The law in our heads

I don’t want to sound like a Paul Simon song, but in my little town I grew up believing in the rule of law. I wanted to work for a unionized company because there, I was told, I would experience justice in the workplace; I would be protected. Well, now that I am a Harvard-educated law professor, I have learned how little I knew back then. I was the first in my family to graduate from college and therefore the first to attend law school.

My version of the Paper Chase was somewhat different than the traditional story line. I spent my time in law school not stressing about whether I would earn grades high enough to allow me to make a six figure salary but, rather, how I would be able to survive around the sniveling privileged kids 10 years my junior until I escaped by way of graduation to become the labor lawyer I wanted to be. I did escape, and I even learned enough labor law to teach it in law school. And that law is fascinating in the way that Spinoza or the scholastic philosophers are fascinating: lots of twists and turns along the way but, in the end, not much to show for one’s efforts.

When I went to work for the National Labor Relations Board, two years after I had graduated from law school and done a short stint working for a union-side law firm, I occasionally served in a role known as “the information officer of the day.” That task involved fielding calls from the general public to listen to various stories of atrocities they had suffered in the workplace. The calls usually ended the same way: “I’m sorry there is nothing we can do. In the absence of a union contract or protection from a federal statute an employer can fire or mistreat you for a good reason, a bad reason, or no reason at all.” This is known as the employment-at-will doctrine and has continued to be the general rule in employment law for a couple of centuries.

Now, as it turns out, a union contract (on the rare occasions a union is able to successfully negotiate one) does not offer much protection either, a fact that came as a surprise to this blue collar boy who had been a Teamster shop steward for seven years before attending law school, but that is a subject for another post. What amazed me during my “information officer” days was the extent to which callers would argue with my accurate statements of law. That got me to thinking about the law that everyday people walk around with in their heads. In short, people often think they are operating in well-defined, protective legal environments when nothing could be further from the truth. I would agree that “white collar” folks are more susceptible to these fictions than “blue collar” folks, but even working class veterans are not entirely free from this deception.

When I worked as a union organizer in the 1980s people often told me they did not need a union: they had, they claimed, a house, a car, and a degree of protection from arbitrary treatment in the workplace provided by the “the law.” Even then I knew that the house and car had been purchased with “funny” money, but there was no use explaining to them that they really did not own anything. But even I believed (at least a little) in the existence of some principle holding that an employer could not fire a worker on a whim. That an employer did not have absolutely unfettered authority in the workplace of the kind that, say, Marie Antoinette might have possessed in 1791. I was wrong.

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Michael C. Duff is Professor of Law at the University of Wyoming College of Law. He grew up in a working class family and worked as a blue collar worker and served as a Teamster shop steward and activist in the airline industry for twelve years before developing an interest in a legal career. He was admitted to the Harvard Law School in 1992 and graduated in 1995. Since then, he has worked as a union-side attorney in Maine, a Government attorney with the National Labor Relations Board in Philadelphia, Pennsylvania and Minneapolis,, Minnesota, and a law professor in Wyoming. His scholarly writings focus on deep analysis of labor law from a solid, working class perspective. Those writings can be accessed free of charge at http://works.bepress.com/michael_duff/

2 Responses

  1. CP

    I get into arguments with the law in people’s heads all the time. My lived experience in a certain class position is different than relatives and many friends who are more in the middling class, or now what’s left of it.

    I’ll never forget my hellish nightmare with a certain credit card company back in the 1990’s. My middle class relative (she straddled down from her owning class family of origin) absolutely thought I was making stuff up about the treatment the unfairness, and what sounded like usury and unthinkable illegality in the way this company fought every single one of my reasonable efforts to get out from a comparatively small debt. I earned 20% of her husband’s income at the time (& now even less as his has gone up and mine has gone further down, rippee!). However much I warned her in the aftermath of the fiction that is “consumer credit counseling” not to ever get a credit card from this particular company she did it anyway. Within 3 months she was in the same position, albeit the figures were astronomically different. She was appalled by her ordeal. In a twist of fate, her owning class father had similar reactions to her descriptions of her experience as she had when I was describing mine to her. Her owning class father had an eye-opener indeed when he tried to intervene on her behalf. Even his higher class position was no longer immune to the unfettered unregulated muscle of this corporation. To this day, however, they both view their experience as an atypical event.

    Their belief in the law in their heads is still stronger than the law that is in operation. The difference is, I have no class insulation to engage in the belief let alone actually believe it.

    1. Michael Duff

      Great example, CP. I think what garners such disbelief in privileged folks having bad encounters with commercial law is that they are usually on the drafting side of things with the ability to walk away from deals they don’t like. So either they are drafting various kinds of contracts and commercial instruments that will inure to their benefit, or they are making counter-proposals to proffered commercial arrangements when those from the working class are almost always in a take it or leave it situation. So if the credit card company is offering 18% the privileged classes can say I demand 5% and if you won’t give it to me I’ll look elsewhere. Your downward straddler believed in a world like that because it was consistent with her prior experience. Her dad believed in it, too. Both were cognitaively predisposed to assume this was aberrational. It was not unlike the reactions of some of the students I went to law school with upon encountering various forms of injustice. All of that had to be an aberration, they thought; it could not possibly represent business as usual.

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