The Limits of Collective Bargaining in Public Employment

Abstract

Good lawyers are good critics. The nature of their discipline makes this skill necessary, and the content of their work brings it inevitably to bear upon doctrines and concepts laboriously constructed by their predecessors. In approaching questions involving collective bargaining and public employment, union lawyers and academic commentators have for some years been criticizing the concept of the sovereignty of the public employer, and its offspring, the doctrine of the illegal delegation of power. These two lawyer-made constructs once had imposed formidable obstacles to collective bargaining in the public sector of our economy. But this criticism, vastly strengthened by the changing nature of government employment and the ever visible example of collective bargaining in the private sector, has led to a liberalized common law and a growing body of enacted law and has reduced to a whisper the counsel of restraint voiced by these constructs.

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