Friday, December 11, 2009

Pope on the Involuntary Servitude Clause

James Gray Pope, Rutgers Law School-Newark, has posted Contract, Race and Freedom of Labor in the Constitutional Law of 'Involuntary Servitude', which is forthcoming in volume 119 of the Yale Law Journal. Pope writes regularly at the boundary of labor history, labor law, constitutional law, and constitutional history. Here is the abstract:
The Supreme Court has yet to adopt and apply a standard for assessing labor rights claims under the involuntary servitude clause. This article suggests that one may be found in the leading decision of Pollock v. Williams (1944), which contains the Court’s most thorough discussion of the interpretive issues. Under Pollock, a claimed right should be protected if it is necessary to provide workers with the “power below” and employers the “incentive above” to prevent “a harsh overlordship or unwholesome conditions of work.” Although this is not the only conceivable standard, it does fit well with the text, history, and case law of the Amendment. The absence of any racial element, which might appear dishonest in light of the fact that most of the leading cases involved workers of color, nevertheless corresponds to the original meaning and appears to have important advantages from a doctrinal point of view. The article discusses the legal and philosophical justifications of various labor rights in relation to the Pollock standard, including the right to quit, the right to change employers, the right to name the wages for which one is willing to work, and the right to strike.