Yale Law Journal – Capitalist Development, Labor Law, and the New Working Class

Irina Baranova

abstract. Gabriel Winant’s The Next Shift charts the transformation of Pittsburgh’s labor market and political economy from the postwar period through the era of unabashed neoliberalism. During that time, relatively well-paid and unionized employment in steel and metalworking plummeted, while low-wage, precarious, nonunion employment in health care and related sectors surged. The composition of the working class also shifted, from being disproportionately white and male to disproportionately nonwhite and female. While Winant is a labor and social historian, his book has many implications for legal scholars, including those focused on the role of law in neoliberalism. In particular, the book situates both Pittsburgh’s evolution and neoliberalism itself in the historical process of capitalist development, or the process through which imperatives of accumulation generate constant technological, economic, and social changes. In Pittsburgh, Winant shows, deindustrialization was an inflection point in that process, generating social crises that were mitigated first by the rise of health care, and then by the suppression of wages among health care workers. This Book Review argues that labor law—or the whole complex of laws constituting and governing work—was transformed by those same structural forces over that same period. Postwar labor law understood employment, at least for relatively privileged industrial workers, as a social relationship jointly constituted by the working class and employers. Under neoliberalism, labor law came to understand employment more as an individual contract between putative equals, a development which enabled profitability in low-productivity service sectors like nursing homes and home care. In that sense, labor law helped to birth today’s working class, even as it denies that a working class still exists.

author. Professor of Law, Georgetown University Law
Center. Much of the research on which this Review is based was undertaken while
I was on the faculty of Temple University Beasley School of Law. For helpful
comments on prior drafts, I would like to thank Kate Andrias, Michael Fischl,
William Forbath, Charlotte Garden, Karl Klare, Sanjukta Paul, and Gabriel
Winant. Thank you also to the staff of the Yale Law Journal for superb
editorial assistance.

Introduction

Of the many facts about steelmaking in Gabriel Winant’s The Next Shift—a history of Pittsburgh’s
political economy since the 1950s—perhaps the most astonishing is that many
steel manufacturers used “hot metal bridges” to carry molten iron across the
Monongahela River.

By the late 1800s, steelmakers had already built up both shores, often smelting
iron in blast furnaces on the north shore, letting it cool into “pig iron”
ingots, transporting the ingots across the river, then melting them back down
on the south shore to remove excess carbon and make steel. Andrew Carnegie’s
engineers realized they could save costs if they never had to cool the molten
iron, so they developed bridges to carry torpedo-shaped cars full of lava
across the river. Each bridge was overbuilt and heavily shielded, in part to
protect the workers who transported the cars, but also because if the metal
spilled the resulting steam explosion would have destroyed the bridge itself.
At least two of the bridges
still stand, reminders of the city’s storied but danger-ridden industrial past.

Today, a much newer and more mundane pedestrian bridge links
two campuses of the University of Pittsburgh Medical Center (UPMC), which has
replaced U.S. Steel as the city’s largest employer, and whose name now adorns
the former U.S. Steel Tower downtown. That bridge crosses Centre Avenue,
connecting UPMC Shadyside with UPMC Hillman, one of the world’s top cancer
institutes, allowing patients and workers to move between the two complexes.
Unlike the now-vanished steelworkers who dominate the city’s cultural imagination,
health care workers are rarely acknowledged,
and many are chronically
underpaid.
In the mid-2010s, one health
care worker told a local commission that he had not “gotten more than a 15 cent
raise in the 9 years” he had worked at UPMC.
Another UPMC employee—who
has diabetes, high blood pressure, and a thyroid disorder—told that commission “there
are days when I have to choose between buying food and paying for my
medications.”
The health care behemoth has
also persistently fought worker organizing, even arguing in litigation that it
does not employ any of the tens of thousands of workers at its various
hospitals and clinics, and therefore owes them no duties under labor and
employment laws.
Yet during the COVID-19
pandemic, UPMC adorned the bridge with large white capital letters reading “Heroes
Work Here.”

The two bridges reflect tectonic shifts that reshaped
Pittsburgh’s labor market and political economy between the postwar period and
the 2008 financial crisis. During that time, relatively well-paid and unionized
employment in steel and metalworking plummeted, while low-wage, precarious, and
nonunion employment in care sectors surged.
The composition of the
working class also shifted: while industrial workers were disproportionately
white and male, today’s health care workers are disproportionately nonwhite and
female.
This was also a period of
growing economic inequality,
as the somewhat more egalitarian
postwar order gave way to the political-economic order now broadly known as “neoliberalism,”
and economic risks were shifted from the state and corporations to individuals
and families.
Parallel economic
transformations occurred across wealthy economies during the same time—and
within the United States, parallel changes played out in most other northern
industrial cities.

But inequality has grown far more in the United States than in many other peer
nations,
and Pittsburgh’s
devastation and transformation were especially pronounced because metal
production dominated its economy for so long.

By focusing on one city’s evolution, Winant’s book
illuminates two aspects of this history, and of neoliberalism’s origins and
dynamics more generally, that might otherwise remain obscure.
First, the book situates
both the postwar order and neoliberalism in the long arc of capitalist development, or as Winant put it in an
article that preceded the book, in
“the historical time of capitalism,
from primitive accumulation to industrial maturity to overcapacity.”
In other words, the
decline of industry and the rise of health care were driven in large part by
structural dynamics of capitalism itself—most importantly, how investors’
relentless demands for profits and accumulation generate constant changes to
technology and social relations, while also generating political countermovements
against excessive commodification.
As Winant shows,
deindustrialization was an important inflection point in that process. Second,
the book argues that neoliberalism did not just come after the postwar
political-economic order, but also evolved out of that order, carrying
forward many of its tensions, exclusions, and policy choices.
Those include racial
subordination inside and outside the workplace, acute class conflicts, and
limited decommodification of health care and other social goods.
As this Book Review argues,
Winant’s analysis of the interplay among structural forces, social relations,
and institutions also helps explain the evolution of labor law over the same
period. I’ll come back to this after summarizing Winant’s argument.

Winant argues that “both the booming market for care and the
huge workforce to supply care grew out of the social and political context of
the steel mill.”
Our postwar order
encouraged unions to construct private zones of economic security for
industrial workers and their families through collective bargaining—yet that
order failed to extend full social citizenship to most women and workers of
color.
Moreover, class conflicts
remained intense in steel throughout the postwar period, rendering the work
profoundly dangerous and often economically precarious.
As industrial capital fled
the region in the 1970s and 1980s, steelworkers were left unemployed and
adrift, and “the social reproduction of the working class became an
increasingly vexed question.”

Yet steelworkers retained some political power through their unions, some
capacity to make legitimate moral claims against the state and capital due to
their race and gender, and some purchasing power through their private health
care funds.
Those health care funds
then seeded the new care economy, while parallel political pressures from
displaced workers and retirees led the state to increase health care funding.
Health care spending
therefore “offered an economic fix to the social crisis brought about by
deindustrialization.”

The modern health care sector is nevertheless “an anomalous
one in the history of capitalism, in which self-sustaining productivity growth
has historically been a defining feature.”
Like many other services,
care work is difficult to keep profitable because the good provided is inseparable
from a person’s manual or affective labor—feeding, bathing, changing bedsheets,
asking what hurts—and therefore resistant to technological innovation.
Many other countries
responded to this challenge by socializing a great deal of care provision, but
in the United States that option was foreclosed by interest-group pressure from
retirees and health care companies,
and by white citizens’
racialized suspicion of welfare programs.
Accordingly, the limited
and privatized welfare state of the postwar era evolved into our contemporary
health care system, with its peculiar mix of public funding and private
provision.

Winant further argues this policy response to the crisis of
deindustrialization led to wage stagnation and the degradation of work in
health care. Over time, he shows, health care companies generated profits
despite lagging productivity in part by legally severing technologically advanced
sectors, like advanced imaging, from labor-intensive sectors, like nursing
homes.
To staff the latter set of
jobs, businesses recruited workers who had been excluded from the postwar
compact and were susceptible to hyperexploitation due to their races and/or
genders, until—as Winant put it in an article that preceded the book—the “relationship
between the [postwar] economy’s inside and outside became inverted.”
The industrial proletariat
at the core of the postwar order shrank dramatically and a new working class
formed among once-peripheral workers, whose labor was understood more as care
than as work.
Companies continued to
suppress wages among that group, which also eroded the quality of care, until
today this system delivers only “a strange, degraded kind of security” to most
consumers and patients.

The Next Shift has various implications for legal
scholars, especially the growing set within law and political economy (LPE) who are focused on the role of law in neoliberalism

and on the interrelations among class, race, and gender.
As noted above, this Book
Review focuses on The Next Shift’s implications for labor-law
scholarship and theory. In particular, this Review argues that labor law—or the
whole complex of laws constituting and governing work
—evolved over this period in
response to the same structural forces and patterns of group-based
subordination that Winant elaborates. Indeed, Winant’s metaphor of the labor
market being turned “inside out” also describes labor law’s evolution over this
time. Since the passage of the National Labor Relations Act (NLRA), our labor
law has embraced both democratic commitments to worker self-organization and
employers’ traditional common-law prerogatives.
But the relative import of
those values has shifted over time. In the postwar era, democratic commitments
were somewhat more prominent, and labor-law theory even imagined employment, at
least for relatively privileged industrial workers, as a social relationship
jointly constituted by the working class and employers. That being said, class
domination—including through violence—remained constant through this era and
was facilitated by law.

Through deindustrialization and the service transition, the
democratic strands of our labor law receded further, and the common-law strands
rose to clear dominance, in effect turning postwar labor law “inside out.”
Practically speaking, that shift was driven by companies’ ongoing demands, in
litigation and lawmaking processes, for greater freedom of action vis-à-vis workers
and the state: greater freedom to hire and fire at will, to avoid unionization,
and to reshape operations in ways that limit workers’ power.
In retrospect, such
freedoms enabled continued profitability, first by facilitating automation and
deindustrialization, and then by suppressing wages in care sectors where
productivity growth is low.
Those changes cohered, over time,
into a new legal concept of employment as an individual contract between
putative equals rather than a social relationship. Today, our labor law no
longer understands workers as a group with obvious shared interests best
advanced through collective action, nor does it assume that workers deserve
protection simply because of their subordinate position in the division of
labor.
In that sense, labor law
helped to birth today’s working class, even as it denies that a working class
still exists.

Part I lays the groundwork. It discusses the resurgence of
interest in political economy among legal scholars
and argues that the process of capitalist development shapes both
political-economic orders and legal regimes over time. Part II discusses the
relationship between the postwar political-economic order and postwar labor
law, drawing both on Winant’s argument and on the tradition of critical labor-law
scholarship. That Part shows that postwar labor law granted industrial workers
real (albeit limited) protections against market discipline, while denying
basic protections to nonworkers and many workers outside the industrial core.
Those developments were apparent in both labor-law doctrine and labor-law
theory during the postwar era. Part III traces the changes in our political
economy and labor law as the postwar order entered a period of crisis and gave
way to neoliberalism. That Part shows how labor law was reconstituted around
notions of individual choice and consent, and how those shifts reinforced
trends toward greater economic inequality and precarity. Finally, the
conclusion considers how the democracy-enhancing strands of our labor law and
welfare state could be rebuilt in today’s services economy, suggesting that
this will require socialization of much of health care and ambitious reforms to
bolster worker and citizen power.

https://www.yalelawjournal.org/review/capitalist-development-labor-law-and-the-new-working-class

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