The Enduring Ambiguities of Antitrust Liability for Worker Collec

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The Enduring Ambiguities of Antitrust Liability for Worker Collec

DIGITALCOMMONS— @WAYN ESTATE—Wayne state UniversityLaw Faculty Research PublicationsLaw School42370The Enduring Ambiguities of Antitrust Liability for

The Enduring Ambiguities of Antitrust Liability for Worker Collecr Worker Collective ActionSanjukta M. PaulWayne State UniversityFollow this and additional works at: https://digitalcommons.wayne.edu/lawfrpdr Part of

the Business Organizations Lav/ CommonsRecommended CitationSanjukta M. Paul, The Enduring Ambiguities of Antitrust Liability for Worker Collective Ac The Enduring Ambiguities of Antitrust Liability for Worker Collec

tion, 47 Loy. u. Chi.L.J. 969.1048 (2016)This Article is brought to you for free end open access by the Lav.' School at DigitalCommons@WayneState. It

The Enduring Ambiguities of Antitrust Liability for Worker Collec

has been accepted for inclusion in Lav/ Faculty Research Publications by an authorized administrator of OigitalCommons@Wayne$tate.The Enduring Ambigui

DIGITALCOMMONS— @WAYN ESTATE—Wayne state UniversityLaw Faculty Research PublicationsLaw School42370The Enduring Ambiguities of Antitrust Liability for

The Enduring Ambiguities of Antitrust Liability for Worker Collecby low-wage workers who are classified as independent contractors, and who therefore presumptively do not receive the benefit of the labor exemption f

rom antitrust law. Such workers find themselves in the position of most workers prior to the New Deal: at once lacking labor protections, yet exposed The Enduring Ambiguities of Antitrust Liability for Worker Collec

to antitrust liability for organizing to improve their conditions. I argue that this default rule is the legacy of a problematic history that is taken

The Enduring Ambiguities of Antitrust Liability for Worker Collec

for granted by the contemporary antitrust framework.In Part I, I show that the threat of antitrust liability is a powerful constraint upon contempora

DIGITALCOMMONS— @WAYN ESTATE—Wayne state UniversityLaw Faculty Research PublicationsLaw School42370The Enduring Ambiguities of Antitrust Liability for

The Enduring Ambiguities of Antitrust Liability for Worker Collecability to worker collective action to the time before the labor exemption, arguing that pre-New Deal courts imported fundamentally hierarchical and c

oercive tenets from the common-law tradition into the fledgling antitrust law in order to apply it to contain worker organizing, thereby creating tens The Enduring Ambiguities of Antitrust Liability for Worker Collec

ions with their own freedom of contract principles. In Part III, I show how the legal framework of the labor exemption reinforced the underlying assum

The Enduring Ambiguities of Antitrust Liability for Worker Collec

ption that antitrust regulates worker collective action, even as it immunized most workers from such liability (so long as they continued to be* David

DIGITALCOMMONS— @WAYN ESTATE—Wayne state UniversityLaw Faculty Research PublicationsLaw School42370The Enduring Ambiguities of Antitrust Liability for

The Enduring Ambiguities of Antitrust Liability for Worker Collect. Julia Tomassetti’s comments on an earlier draft were also especially pivotal. I am grateful too to Scott Cummings, William Forbath, John Howe, Etha

n Lcib, Shae McCrystal, and Suresh Naidu for their insightful thoughts and comments at various points. This Article has also benefitted from audience The Enduring Ambiguities of Antitrust Liability for Worker Collec

comments at the Labour Law Research Network conference (University of Amsterdam), the Law & Society conference, the Class Crits conference (UC-Davis),

The Enduring Ambiguities of Antitrust Liability for Worker Collec

and the Eighth Annual Colloquium on Scholarship in Labor & Employment Law (UNLV). I thank Garth Bostic for his able research assistance, Linda Karr O

DIGITALCOMMONS— @WAYN ESTATE—Wayne state UniversityLaw Faculty Research PublicationsLaw School42370The Enduring Ambiguities of Antitrust Liability for

The Enduring Ambiguities of Antitrust Liability for Worker Colleck Benjamin Barnett, as well as the other editors of the Loyola University Chicago Law Journal, whose thoughtful care and attention to this Article has

improved it greatly.969970Loyola University Chicago Law Journal [Vol. 47considered employees), ỉn Part IV, I argue that the modern framework for anti The Enduring Ambiguities of Antitrust Liability for Worker Collec

trust does not compel the continued application of this default rule, and indeed supplies materials for a fresh, more balanced reconsideration of it.U

The Enduring Ambiguities of Antitrust Liability for Worker Collec

ltimately, the situation of these workers is a test of what antitrust fundamentally says about labor, absent a specific exemption. Because that exempt

DIGITALCOMMONS— @WAYN ESTATE—Wayne state UniversityLaw Faculty Research PublicationsLaw School42370The Enduring Ambiguities of Antitrust Liability for

The Enduring Ambiguities of Antitrust Liability for Worker Collect how to reform our cut rent framework of labor regulation—in the same way that it was the baseline for those conversations prior to the New Deal itse

lf. In particular, antitrust functions as an outer limit for any such reform, and also for specific policy proposals to address the increasing prevale The Enduring Ambiguities of Antitrust Liability for Worker Collec

nce of working relationships outside the bounds of employment.Introduction.................................................971I.The Impact of Antitrus

The Enduring Ambiguities of Antitrust Liability for Worker Collec

t on Contemporary IndependentContractor Workers.......................................976A.The Struggle for Decent Work and Decent Pay asPrice-Fixing.

DIGITALCOMMONS— @WAYN ESTATE—Wayne state UniversityLaw Faculty Research PublicationsLaw School42370The Enduring Ambiguities of Antitrust Liability for

The Enduring Ambiguities of Antitrust Liability for Worker Collecc.Universe of Potential Defendants.....................984D.Intersection with Work Law...........................986II.Of Markets, Combinations, and S

ervants: How AntitrustLaw Came to Punish Worker Collective Action..............990A.Classicist Trade Regulation and Nineteenth-Century LaborRegulation The Enduring Ambiguities of Antitrust Liability for Worker Collec

...........................................9911.Classicist Trade Regulation.......................993

DIGITALCOMMONS— @WAYN ESTATE—Wayne state UniversityLaw Faculty Research PublicationsLaw School42370The Enduring Ambiguities of Antitrust Liability for