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The overarching question of whether, and to what extent, a democratic society should call on the law in the field of labor relations, presents both profound and complex issues, going deep into the taproots of political philosophy and public administration. This commentary accepts the reality that American democracy has made a substantial and increasing call on the law in the regulation of labor relations. This tendency builds on the civilizing function of the law to permit the resolution of disputes without violence. Labor disputes reflect deep tensions, and require difficult choices of values. Resolution of conflicting forces through the medium of law, rather than in pitched battle, presents both opportunity and risk in the development of pertinent principles.

To harness the emotion-charged centrifugal forces that tend to pull labor and management apart, and to bring them together effectively without counterproductive hostility, calls for more than mere rules of law. The focus must be to an equal, or even greater extent, upon men and machinery to evolve and apply sound approaches. The lens of the law on labor relations was once focused almost exclusively by judges using court machinery. The emphasis is not ancient history; it describes the state of things only fifty years ago. The court developed labor law as a special case of the law of torts. There were actions at law, notoriously in the Danbury Hatters case, but for the most part pertinent procedures were part of the domain of equity. The classic Frankfurter and Greene work, The Labor Injunction, describes how the federal courts were invoked by employers to intervene in labor disputes.


© 1978, Harold Leventhal, United States Circuit Judge, United States Court of Appeals for the District of Columbia Circuit.

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