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Abstract. The existing legal order has failed the American labor movement. The National Labor Relations Act (NLRA) cannot guarantee the rights it promises, and the National Labor Relations Board's enforcement mechanisms are too weak to ensure compliance. At the same time, federal preemption of labor law-among the broadest in all American law-has foreclosed local and state governments from innovating upon the national framework. The Roberts Court, meanwhile, continues to roll back labor rights and administrative protections. Trapped between the decaying foundation of the NLRA and the rigid ceiling of federal preemption, the labor movement finds itself increasingly constrained by the law itself.
But nascent forms of labor lawmaking have begun to slip out of these constraints. Building on prior scholarship, this Note presents a new model of subnational labor lawmaking that avoids federal preemption: union-led direct democracy. This model harnesses direct democracy-electoral processes that allow citizens to vote directly on laws, such as the initiative and the referendum-to expand organizing, bargaining power, and workers' rights. It relies upon Labor's natural strengths in grassroots mobilization and, due to its reach and replicability, likely dwarfs all other forms of subnational labor lawmaking. This Note thus provides an original and foundational perspective on the subject.
Union-led direct democracy is not just a theoretical model. It has already improved the conditions for millions of member and nonmember workers, while helping grow the labor movement's rank and file. This Note argues that direct democracy can be good for unions-and that unions, in turn, can be good for direct democracy.
Introduction
The legal order has long shaped the American labor movement.1 Prior to the New Deal, this shaping took place in the collisions between unions and courts, as Lochner-era judges cracked down on the labor movement through anti-union precedent, strike injunctions, and court-ordered police crackdowns.2 The legal forces shaping the American labor movement today, however, are dramatically different than those a century ago. Rather than a dyadic relationship between courts and unions, American Labor is encircled by statutory law, agencies, courts, doctrines, and other institutions at the federal and state level. Not all of these are inherently hostile to organized labor, but- much like the courts a century ago-they have collectively restricted Labor to the point of paralysis.
To briefly...