The Roberts Court and Private Bureaucracy

In The Political Constitution of Criminal Justice,133 William Stuntz blamed the constitutionalization of criminal procedure for the dysfunction in the criminal justice system. According to Stuntz, “Current constitutional law makes the politics of criminal justice worse: more punitive, more racist, and less protective of individual liberty"[1] [2] [3] This counterintuitive result, claimed Stuntz, stemmed from the political economy of the criminal justice system. Legislators and agencies only want to spend in areas where they can also exercise control. The Court had extensively regulated policing and the trial process while leaving substantive criminal law and sentencing largely free from oversight.[4] As a result, legislators focused their attention and spending in defining new crimes and meting out punishment. Stuntz argued that the Court should roll back its criminal procedure regulation in order to let states take more control and should instead apply more scrutiny to those limited areas of concern that are likely to fester.[5]

Has the Roberts Court adopted an equivalent perspective in the employment law context, substituting human resources personnel, arbitrators, and ERISA administrators for the police? Just as we need governments to provide us with security against crime, we need employers to provide employment. In order to perform, both governments and employers need power, authority, and flexibility. We worry about them abusing this power and have constructed a rights-based regime to protect those who suffer from such abuses. In the criminal context, we have constitutional rights that protect individuals against abuses such as unreasonable searches and seizures. In the employment context, we have statutory rights as to hiring, firing, and other employment actions that protect individuals against abuses such as discriminatory terminations. These rights provide oversight of the powerful institutions in question, and they provide remedies if an individual suffers abuse.

In both contexts, however, legal academia’s focus on rights has arguably obscured the bigger picture. As Stuntz argues, the focus on constitutional rights has constricted legislative and executive efforts to improve the overall functioning of the system. It has frozen certain aspects of criminal procedure in constitutional amber, and has left legislators to run amuck in other areas unfettered. We need to take a step back and look at the larger picture. Rather than creating rights, the Court was instead introducing a (federal) regulatory regime into the realm of (state and local) policing. Cops, who have been woefully underappreciated by legal academics in their efforts to improve the criminal justice system, should be deregulated and allowed to do their job without undue judicial interference.

In the employment law version of this story, the various human resources professionals, arbitrators, and compliance officers make up the private bureaucracies that constitute the “cops" These bureaucracies implement the employer’s policies when it comes to hiring, firing, promotion, compensation, benefits, and work environment. Just as the police wield the grassroots authority in the criminal procedure context, human resources employees wield workplace authority on the shop floor. They make the particularized decisions—millions every day—that can lead to abuse and discrimination. But concern about potential (and actual) abuse overshadows their importance to the functioning of business and industry. More importantly, it neglects an opportunity. Private institutional workplace players are there, in large part, to make sure that the employer complies with the law. They are natural allies in the effort to fight workplace abuse and discrimination. Rather than seeing them as part of the problem, the Roberts Court views them as part of the solution.

Some scholars have raised arguments critical of employment law’s rights-based regime similar to those raised in the criminal law context. Looking at Title VII as a rights-claiming system, Deborah Brake and Joanna Grossman argue that the system ignores the ways in which actual employees respond to discrimination.[6] By requiring prompt filing on the front end and inadequate protection against retaliation at the back end, Brake and Grossman contend that Title VII offers insufficient protection for employee rights. Others have examined how minimum- wage and overtime statutes are notoriously underenforced, particularly among immigrant populations.[7] Popular anxiety over health and pension benefits has fueled state interventions in these areas, which are often rebuffed as preempted.[8] Underlying it all, arbitration has caused frustration on both sides, as critics contend it is insufficiently policed,[9] while supporters contend it has become encrusted with features of the litigation process.[10] The potential to exercise rights and obtain relief is critical to a toothy system of workplace justice. But given the low numbers of workers who formally exercise those rights within the judicial system, it makes sense to consider ways to protect employees through internal means.

Critics of the Roberts Court’s jurisprudence might argue that employment law’s ills are due to the Court’s anemic interpretation of workers’ rights, rather than those rights themselves.[11] Certainly, one can argue with the doctrinal results of the Roberts Court’s decisions. What this chapter has sought to elucidate is the Court’s efforts to engage with private institutional actors, and the consequences of this engagement. This aspect of the Court’s employment law jurisprudence has been underappreciated.


The employment law jurisprudence of the Roberts Court can be characterized as probusiness, antilitigation, and even antiemployee. But painting in such broad swathes would create an inaccurate picture. The Court is at heart interested in the private resolution of workplace disputes through the members of the private bureaucracy: human resources personnel, arbitrators, and ERISA plan administrators. The Court places its trust in these actors to manage the workplace competently and in good faith. At times, this trust may seem almost naive. But given the reality of their absolute numbers and the number of conflicts they address on a day-to-day basis, this private cohort is more influential for most workers than the occasionally litigated case. Employment law scholars should recognize this and develop their own theories of private workplace management to counter the Roberts Court’s approach.

  • [1] Id. at 1651 (“Multiple erroneous interpretations of the same plan provision, even if issued ingood faith, might well support a finding that a plan administrator is too incompetent to exercise hisdiscretion fairly.. . .").
  • [2] William J. Stuntz, The Political Constitution of Criminal Justice, 119 Harv. L. Rev. 780 (2006).
  • [3] Id. at 785. See also id. at 784 (“There is no way to run a test, but it seems likely that because ofthe constitutional rules that govern policing and trial procedure, criminal law is broader, sentencingrules are harsher, key criminal justice institutions are more underfunded, and the population of arrestees and defendants is more racially skewed than would otherwise be the case.").
  • [4] Id. at 782. Stuntz acknowledges that regulation of sentencing has increased in the last fewyears. Id.
  • [5] Id. at 831-50. Eric Miller has made a similar point. See Eric J. Miller, The Warren Court'sRegulatory Revolution in Criminal Procedure, 43 Conn. L. Rev. 1, 4-6 (2010) (arguing that the traditional interpretation of the Court’s criminal procedure jurisprudence focused too much on rights andnot enough on the regulation of police that such jurisprudence entailed).
  • [6] Deborah L. Brake & Joanna L. Grossman, The Failure of Title VII as A Rights-Claiming System,86 N.C. L. Rev. 859 (2008).
  • [7] John Bowe, Nobodies: Modern American Slave Labor and the Dark Side of theNew Global Economy (2007); Matthew T. Bodie, The Potential for State Labor Law: The New YorkGreengrocer Code of Conduct, 21 Hofstra Lab. & Emp. L.J. 183 (2003).
  • [8] See Paul M. Secunda, Sorry, No Remedy: Intersectionality and the Grand Irony of ERISA, 31Hastings L.J. 131, 136-43 (2009) (discussing ERISA preemption doctrine, including preemptionof Maryland’s “Wal-Mart” health care law).
  • [9] For a foundational example, see Katherine Van Wezel Stone, Mandatory Arbitration of IndividualEmployment Rights: The Yellow Dog Contract of the 1990s, 73 Denver U. L. Rev. 1017 (1996).
  • [10] See, e.g., Thomas J. Stipanowich, Arbitration: The “New Litigation," 2010 U. Ill. L. Rev. 1.
  • [11] See, e.g., Brake & Grossman, supra note 137, at 934.
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