Working at the Boundaries of Markets: Prison Labor and the Economic Dimension of Employment Relationships

The "who" question is prominent in recent legal scholarship about work: Who is recognized as a worker, and who is left out? Roughly speaking, two distinct conversations pursue this question. One analyzes the centrality of market work and questions whether other activities-nonmarket work-should be incorporated into legal regimes of worker support and protection. This inquiry emerges from feminist scholarship, focuses on families and caregiving, and primarily considers reforms in who counts as a worker for the purposes of family, welfare, social insurance, and tax law.

The boundaries of employment largely are taken for granted, and the problem is whether to go beyond employment and recognize unpaid work performed outside the market's boundaries. A second conversation responds to the proliferation of contingent work, outsourcing, and workforce intermediaries like temporary staffing agencies, and it proceeds to question how yesterday's employment statutes engage today's restructured labor market. This inquiry emerges from labor and employment relations scholarship, focuses on firms in conventional labor markets, and primarily considers reforming the employee/independent contractor distinction or reconfiguring labor protections to be less dependent on a single, or even any, employer.