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Sanjukta Paul, The Enduring Ambiguities of Antitrust Liability for Worker Collective Action, 47 Loy. U. Chi. L.J. ___ (forthcoming 2016), available at SSRN.

As someone interested both in the history of workplace law and in modern forms of worker organization, but not especially well-versed in antitrust law, I was delighted to read, and learned a lot from, Sanjukta Paul’s excellent article. The piece starts with a troubling suggestion I have not seen seriously addressed elsewhere: antitrust law could be used against workers engaged in collective action if those workers are not traditional employees: e.g., against low-wage independent contractors. After showing this is a legitimate concern, Paul provides a rich description of the history of antitrust law (including but not limited to the “labor exemption”). She then makes a convincing argument that while current antitrust law could be applied to such collective action, it should not be. While her history is ultimately aimed at a modern issue, this is not “law office history.” Indeed, her detailed discussion of the development of both antitrust and labor law (a rare combination) would be a worthwhile contribution to the historical literature by itself. Linking it to a modern question makes the piece even more valuable.

Paul starts with a vignette about a 1999 federal antitrust investigation into potential price-fixing by striking port truck drivers who were not “employees.”  This leads her to the early days of labor and antitrust. She argues that before the New Deal, courts “dominated by classicists who were concerned primarily with freedom of trade and contract, imported fundamentally hierarchical and coercive assumptions regarding workers” into the Sherman Act. (P. 2.) In so doing, the courts “relied upon status-based normative assumptions that violated their own freedom of contract principles.” (P. 2.) Worker collective action was thus presumptively illicit. The “labor exemption” the Supreme Court ultimately created in the 1940s was the exception, not the rule, and arguably might not apply to independent contractors.

But this interpretation is not required. Modern antitrust law is primarily concerned with economic efficiency (as opposed to freedom of contract), an approach that “necessarily imports a vision of the social good.” (P. 3.) Given that, antitrust policy should inquire into the “normative concerns implicated by worker organization for decent wages and working conditions.” (P. 3.) More broadly, Paul rejects the at-least-implicit assumption that workers’ right to organize should involve an exemption to be bargained for; instead, the fundamental question should be how regulation of markets interact with the regulation of labor.

The article does many things well. Paul demonstrates how the threat of antitrust liability in the 1999 trucker action and other cases inhibited the ability of contingent workers to act collectively, and how important the threat is in light of the growth of independent contractors — including low wage workers who are easily replaced. The problem is that modern antitrust law looks at “market actors” and may not distinguish between a massive corporation and a single truck driver.  In this regard, she analyzes Federal Trade Comm’n v. Superior Ct. Trial Lawyers Ass’n, 493 U.S. 411 (1990), which found a Sherman Act violation when lawyers in DC collectively refused to take criminal assignments for indigent clients unless their fees were increased.

She also does an excellent job with the history of the “labor exemption,” ultimately forged in the 1940s from certain language in the Clayton Act and the Norris LaGuardia Act by the Apex Hosiery Co. and Hutcheson cases. Most interestingly, she points to a “minor strain” in Apex which Hutcheson ignored: the distinction between the labor market and the product market. While Hutcheson was a victory for labor, it removed the idea that the exemption should be based on the idea that labor is not an article of commerce; instead, it focused on “a list of exempted activities, for which no real principle” was offered. (P. 45.) This concept depended on the power and role of labor unions at the time, and later cases specifically held that independent contractors were not covered by the exemption.

Paul argues, though, that the original Sherman Act was not intended to apply to worker collective action, and further that the application of antitrust law to worker collective action rested on reasoning that older courts should not have accepted and that modern courts would not consciously accept. In the older period, theories of “freedom of contract” animated the law, yet the regulation of work was “the great exception to classicism’s clarion call of economic freedom.” (P. 21.) This was because of implicit notions about hierarchies at work; status, not contract controlled. Thus, workers, uniquely, were not permitted to compete vertically with capital by withholding their labor. After the Sherman Act, classicists argued that it would be “unfair” to apply antitrust law to capital but not labor. But this argument presupposed “the very social hierarchy that neutrally applied freedom of contract principles ought to have condemned . . . .” (P. 26.) It reflected worries that labor was already too powerful in relation to capital and simultaneously “obscured the subordination” intrinsic to contemporary laws regulating work. (P. 27.) This argument thus ascribed to workers the consequences, but not the benefits, of actual legal agency.

Notably, while in this era many union activities fell afoul of antitrust law, the business corporation in and of itself was not considered a restraint of trade.  Corporations were single entities, while unions were combinations. Paul’s discussion of the rules and analysis of antitrust cases in this era shows that they used much of the same analysis (illegal means and/or illegal ends, presumptions of intimidation) as the conspiracy cases (more familiar to labor law scholars) of this era. For Paul, though, the key is the tension of the role of workers qua workers and their role as agents of commerce.

Today’s judges would not consciously rely on status-heavy notions of workers in disallowing collective action. Yet, modern antitrust law, even with the labor exemption, inherited the older conception of the social good. The modern justification for punishing worker collective action, like the classicist one, “rests on specific normative judgments that are neither politically neutral nor self-evident.” (P. 50.) Here, Paul interrogates the shifting rules governing “price-fixing.” (P. 50.) Older rules allowed some forms of cooperative behavior, but more recent cases restrict this by holding e.g., that lack of market power is not a defense to price-fixing (hence, the result in the trial lawyers’ case).

Still, this approach is not monolithic, and alternative approaches that could favor smaller actors could be revived and adopted. Among other possibilities, a traditional exception for professionals exists that could be broadened to other types of workers. Paul also suggests certain types of worker collective action could be protected by the First Amendment. She analogizes to Claiborne Hardware, questioning distinctions between economic and political boycotts, and also harkening back to older rules that looked at the imbalance of vertical market power.

Paul makes a fascinating and persuasive argument on an important topic, one that I have not seen others make. I liked this a lot.

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Cite as: Joseph Slater, The History, and Worrying Contemporary Relevance, of Anti-Trust Law for Non-Traditional Worker Organization, JOTWELL (January 29, 2016) (reviewing Sanjukta Paul, The Enduring Ambiguities of Antitrust Liability for Worker Collective Action, 47 Loy. U. Chi. L.J. ___ (forthcoming 2016), available at SSRN),