Posted on the SALTLAW blog, more thoughts inspired by Jim Pope’s recent article:
The U.S. is the international leader in what some economists call “guard labor,” devoting the highest share of its labor force to supervisory workers than any other advanced capitalist economy – 15.7% in 2002, compared to a mere 4.4% in Sweden, and up from .8% of the U.S. workforce in 1890 and 11.7% in 1979. Adding workers primarily involved in internal and external security and punishment (military and prisons), the U.S. stands out even more, arguably allocating more than a quarter of the workforce to what “new governance” scholars like Charles Sabel might call “monitoring” seemingly separate from (and generally opposed to) “learning” – or what law-and-economics might term “transaction costs” rather than productive transactions. Some decades back, Sabel and others held out hope that new global economic pressures could inspire the replacement of command-and-control bureaucratic hierarchies with decentralized, creative and dynamic cooperation between managers and empowered workers, thereby mobilizing workers’ expertise to enhance productivity. Surveying the data on “guard labor,” economist Michael Perelman concludes, to the contrary, that numerous studies have shown that worker control tends to have more allure than profit for U.S. firms.
ds to have more allure than profit for U.S. firms.
As this context of stepped-up surveillance, control, and punishment has come to shape not just blue collar and service work but professional labor such as law firm practice, law faculty positions may offer rare opportunities for creative productivity not squelched or distracted by hierarchy. Yet Perelman’s analysis of guard labor warns that the obsession with supervision at the expense of productivity takes more subtle forms in white collar work, forms that may be familiar even to law faculty. He reports, for example, that the average executive participated in twice as many meetings in the 1980s as in the 1960s. Perelman argues that these formal meetings tend to replace informal, autonomous collaboration among workers, functioning (like soldiers’ marches) more as ceremonies of discipline and subordination than as sites of creative problem solving, ensuring that workers regularly come face to face with superiors and watch dissenting colleagues fall in line. The recently increased emphasis on measuring, comparing, and parsing various quantifiable proxies for law faculty productivity (rankings, citations, skill sets, classroom body count) also can foster a culture focused on opportunistic gaming and strategic compliance — short-term, superficial, and self-serving — at the expense of commitment to innovative, substantive, and lasting contributions to students, profession, law schools, and scholarship (much less to the bigger goal of justice).
Though discussions of Thirteenth Amendment protections may seem wildly irrelevant to the labor concerns of relatively privileged law school faculty, James Gray Pope’s recent rich exploration of the constitutional concept of servitude offers an intriguing vision of workplace power that has implications for U.S. academics as well as for less well-paid and more overtly and harshly guarded laborers. In Contract, Race, and Freedom of Labor in the Constitutional Law of “Involuntary Servitude, 119 Yale L.J. 1474 (2010), Pope argues for interpreting the prohibition on servitude to require freedom not just to formally contract into or out of labor, but to exercise some degree of functional freedom within the employment relationship itself. The right to quit might not be sufficient, in many contexts, to create a system of employment conducive to a free society. Pope suggests that workers’ right to organize and strike, for example, may be necessary to create incentives against abusive working conditions. If servitude is not simply the result of isolated character flaws, but instead is produced by broad economic pressures and sociolegal conditions likely to similarly influence many employers, and if other background factors and investments make the costs of quitting particularly high for individual workers, then the “freedom” to exchange one employer for another (or to forgo employment) may be illusory for all but the most privileged workers.
Pope’s analysis suggests that this vision of freedom in work – the option for meaningful voice in addition to exit and loyalty — is important not just to protect the most vulnerable workers from the extremes of illegality and abuse that dominate Thirteenth Amendment doctrine. Relatively privileged and powerful workers, like many law faculty, may be individually successful in choosing among hierarchical workplaces to reasonably fulfill their desires for income and other professional and personal rewards. Yet Pope’s discussion hints that the value of free labor may be its role in protecting and cultivating institutions as well as individuals. A system of guarding, being guarded, and gaming the guards may not be well suited to rigorously engaging the complex and inextricably moral and political questions of pedagogical and scholarly excellence, equity, productivity, professionalism or even truth and justice that are arguably the “business” of law schools.