The Working Precarious

Bread & Butter and the Rule of Law

People caught up in the horrible daily realities of the Gig economy are worried about the erosion of the rule of law. But here is the problem: workers must work. And although it delights elites of a certain flavor to argue endlessly that the dweebs are getting what they deserve because they didn’t vote in the right way - I remember, four decades ago, being the kind of worker that simply did not have the time to vote. I realize that kind of focus on “bread and butter” is inconceivable to certain people, but it isn’t to me. I remember “Government cheese.” And the kind of people who like to attack working people probably don’t. If I sound angry at elites, it’s because I am.

Still, am I not an elite? I’ve had the kind of lucky life that makes me able to remember: Government cheese, finishing (barely) the N.Y. Marathon, my first day working as an airline ramp serviceman, my first day at Harvard Law School, my first day working as a lawyer, my first day working as a Government lawyer, and my first day as a law professor. A rolling stone—as they say—gathers no moss. I’ve been with most everyone, for a time, and because of that I feel sorry for most everyone. But facts are stubborn things, and the reality is that we’ve moved into this strange year because it was so painfully clear to anyone with their eyes open that “last year” did not cut it. I’m not going to get into anyone’s political wheelhouse; I’m just going to say that this train has been off the tracks since 1980. You’ve got to be pretty old to make such a statement, and you’ve got to be pretty experienced to be willing to try to prove your point. So - maybe I’m not an elite.

Whether elite or not, I’m very sorry about the Government lawyers who have unexpectedly lost their jobs. As an unpaid gig, I’ve represented such lawyers in places like the Merit Systems Protection Board and the Federal Labor Relations Authority. I was also a union official within the Government representing Federal employees against the Government. I could tell you (bipartisan) stories about what Government officials have done to their own employees that would literally make your toes curl.

I also had a paying job with the Government, for about ten years, in which I defended the rights of employees and employers under the National Labor Relations Act. That’s right - I said employers. It’s a nasty surprise to learn that the vaunted (but fading away) NLRA defends employers at least as much as it defends employees. Go out and engage in picketing in the wrong way and see how quickly the agents of the State come down on you. Small wonder that Samuel Gompers — whom snooty academics love to deprecate — was so focused on preventing Government from issuing injunctions against unions during strikes.

All of this is to say that Government cheese people know the “social order” that appears now to be coming unglued has been SO not ok for SO long that it is hard to know where to start THAT conversation. And, of course, when you do attempt such a discussion it immediately devolves into a pro wrestling contest between blue and red enemy combatants. This is a design, not a bug, of the current paradigm. What a clever way to shut off real debate about things that actually matter. Well, maybe it’s not so clever - I suspect the ancient Romans applied similar strategies. But it is at least well-engineered.

Still, we can certainly agree that there are “good” and “bad” forces in the world but agree even more viscerally that there are not enough real jobs, housing, and transportation in our own neighborhoods. I mean, does anyone really insist that I should defend the Gig economy, the real estate market, inflation in the auto industry, or renuclearization of the energy grid in service of AI? Does anyone disagree that at the present moment these phenomena all look like roads to material and spiritual poverty (and perhaps to disaster)? And I haven’t even gotten to the wars . . .

As I spend this Easter writing exam questions for law students about workers who are hurt and killed in new and strange ways, or about workers trying to organize unions when the vaunted NLRB is under legal threat from every direction (even if NLRB “protection” takes too long and is often merely symbolic), I’m remided why I’m on no “party’s” side: The preceding social order was completely inadequate. But the “other side” offers NOTHING but mysticism. Friends, I know I’m not a mystic, because I can’t see or touch “the invisible hand.” I’ll perhaps shed a tear for the gigantic law firms that Donald Trump is chasing around. But please don’t try to make me feel that those firms (guardians of the prior social order) were ever focused directly on safeguarding anything of true significance to the working class. And, as a lowly former consumer of government cheese, I simply don’t see (perhaps my vision is cheese-impaired) how you can practice lawfare in one direction and not expect it from the other. Isn’t that basic Jiu Jitsu?

Michael C. Duff