This paper is forthcoming in the Michigan Law Review.


This essay recounts the origins of five statements of labor law made by the Supreme Court, each of which has had a devastating impact on the American labor movement. The five statements are: (1) Workers have no right of self-defense against employers that commit unfair labor practices (NLRB v. Fansteel Metallurgical Corporation); (2) Employers enjoy the right permanently to replace economic strikers (NLRB v. Mackay Radio & Telegraph Company); (3) The National Labor Relations Board has no power to deter unfair labor practices (Consolidated Edison Company v. NLRB); (4) Employers may exclude union organizers from their property (Lechmere, Inc. v. NLRB); (5) Employers may close operations out of “spite” against workers who choose to unionize (Textile Workers Union v. Darlington Manufacturing Co.). The essay argues that in each of the five cases, the Court revived Lochner-era constitutional doctrines – supposedly defunct since the “switch in time that saved nine” in 1937 – and applied them to cut back on statutory labor rights. Although the five statements were not considered especially dangerous at the time, their impact has since been magnified by social and economic change. Taken together, they may account for a substantial proportion of the decline in the American labor movement. As in the pre-New Deal period, then, judges have deprived workers of the rights to organize and strike based on constitutional concerns. This time, however, they have avoided the forthright constitutional reasoning of the pre-1937 period, thereby insulating their rulings against changes in constitutional jurisprudence.


Labor and Employment Law

Date of this Version

September 2004