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180 regulatory programs covering labor standards, civil rights, occupational health and
safety, labor relations, and hiring and separation decisions (see Commission on the Future
of Worker-Management Relations, 1994a, b). At the time of the New Deal experiment
the corresponding frequency was 18 and it was still only 40 as late as 1960.
Thus, it is no exaggeration to say that there has been a rapidly expanding role of
government and the courts in providing workers with rights and protections in the
workplace. This development has moreover coincided with a marked decline in
unionism. The feedback from laws to reduced unionism is difficult to pin down, but it
seems inevitable that protection against various forms of discrimination, and legislation
on worker safety, advance notice of plant closings, and mandated family leave have
contributed to the reduced demand for unionism. In much of our discussion the
maintained hypothesis has been that high union density strengthens the political influence
of unions on legislation. Now the argument is the other side of the coin: further
reductions in unionism are likely to yield increased reliance on government to define
rights at the workplace.
These prospects engender little enthusiasm because it is widely accepted that the system
of employment protection is costly, intrusive, and overly litigious. Reform proposals are
in the wing, centering on notions of conditional deregulation and so-called market based
systems of enterprise rights (see, respectively, Levine, 1997; Edwards, 1997). Since these
proposals seek to deliver a balance between flexibility/productivity and fairness, they
inevitably return us to Dwight Lee’s (1996, p. 103) admonition: “Does anyone seriously
believe that an efficient balance can be achieved through a political process?” But we are
not speaking of the first best and arguably heightened globalization will have effects at
federal level that interjurisdictional competition has apparently had at state and local
level, facilitating change in superannuated legislation at least.