A Global Approach to the Study of Workplace Law: Looking Across (Real) National Borders to Move Beyond (Artificial) Substantive Ones

Because there is no dominant source of employment-law norms in the United States, the study and practice of the law of the workplace in this country is inherently transubstantive. Students must master contract, tort, and agency concepts, as well as various statutory mandates. And employment-law practitioners and policy makers know well the challenges created by the interplay between these disparate legal regimes. In other ways, however, the standard approach to employment law in this country is narrow. Although scholars offer more holistic critiques, the discussion often leaves out legal conceptions that frame the discussion elsewhere. One example is the extent to which workplace regulation is treated as a subject of human rights law; in the United States, unlike other parts of the world, worker protections rarely are viewed through this lens. Another example, which is the primary focus of this essay, is the fact that discussions of worker-management or worker-firm relations rarely consider interplay with corporate law. This is peculiar, given that, as recognized abroad, employment and corporate law are the two principal bodies of legal norms governing corporate internal affairs. Thus, despite the disparate sources of workplace regulation in the United States, we have built “borders” between employment law and other areas of legal inquiry. Such compartmentalization is reinforced by the standard law school curriculum. In this essay, I explore how the study of comparative and international employment law provides students with an opportunity not only to learn about other legal regimes, but also to bridge the divide between employment law and other areas of regulation at home. In the corporate context in particular, it challenges students to reconceptualize the legal relationships among the firm’s stakeholders -- workers, managers, investors, and others. Thus, while there is obvious value in examining different approaches to regulating employment, the challenges of practice in a shrinking world, and the tensions between private ordering and public mandates in a globalized economy, the pedagogical significance of the study of the global workplace extends further. It helps us see and then move beyond the artificial substantive borders we have constructed.