Professor Elizabeth Anderson’s outstanding Tanner Lectures, recently published as Private Government,1 aim to bring the problem of workplace governance back into the exalted domain of political theory and political discourse, where it resided a century ago. Highlighting the expansive power that employers exercise over employees at and even beyond the workplace, she asks: How is it that a democratic society devoted to individual freedom came to tolerate the private outposts of autocratic rule and unfreedom in which most citizens spend their working lives? And once we recognize the conflict between workplace autocracy and ideals of democratic accountability, what is to be done?
Anderson does not mean to preach to the choir of labor scholars and activists who share her concerns, but to a congregation of contemporary political philosophers and public intellectuals who “largely neglect the pervasiveness of authoritarian governance in our work and off-hours lives” (p. 40). That problem and workers’ collective quest for greater power and protection at work “were hot topics of public discourse, academic and legal theorizing, and political agitation from the Industrial Revolution through the New Deal” (p. 40). Since then, however, they have been “the province of members of marginalized academic subfields — labor historians, labor law scholars, and some labor economists — along with a few labor lawyers and labor activists” (pp. 40–41). As a longtime denizen of one of those marginalized subfields, I warmly welcome Anderson’s effort to put issues of workplace governance back at the center of public discourse about the future of democratic life.
Anderson aims to make the problem of employer autocracy more tractable and compelling for political theorists by reviving and deploying the concept of “private government.” “Private government,” in Anderson’s account, is not government within the private sphere; it is “a particular sort of constitution of government, under which its subjects are unfree” (p. 41), and which “has arbitrary, unaccountable power over those it governs” (p. 45). “It is high time,” says Anderson, “that political theorists turned their attention to the private governments of the workplace” (p. 71). Hallelujah, I say (from my perch in the choir loft).
Perhaps the most rewarding part of Anderson’s account is her excavation of the history of ideas about freedom and unfreedom at work, and about the liberating potential of competitive markets, in the run up to the Industrial Revolution and in its wake. The apparent freedom of workers at the point of entry to and exit from employment became, for the apostles of laissez faire, the chief justification for the autocracy that prevailed within the employment relationship. Their neoclassical economist successors — the leading culprits in Anderson’s sermon — maintain on efficiency grounds that managers’ authority over workers should be virtually unfettered by law. And they continue to maintain that workers’ freedom to exit the employment ensures that their preferences will be reflected within the employment. In the meantime, the proposition — that workers’ ability to exit employment is the key to their freedom from employer domination — has gained adherents within the congregation of political theorists to whom Anderson appeals. The theme that “exit is enough” to ensure workers’ freedom under capitalism seems to be enduring and cross-disciplinary.
Many readers will be persuaded, however, by Anderson’s argument that exit is not enough, and that the current American law of work does too little to constrain or counter employer domination. It does do too little, in my view — though it does more than Anderson lets on. In her effort to draw well-warranted attention to the problem of employer domination, Anderson offers a rather stylized account of existing employment law2 — one that tracks the economists’ idealized model of firm governance rather more closely than the actual law does. Still, “private government,” as Anderson defines it, is an apt description of the workplace governance regime that we have. Once we take its measure, what would it mean to set our sights on “public government” at work?
The answer might seem straightforward, in principle if not in practice, if Anderson were calling for democracy at work — that is, for some robust mechanism for ensuring managers’ accountability to their worker-subjects. That would require a paradigm shift in both corporate law and labor law, albeit one with no chance of adoption. But workplace democracy gets a quick brush-off — surprisingly, on efficiency grounds — in Anderson’s account (p. 69). She gestures instead toward a more modest reform agenda — some new worker rights and new mechanisms of worker participation — that requires no radical rethinking of workplace governance within a democratic and capitalist society, and that will look familiar to labor law cognoscenti. Still, Anderson’s reframing of the problem of employer domination as one of “private government” is compelling. If political philosophers and public intellectuals were to begin (again) to think of employer power over workers as a serious problem in a free and democratic society, they might help to reignite stalled debates over employee rights and institutions of collective voice.
Unfortunately, the reignition of those debates might come too late, given decades-long trends in the organization of work that are destabilizing the very concept of workplace governance. Increasingly, highly profitable and capable firms are putting organizational and geographic distance between themselves and the workers who supply the labor they need, foregoing autocratic managerial control in favor of outside suppliers and lower costs. Those trends threaten the entire edifice of worker rights and protections that has been built atop the employment relationship; they pose especially daunting challenges to the pursuit of meaningful worker voice at work. But that may be all the more reason to hope that Anderson succeeds in putting the problem of “private government” at work back on the public agenda, for it will take a flood of new energy and ideas, as well as a political sea change, to create an institutional infrastructure for empowering and protecting workers in the economy that is unfolding today.
Part I of this Review offers a gloss on Anderson’s illuminating history of ideas about workers’ freedom and unfreedom within the employment relationship, with a brief addendum on the rise and fall of the New Deal system of collective bargaining that was supposed to ensure workers’ freedom from employer domination. Part II turns from the shrinking domain of labor law (which regulates collective labor relations) to the expanding domain of employment law (which regulates employment generally). It sketches the rights that the law affords to workers in principle — more numerous and substantial than Anderson’s account suggests — and highlights the large gaps that remain between the law as it is and as it should be. Part III turns to Anderson’s contemporary intellectual adversaries in economics and philosophy, respectively, who still deem competitive labor markets and the right of exit to be sufficient to protect workers’ interests despite managers’ encompassing authority over them. Part IV introduces trends in the organization of work that have undermined existing models for taming employer domination, and that will pose daunting challenges to Anderson’s reform agenda as well.
* Catherine A. Rein Professor of Law, New York University School of Law. The author would like to thank William Forbath and Samuel Issacharoff for their comments on earlier drafts, and the editors of the Harvard Law Review for their excellent editorial work.