Liminal Labor Law

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How do people, organizations, and even movements bounce back from losses and setbacks? For organized labor, the disappointments are routinely legal: an overturned precedent, a loss of coverage, or even the accelerated degradation of the National Labor Relations Act (Act) regime itself. In aggregate, these and other law-based defeats pose a serious, even existential, threat to unions. And yet, the labor movement does not just forge ahead, it renews, shape-shifts, and, in many circles, energizes. This article suggests that the legal setbacks, and the persistence, are sometimes connected. Put otherwise, the way labor law is bad is sometimes linked to the movement’s resiliency. In making this case, the article argues that the law’s deficiencies often force movement actors and institutions to operate within “in-between” spaces: precedential instability means rules often exist between what a current decision says it is and predictions about when a future decision will say it is not; organizing protections can hang in a balance between NLRB-created identity poles; and if labor law might range from no rights to great rights, current rights rest, and frequently backslide, between those two extremes. These and other legal in-betweens are ultimately corrosive to collective bargaining and must be fixed. But in the meantime, there is increasing academic, business, and even pop-empirical evidence that in-between or, as described in cultural anthropology, “liminal” states are ripe for creative thought, new relational commitments, and beneficial change. How these and other liminal effects might be located within the labor movement are explored through three very recent case studies involving reversed joint-employer precedent, graduate student misclassification, and the Trump NLRB’s aggressive attempts to further limit the role of collective bargaining in American life.