Rethinking the Tripartite Division of American Work Law

In this Article, Professor Fischl argues that the boundaries separating the constituent subjects of American work law—employment discrimination, labor law, and employment law—are becoming increasingly porous, and he explores two distinct but related dimensions of this accelerating integration of the field. He offers numerous examples of "doctrinal integration, " settings in which nominally out-of-area law plays a significant role in governing contemporary work law topics. He then explores "functional integration," demonstrating that the institutions central to employment discrimination and labor law—discrimination litigation and labor unions, respectively—have increasingly assumed functions traditionally played by the other. He argues that functional integration is apparent as well in the increasingly robust role of employment law in both employment discrimination and labor law contexts. Against the backdrop of these developments, Professor Fischl contends, the continued embrace of the conventional subject-matter division reflects and reinforces an increasingly false opposition between the struggle for workplace democracy and the struggle for racial, gender, and other forms of workplace justice.