shutdown of a steel plant inYoungstown,Ohio, so that the employees could purchase the plant and keep it in operation. Their effort was unsuccessful, and the plant-closure did occur causing widespread human suffering and economic deterioration inYoungstown and its environs. The case remains of great legal interest because of the workers’ exceptionally creative and thoughtful legal claims. These include the assertion, rejected by the court, that the workers and/or surrounding community acquired a property interest in the plant by virtue of their investment of human capital, labor, and other resources. An unintended, low-visibility legacy of the steelworkers’ struggle was its contribution to progressive legal education. In this article, a law professor discusses a classroom exercise based on the case he developed with the goals of empowering law students, demystifying mainstream legal discourses, and enhancing students’ capacities to develop imaginative legal theories in service to social justice. The article also explores the goals and underlying values of critical legal pedagogy.

Transformative constitutionalism and the common and customary law

Karl Klare et al. — Thu, 02 Feb 2012 05:40:21 PST

A basic assumption of the Constitution, which finds expression in its ‘development clauses’ (ss 8(3) & 39(2)), is that South Africa cannot progress toward a society based on human dignity, equality, and freedom with a legal system that rigs a transformative constitutional superstructure onto a common and customary law base inherited from the past and indelibly stained by apartheid. We examine South African judges’ performance in implementing the development clauses through the lens of legal culture. A central concern is the potential of traditional South African legal culture to constrain the transformative project. South Africa has an advanced Constitution informed by the values of social interdependence and ubuntu, but its jurists continue to deploy traditional methods of legal analysis. Ironically, the United States has a classical liberal and individualistic charter, but the Legal Realist tradition bequeathed American lawyers a storehouse of modernist legal methods well suited to South Africa’s transformative project. Surveying the cases over the first 15 years of the new dispensation, we find some leading judgments that demonstrate the capability of the courts to transform the common law and provide glimpses of a more egalitarian, inclusive, and caring legal infrastructure. The chief disappointments are the absence thus far of a coherent exploration of the Constitution’s values or an explicit and sustained effort to develop new legal methodologies appropriate to transformative constitutionalism; the reluctance to interrogate the distributive consequences of private law rules in the routines of economic life; the emergence of a neo-liberal strand in constitutional application; and the lack of critical sharpness with respect to separation-of-powers issues. The inhibiting effect of mainstream legal culture is not entirely responsible for these difficulties, but concerns expressed a decade ago that the courts would be held back by the traditionalism of South African legal culture were well-taken.