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Current labor law debates, in the United States and elsewhere, reflect entrenched discursive positions that make potential reform seem impossible. This Article identifies and examines the three most influential positions, which it names the “social,” “the neoliberal,” and the “rights-based” approach. It shows that these discursive positions are truly transnational in character. In contrast with conventional wisdom, which accepts the incompatibility of these positions, this Article creates a conceptual framework that productively combines elements from each to enrich the debates over labor law reform and to foster institutional imagination. Applying this framework, the Article examines the collective bargaining systems of the United States and Mexico comparatively. It illustrates how the Mexican labor law regime could embrace the democratic aspirations of the rights-based position (dominant in the United States) without eliminating labor rules that facilitate collective bargaining. In contrast, the American labor law regime could embrace the aspirations of the social position (dominant in Mexico) to ease workers’ organization and facilitate collective bargaining, without undermining the system’s democratic character. This analysis draws attention to possibilities that have been foreclosed in each country and, by showing how they have been opened up elsewhere, suggests potential alternatives for institutional experimentation in domestic reform.

Publication Citation

32 U. Pa. J. Int'l L. 123-202 (2010)