Week 7’s readings address the historic and contemporary relationships between labor and anti-monopoly. Three key themes cut across these readings. First, several of the readings discuss how antitrust law has historically been used—and continues to be used—to stifle worker organizing and collective action, despite the original pro-labor purpose of the antitrust laws. As the readings by Kate Andrias and Daniel Ernst recount, in the decades after the Sherman Act passed, labor unions fought for and won an exemption to the antitrust laws that courts had used to enjoin strikes and other concerted activity. In addition, several of the readings discuss how antitrust law continues to be deployed against organizing by workers classified (or misclassified) as independent contractors, such as rideshare drivers.
Second, and relatedly, the readings trace how contemporary antitrust law has sanctioned and facilitated forms of vertical control that hurt workers and small businesses. Brian Callaci discusses franchising as a legal innovation that allows corporations to exert control over small businesses without bearing responsibility for their liabilities, workers, or other stakeholders—an innovation made possible by antitrust law’s weakened prohibitions on vertical restraints. Marshall Steinbaum’s article expands on antitrust law’s evolution toward legalizing vertical restraints and the resulting harms to workers and other less powerful actors. As Sanjukta Paul argues, contemporary antitrust law’s preference for top-down domination over worker and small business cooperation reflect an ideological allocation of economic coordination rights that courts and Congress can and should rethink.
Finally, beyond correcting the ills of antitrust law, the readings and lectures argue for other legal reforms to strengthen the countervailing power of workers and small businesses relative to the corporate monopolies. Professor Andrias’s article and lecture discuss the early twentieth century labor movement’s “robust vision” of labor anti-monopolism, which included industry-wide collective bargaining, public ownership and provisioning, and other forms of democratic market governance. Thus, according to Professor Andrias, antitrust and labor law need not be seen as in conflict but rather as complementary parts of a broader, democratic anti-monopoly agenda. Similarly, Sandeep Vaheesan’s lecture puts forward ways to reallocate coordination rights to enhance the power of workers and small firms in market governance.