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Harvard Law Review Forum

Freeing Employee Choice: The Case For Secrecy in Union Organizing and Voting

Responding to Benjamin I. Sachs, Enabling Employee Choice: A Structural Approach to the Rules of Union Organizing, 123 Harv. L. Rev. 655 (2010)

In his article Enabling Employee Choice, Professor Benjamin Sachs provided a nuanced analysis of what is wrong both with current law and with the leading reform proposal. In this response, Professor Cynthia Estlund argues that Professor Sachs’s reform proposal is likely to set the terms for future scholarly analysis and for serious public debate over the role of law in union organizing regardless of the fate of labor law reform in the current Congress. She discusses the history of the labor law reform debate, the importance of altering the sticky non-union default, and the secrecy debate, raising some questions about Professor Sachs’s defense of secrecy in voting. She concludes by noting that Professor Sachs has offered a way to defuse employer resistance’s threat to employee free choice while retaining the virtues of secret ballot voting.