Document Type



U.S. labor and employment law is broken. Evidence of the decay can be gleaned from the steep decline in unions and collective bargaining, inadequate employment protections, ineffective enforcement of many employment laws, and correlative increases in income inequality and unstable work. Recent scholarship has argued that out of the ashes a “new labor law” rises, where labor, management, and state representatives share regulatory roles for the workplace, an arrangement known as “tripartism.” Is this wishful thinking? To find out, we report on original data collected through an ethnographic study of inter–state (side–to–side) and state–society (up–and–down) relationships in Chicago. We identify pervasive and important collaborative partnerships in both arenas, including practices that may indeed undergird a budding tripartism in the United States. But in this nascent version, employers, the state, and unions do not necessarily collaborate on rights enhancements and enforcement. Rather, worker representatives contribute to the state’s primary role in workplace regulation, and employers are nowhere to be found. Moreover, many of the arrangements rely on the initiative and volition of unique actors we call “nodal agents”—not the law. That means some of the state–based nodal agents central to interagency and inter–civil society collaboration derive their authority from inherently unstable political appointments. To the extent the “new labor law” exists in Chicago, and likely elsewhere, it is a “relational labor law” that, because it relies on informal interpersonal dynamics, is inherently precarious. While our contribution is descriptive and explanatory, the findings strongly point to a need for more law, including civil service protections and nudges or even mandates for side–to–side and up–and–down collaboration. New enforcement agencies should also be structured as nodal agencies, i.e., institutions with legal mandates to collaborate. Given the relative absence of employers from most of the collaborative activities we report—as well as from our study itself—further research should focus on the nature of management attitudes toward tripartite arrangements and the best ways to incentivize or compel their participation in the future.

Publication Date


Original Citation

Michael M. Oswalt & César F. Rosado Marzán, Organizing the State: The “New Labor Law” Seen from the Bottom-Up, The “New Labor Law” Seen From the Bottom-Up, 39 Berkeley J. of Emp. & Lab. L. 415 (2018).


College of Law

Legacy Department

College of Law




Rights Statement

In Copyright



To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.