Context Matters: A Reply to Professor Eisenberg

Abstract

This invited response essay responds to Professor Deborah Eisenberg's article in the Florida Law Review, "Regulation by Amicus," which assesses U.S. Department of Labor efforts to influence statutory interpretation and effectuate public policy through the use of "friend-of-the-court" (amicus curiae) briefs in private litigation. Eisenberg focuses on the unconventional deployment of this strategy by the two most recent presidential administrations in the service of their interpretations of the Fair Labor Standards Act (FLSA), the federal statute governing wage and hour law. Through the often aggressive submission of amicus briefs, the administration of President George W. Bush aimed to use the Supreme Court’s agency deference doctrine to eviscerate worker protections, while President Barack Obama’s administration has employed the same tool to revive and expand interpretations protective of employees.

This response places Professor Eisenberg's work in context in two ways. First it notes that the practice Eisenberg describes has arisen during a period of extreme political polarization and congressional gridlock. Given this context, it is not surprising that the Bush and Obama administrations would use unconventional means to enact their national political agendas. Indeed, scholars of workplace law should consider the Bush and Obama administrations as potential case studies for examining traditional and new forms of regulation.

Second, this response argues that one must contextualize Eisenberg's article in light of the changing nature of work. The FLSA, which is a central focus of her article, was designed to protect those in standard employment relationships. Yet those in non-standard work – especially independent contractors and the self-employed – are increasing in number and often find themselves without the protective mantle of labor and employment law. To the extent our elected leaders refuse to legislate on their behalf, they enable, at least in part, the deregulation of segments of the labor market.

Keywords: Department of Labor, amicus briefs, amicus curiae, friend of the court, statutory interpretation, Fair Labor Standards Act, FLSA, employment law, independent contractors, self-employment

JEL Classification: K19, K31, K40