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Wednesday, April 12, 2006

Political Protests, Broader Norms, and The Law

Yesterday's NYT features headline articles on two different mass political protests designed to change legal rules, and a smaller, arguably quite related piece.  First, in response to protests, the French government withdrew its proposal to waive the otherwise general rule requiring “just cause” for firing younger workers for two years after hiring.  Second, huge rallies were held in many cities in the U.S. regarding changes to immigration and related employment laws.  Finally, a smaller article noted that Roger Toussaint, the head of Transit Workers Union Local 100, had been sentenced to 10 days in jail for the (illegal) strike of his union earlier this year. 

There are all complicated issues on the merits, and decent arguments can be made on various sides of each (although one would have to look hard in the American media to find discussions of the French law that go beyond a smug and almost prideful ignorance of the way much of the world works).  But these issues interest me not only because they involve worker rights (my thing); they also involve using political protests to change the law in accordance with the protestors’ beliefs in broader norms.

Whatever one thinks of the merits of just cause protection in employment, it is widely accepted throughout the industrialized world.  Practically every other democracy has rejected the “at will” rule.  Even in the U.S., “just cause” protection exists in significant parts of the economy:  union contracts usually have “just cause” provisions; many-most public employees are covered by civil service laws that provide “just cause” protection; and the state of Montana has abolished at-will by statute (and yet the U.S. press didn't call Montana “socialist”).  The feeling that this is a human right runs deep in many places, such feelings promote protest, and such protests changed the law.

Immigration is not solely a labor/employment issue, but debates on immigration law often focus on the impact on labor markets and the rights of workers of differing immigration status.  It is also an issue fraught with deeply held normative beliefs about how society should organize itself.  While media coverage has not been as snide as coverage of the French protests, significant sections of the U.S. media has been disturbed to nearly apoplectic about these rallies.   Yet these protests too have seemed to have been effective, at least so far.

Finally, Toussaint will serve his sentence for the Local 100 strike.  Here again, U.S. law is quite different from the law in other industrialized democracies: the U.S. allows individual states to make strikes by all public sector workers illegal (and indeed, all but 11-12 states have done so).  In Europe and elsewhere, strikes by transit workers and most other public employees are legal.  I have argued elsewhere that public sector strikes are not an inevitable consequence of public sector unionization, but perhaps some feeling that workers have an inalienable right to strike was part of the motivation for the TWU job action.

I would caution that liberals and the left often over-estimate the ability of protest rallies and marches to create legal change.  But I wonder if we will see more mass protests for such goals, especially in the area of worker rights.  There is a tradition of such things, even in the U.S.

Posted by JosephSlater on April 12, 2006 at 08:30 AM in Law and Politics | Permalink

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Comments

First, feel free to call me Joe. Second, I tried to make a few points (although maybe not clearly enough).

Protests can, sometimes, be an effective tool for changes in the law. What I thought linked the three examples I gave was the following. People were acting in accordance with deeply held moral beliefs about their rights at work: exclusively in the cases of the French actions and the TWU strike; in some significant part in the case of the immigration rallies. I thought it worth pointing out that these moral beliefs were actually quite common in other industrialized democracies, even if they are less common in the U.S. And, as globalization and various government policies contribute to increasing inequalities in wealth, it will be interesting to see what sorts of protests about work-related rights we will see in the future.

Posted by: Joseph Slater | Apr 12, 2006 10:33:01 AM

Thanks for the response, Professor Slater. Is the argument that protests and rioting can be an effective tool for social change?

Posted by: thelawjoe | Apr 12, 2006 10:13:13 AM

No, my argument is not that just because something is common outside the U.S. it is necessarily good. Indeed, my post said: "These are all complicated issues on the merits, and decent arguments can be made on various sides of each."

Posted by: Joseph Slater | Apr 12, 2006 9:59:26 AM

Is Professor Slater's argument here that "something is very common in the world outside the U.S., therefore it is good"? Lots of things are common in the world outside the U.S., such as strict social hierarchy, the combination of church and state, criminal prosecution of speech, anti-Semitism, and the like. In light of that, I guess I don't see the popularity of something outside the U.S. as a necessary sign that it is a good thing. (Or, for that matter, is the fact that something is common inside the U.S. a sign that it is good.) Or am I misunderstanding the post?

Posted by: thelawjoe | Apr 12, 2006 9:49:08 AM

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