The Glasgow Legal Theory research group held its Spring Seminar on 14 June. The keynote address was given by Michael Fischl who is Professor of Law at the University of Connecticut and a leading figure in critical legal studies. Prior to joining the University of Connecticut, Fischl was Professor of Law in Miami, and a visiting Professor at several institutions including Yale. Fischl studied for his JD (Doctor of Law) degree at Harvard University under Duncan Kennedy, and it was there that he began to adopt and develop a critical approach to the analysis of law. In the course of the following decades, he has published widely on critical legal studies as a school of thought or methodology, on labour law, and on legal education.
At the seminar Fischl presented a paper entitled A Common Law for Labour Relations (Redux). The title refers to a famous article published in 1983 by Richard Epstein, a leading proponent of law and economics. In the article, Epstein argued for the repeal of the labour statutes enacted in the USA as part of Roosevelt’s New Deal, and a return to the ‘common law of the nineteenth century’, under which labour relations had been governed, he said, by the general rules of contract and tort. Epstein’s contention was that the New Deal legislation allowed for the creation of monopolies in the form of trade unions and anti-competitive behaviour by workers and unions, which was damaging to the economy and, therefore, contrary to the public interest. In the interests of economic growth and a fair distribution of wealth between workers, ‘free’ labour markets, regulated only by contract and tort, were desirable. In his paper, Michael Fischl argued very convincingly – and with reference to copious evidence – that Epstein’s portrayal of the common law of the nineteenth century and its ‘straightforward’ application to labour relations was entirely false. Nonetheless, it was not only Epstein, he pointed out, but also – importantly – many members of the judiciary – who seemed to believe in the existence of a heyday when the common law of labour relations was ‘pure’; untainted by ‘special’ rules applicable only to labour relations and not to other kinds of contractual relation. In the hands of the judiciary, the consequences of this false belief could be very serious – as where, for example, the courts relied on the notion of freedom of contract and ‘employment-at-will’ to limit the application of statutory labour rights.
In the second half of the afternoon, responses to Michael’s paper were provided by David Cabrelli (Edinburgh University), Ruth Dukes (Glasgow University), and Fotis Vergis (Manchester University). The event was well attended by colleagues and post-graduate students from the School of Law, and the ensuing discussion was lively.
~ Professor Ruth Dukes