Those of us who practice progressive lawyering and legal scholarship often define it by what it is not rather than by what it is. As progressive lawyers, we often think of ourselves as public-interest lawyers, who work in public defense, legal services, impact litigation, or other forms of public service, and who take up the causes of criminal defense, immigration, constitutional and human rights, and poverty, among others. Progressive lawyers tend not to practice corporate law, trade law, or patent law. We tend not to work on those cases or investigate those areas of the law. By failing to fully engage with areas of the law outside of traditional progressive causes, however, progressive lawyers and the progressive legal community risk missing important issues, opportunities to push for change, and even potential allies in our pursuit of our larger goals.
This is particularly true in the field of corporate law. Corporations play a massive role in shaping our economic, social, and political environments. Corporate action and inaction profoundly shape our world. Millions of Americans work for for-profit corporations. We all consume the goods corporations produce and live with the economic, social, and environmental consequences of corporate decision-making. As citizens, we must also wrangle with the increasingly important role corporations are likely to play in American politics and government in the wake of the Supreme Court’s controversial decision in Citizens United v. FEC,’ which recognized corporations as full participants in the democratic public sphere, with First Amendment rights separate from those of their employees and officers.
While corporations have long opposed many social reforms, there may now be opportunities to push them in a different direction. In their efforts to attract knowledgeable workers and engaged consumers, corporations have adopted social responsibility measures and reformed hiring and retention practices. Determining whether these efforts are more than superficial changes requires deeper investigation.
On February 4, 2011, the N.Y. U. Review of Law & Social Change held a symposium entitled From Page to Practice: Corporations as Progressive Actors to explore the various ways in which corporations do, or might, promote progressive values, as well as the limits of their ability to do so. What role should corporations play in promoting and protecting the civil rights of their employees and their consumers? How might corporations embody egalitarian and democratic rather than hierarchical and exploitative values? What possibilities-and dangers-lie in empowering corporations to act in the political and not only the economic realm? If corporations are to be recognized as members of our political community and participants in public political debate-as the Supreme Court has held they are-what kinds of citizens and what kinds of speakers can they be? These are the kinds of questions that, as the journal’s editors, we felt progressive students and lawyers spent too little time thinking and talking about.
The four articles in this special Symposium Issue of the journal-three of which are extended versions of remarks delivered at the Symposium-address these questions from a variety of perspectives. We hope that they will be the start of a broader conversation-not only about corporations themselves, but about how we as a community of progressive lawyers and scholars can engage with, or combat, these powerful entities.
Mandatory arbitration for guestworkers, a uniquely vulnerable group, will result in class inequality and worse conditions for all workers.
Voting rights advocates should explore section 11(b) of the Voting Rights Act as a vehicle to combat voter intimidation.
An evidentiary privilege to protect workers' confidential communications from disclosure in federal and state court proceedings would support unions.
Labor organizing privilege is not a magic bullet that will secure the rights of workers to organize and collectively bargain. Employers will continue to resist the efforts of their workers to organize.