Professor Brian Langille, co-chair of the Labour Law Research Network global conference, with Professor and Associate Dean Kerry Rittich, chair of the keynote panel
By Jaime Weinman, JD 2004
"Post-Trump? Can't wait!" quipped Catherine Fisk, the lone American on the Labour Law Research Network Conference’s opening plenary panel, called "Post Trump, Post Brexit, Post Europe(?), Post Free Trade, Post Globalization Labour Law." It got a laugh from the audience in the Isabel Bader Theatre on the University of Toronto campus, near the beginning of a panel where there didn't seem to be much to laugh about.
Before the panel began, the Sunday afternoon session had tried to kick off the third annual global LLRN Conference—hosted for the first time in North America at the Faculty of Law—on a positive note, with the presentation of the Bob Hepple Awards for Distinguished Achievements in Labour Law. But even here, the audience couldn't escape the feeling that something ominous was in the air when it came to the labour law issues LLRN focuses on. The first winner, UCLA School of Law Professor Katherine Stone, warned: "Our field is under assault right now. Right-wing populist movements are arising in more countries, and are dismantling the edifice that we and our predecessors built, the edifice that protected worker rights, collective bargaining, decent labour standards, and social equality."
Professor John Howe, University of Melbourne Law School and LLRN3 chair, and Professor Katherine Stone, one of two Bob Hepple Awardees
Though second winner, Kazuo Sugeno (president of the Japan Institute for Labour Policy and Training), was more upbeat in his remarks, the impact of Stone's warning was hard to shake off. By the time the panelists trooped onstage, and the panel chair, University of Toronto Faculty of Law professor and associate dean of the JD program, Kerry Rittich, started off by talking about the "unsettled, unstable moment in which we find ourselves," it was clear that this was not going to be a laugh riot.
The five panelists spoke uninterrupted about two basic questions: first, whether we're seeing the end of "the postwar marriage of democracy and capitalism," and second, whether there is a way to address the problem of inequality or whether we face "a more dystopian future." Can the global order - the very order that current labour law depends on - be saved or fixed?
Professor Julia Lopez, Universitat Pompeu Fabra Law School in Barcelona with Professor Kazuo Sugeno, the second Bob Hepperle Awardee
As the title of the panel implies, the election of Donald Trump in the U.S. and the victory of Brexit in the United Kingdom were the two events that were viewed as the biggest danger signs. But the people who were actually from those countries cautioned against putting too much weight on these events in trying to understand popular opinion.
Fisk, the Chancellor’s Professor at the University of California, Irvine School of Law, repeatedly mentioned that Trump lost the popular vote, reassuring her Canadian audience that the majority of Americans are not yet ready to go along with him. True, Trump's election was driven by the decline in labour force participation, particularly among men in rural areas, but Hillary Clinton's popular-vote victory also showed the potential for an alliance between "the white elite and working-class non-whites, especially in urban areas."
Professor Diamond Ashiagbor with Professor Bin Li
The audience heard something similar from the British member of the panel, Diamond Ashiagbor, law professor and director of research at the University of London's Institute of Advanced Legal Studies. She said Brexit was tied to the decline of labour and of "traditional well-paid, secure, male breadwinner jobs," but that's not the key determinant, because there were areas that have suffered similar declines where support for leaving the European Union was not strong. To understand Brexit, "we also have to factor in questions of national identity, and that involves thinking about race," and later in the session she talked compellingly about how Brexit was driven in part by "nostalgia for the fantasy of a lost state, a state that is fully sovereign and free from a liberalized global trading regime."
The impression that came across was that while Trumpism and Brexit represent real challenges to the postwar order, they may not be the final word on where these countries come down on issues like trade.
But is the global order, and its institutions like the EU, strong enough to resist these challenges? By far the most bleak view on the subject came from the Canadian panelist, labour law scholar and former York University president, Harry Arthurs. The marriage of democracy and capitalism was a combination of free-market economics and strong welfare states, to protect people from the insecurities of the market – but this combination, Arthurs, felt, may be falling apart under the weight of the "enormous resistance" to paying the high taxes that are necessary for sustaining the welfare state, as well as the end of the stable employment situations that postwar prosperity depended on.
"Are we witnessing the end of labour as we know it, of capitalism as we've known it since the end of the war, and perhaps the end of democracy as we have understood it for a very long time?" Arthurs asked.
Yet the mood of the panel wasn't all gloom, and as it went along, it was clear that most panelists didn't share Arthurs' pessimism. Bin Li, professor of law at China's Beijing Normal University, wasn't a labour lawyer, but seemed disinclined to worry about a Brexit-style backlash in China, instead making general points about the country's attempts to make sure that "labour law is not misused for trade and investment purposes."
But the most impassioned defence of the current status quo came from Manfred Weiss, professor emeritus at the law school of J.W. Goethe University in Frankfurt. He pushed back against sad forecasts in a jolly yet forceful way. "I think we should be cautious in drawing a picture which might be too apocalyptic, too catastrophic," he said.
Sure, Weiss admitted, the European Union has problems, but things were not as bad as Arthurs was making them sound. For example, thanks to global agreements that have taken place since 2006, "the international trade union movement" is currently "much stronger than it was at the turn of the century." Even Brexit, he insisted, was not a disaster for the EU, but rather "a wake-up call," and he was particularly enthusiastic about the election of Emmanuel Macron in France, which he pointed to as evidence that pro-globalist politics can win. His enthusiasm was so infectious that he received a round of applause for his opening remarks.
As the clock started to run down to 6 o'clock and the end of the panel, optimism seemed to predominate; Fisk even mentioned that she had some of "the Manfred optimism - sorry, Harry." She felt that "we might see developments that are more labour-friendly." And as to the question of whether we are moving into a post-globalization era, Ashiagbor pointed out that "globalization hasn't stalled, it changes form," and added that "it's not always the case that the global or the trans-national is inherently about dispossessing the social to the benefit of the market."
It wasn't that these panelists had no doubts about the future. But when Weiss said "we have to go to a cosmopolitan, globalized structure," no one on the panel seemed to offer an alternative possibility. Though Arthurs was left as the outlier, he at least managed to get the only other big laugh of the session, when he told the audience members to push a green button if they believe "that the welfare state is not in danger."
Nobody pushed the button, because there was no button there to push.
"See?" Arthurs said, vindicated by the lack of disagreement. "I told you."
