Labor Law and the Race to the Bottom

The overwhelming consensus in American legal scholarship is that races to the bottom are real, strong, and very threatening. Since 2001, about 85% of labor-law articles discussing race to the bottom have accepted it, most of them uncritically. Only a few articles have expressed skepticism. The strength of this consensus is odd in a number of respects.

First, in other, more empirically driven disciplines, the consensus cuts strongly in the opposite direction. Since 2001, 70% of the articles mentioning race to the bottom in economics and political science were skeptical of the claim, and, whether accepting or rejecting it, none of them treated the issue uncritically. Some articles have claimed that empirically there is "no evidence" of a general race to the bottom.' Second, in other areas of the law where the race-to-the-bottom claim has currency, such as environmental law and corporate law, there are articles supporting the basic claim, but there are also leading articles that analyze the issue extensively and articulate a skeptical view.' However, no major article like that exists in labor-law scholarship. Third, even apart from these developments in other areas, there are stories about the evolution of labor law that are inconsistent with the race-to-the-bottom thesis.

Despite the large number of labor-law scholars and articles, those stories remain largely untold.