* James Ottavio Castagnera holds the J.D. and PhD. from Case Western Reserve
University. A labor lawyer with a major Philadelphia law firm for nearly ten years, he has
published 18 books and some 50 articles and book chapters on law and labor topics.
1. ADAM SMITH, THE WEALTH OF NATIONS 7 (Wallace Brockway ed., Encyclopedia
Britannica, Inc. 1952).
JAMES OTTAVIO CASTAGNERA*
Table of Contents
I. INTRODUCTION................................. 297
II. BIG.......................................... 299
III. SMALL ....................................... 300
IV. CHASM....................................... 301
V. A THEORY OF JUSTICE........................... 302
VI. A MODEST PROPOSAL ........................... 305
Adam Smith got it right, once and for all:
It is not from the benevolence of the butcher, the
brewer, or the baker that we expect our dinner, but
from their regard to their own interest. We address
ourselves, not to their humanity but to their self-love,
and never talk to them of our own necessities but of
Capitalism—the free market—works so well because it reflects
our very nature. It is a morally “good” system only insofar as
human nature is “good.” It is a just system only insofar as our
fundamental nature is “just.”
A decade after the fall of the Berlin wall and the collapse of the
“evil empire,” we continue to sing capitalism’s praises, as if our free-
market economy were the best of all imaginable worlds. Even
amidst the first flush of the West’s Cold War victory, however, some
thoughtful thinkers raised doubts. In his swan song to George
Smiley—the clerk qua Cold Warrior in such classic novels as Tinker,
Tailor, Soldier, Spy—John LeCarré had a Smiley mentee muse, “I
thought of telling him that now we had defeated Communism, we
298 J. TRANSNATIONAL LAW & POLICY [Vol. 11:2
2. JOHN LECARRÉ, THE SECRET PILGRIM 334 (Alfred A. Knopf 1991) (1990).
3. See, e.g., David P. Barash, Why Bad Things Have Happened to Good Creatures, CHRON.
OF HIGHER EDUC., Aug. 17, 2001, at B13 (“An especially awkward design flaw of the human
body—male and female alike—results from the close anatomical association of the excretory
and reproductive systems, a proximity attributable to a long standing, primitive vertebrate
connection, and one that is troubling, not only for those who are sexually fastidious.”).
4. See, e.g., ROBERT B. EDGERTON, SICK SOCIETIES: CHALLENGING THE MYTH OF PRIMITIVE
HARMONY 1 (The Free Press 1992).
All societies are sick, but some are sicker than others. . . . [T]here are
some customs and social institutions in all societies that compromise
human well-being. Even populations that appear to be well-adapted to
their environments maintain some beliefs or practices that unnecessarily
imperil their well-being or, in some instances, their survival.
5. See, e.g., MILTON FRIEDMAN, CAPITALISM AND FREEDOM 4 (University of Chicago Press
1964) (1962) (“This book discusses some . . . great issues. Its major theme is the role of
competitive capitalism—the organization of the bulk of economic activity through private
enterprise operating in a free market—as a system of economic freedom and a necessary
condition for political freedom.”).
6. See, e.g., PETER SCHWEIZER, VICTORY (The Atlantic Monthly Press 1994).
7. For a brief discussion of these archaic views, see James Ottavio Castagnera, The Rule
of Four: Personality Types or Stereotypes?, MERCER COUNTY BUS. MAG., Mar. 2001, at 30.
were going to have to set about defeating capitalism, but that wasn’t
really my point: the evil was not in the system, but in the man.”2
LeCarré’s narrator did not get it quite right, though. To call it
“evil” is to place our moral judgment upon nature’s indifference . .
. her neutrality. Maladaptation may be the work of the devil, but if
so, he works with exquisite patience within the evolutionary
process. Maladaptation is both physical3 and societal.4
American economists sang the praises of capitalism long before
we won the Cold War,5 but the disintegration of the Soviet Union
has raised the chorus of adulation to new decibel levels. In fact,
some have gone as far as to credit the Reagan administration’s use
of America’s economic might for causing, or at least hastening, the
collapse of the “evil empire.”6 This author will not dispute that
thesis, which may very well have much merit.
Rather, the thesis of this article is drawn from LeCarré’s
observation, quoted above: now that Communism—which indeed is
a perversion of human society—is fading from the world, we must
turn our attention to the dark side of capitalism . . . recognizing
that, as socioeconomic systems go, it is only the best of a very bad
If capitalism is a maladaptation—if in moral terms, it is “evil”
and in biological terms it is “sick”—what are the symptoms that
lead to this diagnosis? In ancient times, and into the Middle Ages
and even the early-modern age, illness was attributed to imbalance,7
and we must look to our society’s imbalances to find those
Spring, 2002] GROPING TOWARD UTOPIA 299
8. John G. Mitchell, Urban Sprawl, NAT’L GEOGRAPHIC, July 2001, at 58.
10. Jane Eisner, Religious Leaders Urge Conscientious Car Buys, PHILA. INQUIRER, Aug.
5, 2001, at E1.
11. Mitchell, supra note 8, at 58.
12. Id. at 55-56.
14. See Michael Kelly, If You’ve Got Too Much, Please Don’t Flaunt It, PHILA. INQUIRER,
Aug. 26, 2001, at E5 (“My fellow . . . Americans, we are some kind of fat. I don’t mean getting
a bit thick around the middle. . . . I mean we are fat, fat, fat.”).
15. Mitchell, supra note 8, at 58.
symptoms. Then, having noted the symptoms, some solutions will
Middle America likes things to be BIG.
It likes big communities. “Sprawl is claiming farmland at the
rate of 1.2 million acres a year. Throw in forest and other
undeveloped land and . . . you’re waiving good-bye to more than two
million acres.”8 If sprawl “keeps a person in the driver’s seat,”9
those seats are in ever-larger vehicles.
Maybe the SUV, like the fur coat, will eventually be
labeled a consumer product of shame. This is
obviously not a view shared by . . . the millions of
Americans who plop down 30, 40 or 50 grand for a
bulky, gas-guzzling monster called “an off-road
vehicle” even though its closest encounter with rough
terrain is the speed bumps in the mall parking lot.10
Despite relentless highway expansion to keep up with suburban
sprawl, “[t]raffic delays rack up more than 72 billion dollars in
wasted fuel and productivity” annually.11
The average home, like the average car, gets larger as the ‘burbs
march on: Phoenix spreads into the desert at the rate of an acre an
hour, while Atlanta boasts a metropolitan area larger than
Delaware.12 What are these Middle Americans looking for? “[T]hey
want larger homes on larger lots . . . . [A] piece of the American
Even Middle Americans’ bodies are bigger.14 More than half the
population is overweight, and it seems destined to swell by another
sixty-three million by 2025, requiring thirty million more homes.15
Even Middle America’s dogs are getting bigger on average: the
golden retriever is now the dog of choice to climb in the back of that
300 J. TRANSNATIONAL LAW & POLICY [Vol. 11:2
16. HEATHER BOUSHEY ET AL., HARDSHIPS IN AMERICA: THE REAL STORY OF WORKING
FAMILIES 1 (Economic Policy Institute 2001).
17. U.S. DEP’T OF STATE, TRAFFICKING IN PERSONS REPORT 1 (2001); see also James Ottavio
Castagnera, Of Cloning and Human Trafficking, THE TIMES (Trenton, N.J.), Aug. 3, 2001, at
A18; Justice Department Announces Guilty Plea in Sex Trafficking Case, 78 No. 15
INTERPRETER RELEASES 675 (West Group, Apr. 16, 2001).
18. Africa Today, NAT’L GEOGRAPHIC, Sept. 2001, map insert.
20. John Lavin, Workers Struggle in El Salvador, NAT’L CATH. REP., Mar. 10, 2000, at 10.
21. See Martin Van Der Werf, How Much Should Colleges Pay Their Janitors?, CHRON. OF
HIGHER EDUC., Aug. 3, 2001, at A27.
SUV as it rumbles from home to mall to school to home again in
There is—as there always has been—another America. That it
is easy to ignore inside a $50,000 SUV is somewhat surprising,
given this other country’s sheer size. How big is this “small”
America? Consider the following:
[B]asic family budgets for a two-parent, two-child
family range from $27,005 a year to $52,114,
depending on the community. The national median
is $33,511, roughly twice the poverty line of $17,463
for a family that size; nationally, 29% of families with
one to three children under 12 fell below basic family
budget levels for their communities in the late 1990s;
over two-and-a-half times as many families fall below
family budget levels as fall below the official poverty
Beyond America’s borders the picture becomes far grimmer.
Every year an estimated 700,000 human beings—mainly women
and children—are trafficked across international borders to serve
as slaves in brothels, sweatshops, construction sites and fields.17 In
the African nations of Mali, Niger, Chad, Democratic Republic of
Congo, Ethiopia and Mozambique, per capita annual income is less
than $250.18 In South Africa, 20% of adults are infected with HIV;
in Botswana the figure is 36%.19 Closer to home, the unemployment
rate in El Salvador has been put at 60%.20
Immigrants fleeing such horrific and demoralizing conditions
flock to America, where low paying personal service jobs await
them. A janitor in a southern state will earn as little as $13,000 per
year.21 A taxi driver in New York City will begin his shift $120 in
the hole, having paid the company for the use of the cab and filled
Spring, 2002] GROPING TOWARD UTOPIA 301
22. Dominique Esser et al., Reorganizing Organizing: Immigrant Labor in North America,
25 AMERASIA J. 170, 173 (1999).
23. UPTON SINCLAIR, THE CRY FOR JUSTICE (Edward Sagarin & Albert Teichner eds.,
Barricade Books rev. ed. 1996) (1963).
24. LEO TOLSTOY, RICH AND POOR, reprinted in SINCLAIR, supra note 23, at 60.
25. EDWARD BELLAMY, LOOKING BACKWARD, reprinted in SINCLAIR, supra note 23, at 62.
the tank with gas, all at his own expense; for a twelve-hour shift he
may net as little as $30.22 Such jobs are overwhelmingly staffed by
immigrants and minorities . . . the millions of little people in this
other, this “small” America. I think these few stark examples will
IV. THE CHASM
Clearly there exists a disconnect between the America of
suburban sprawl and SUVs and the impoverished majority of
human beings. Some have called it “the chasm.”23 If we find
ourselves squarely on the right side of this divide, should we care?
Down the ages many writers have suggested that we should, and
marveled that so often we have not, preferring to protect our own
prerogatives at poor people’s expense. For example:
The present position which we, the educated and
well-to-do classes, occupy, is that of the Old Man of
the Sea, riding on the poor man’s back; only, unlike
the Old Man of the Sea, we are very sorry for the poor
man, very sorry; and we will do almost anything for
the poor man’s relief. We will not only supply him
with food sufficient to keep him on his legs, but we
will teach and instruct him and point out to him the
beauties of the landscape; we will discourse sweet
music to him and give him abundance of good advice.
Yes, we will do almost anything for the poor man,
anything but get off his back.24
It must in truth be admitted that the main effect of
the spectacle of the misery of the toilers at the rope
was to enhance the passengers’ sense of the value of
their seats upon the coach, and to cause them to hold
on to them more desperately than before. If the
passengers could only have felt assured that neither
they nor their friends would ever fall from the top, it
is probable that, beyond contributing to the funds for
liniments and bandages, they would have troubled
themselves extremely little about those who dragged
302 J. TRANSNATIONAL LAW & POLICY [Vol. 11:2
26. JOHN RUSKIN, THE VEINS OF WEALTH, reprinted in SINCLAIR, supra note 23, at 73.
27. See, e.g., James Ottavio Castagnera, As the Juggernaut of the Information Highway,
Gates’ Microsoft Resembles Rockefeller’s Standard Oil of a Century Ago, L. OFF. TECH.
SOLUTIONS, Mar. 1998, at 1-3.
28. See CARL N. DEGLER, IN SEARCH OF HUMAN NATURE 281 (Oxford University Press 1991)
(“Kin selection is nothing more than what in human affairs is called ‘enlightened self-interest,’
since the individual organism that appears to be sacrificing itself for another is actually
gaining an advantage through that behavior.”); see also id. at 284 (“As the name [‘reciprocal
altruism’] suggests, the behavior pattern is one in which an individual is supportive of a non-
relative on the assumption that at a future time that non-relative will reciprocate.”).
Primarily . . . I observe that men of business rarely
know the meaning of the word “rich” . . . . Men nearly
always speak and write as if riches were absolute,
and it were possible, by following certain scientific
precepts, for everybody to be rich. Whereas riches
are a power like that of electricity, acting only
through inequalities or negations of itself. The force
of the guinea you have in your pocket depends wholly
on the default of a guinea in your neighbor’s pocket.
If he did not want it, it would be of no use to you; the
degree of power it possesses depends accurately upon
the need or desire he has for it,—and the art of
making yourself rich . . . is therefore equally and
necessarily the art of keeping your neighbor poor.26
All three of these quotations, drawn from significant thinkers of
their times, imply the same proposition . . . that affluence rides upon
the back of poverty. Let me suggest that each writer reflected the
general belief of his time and that this belief is alive and well on
both sides of the chasm. But is it true?
V. A THEORY OF JUSTICE
In the introduction I quoted Adam Smith. While Smith
acknowledged the inherent selfishness of economic man, he
postulated a market economy that—while grounded in the bedrock
of this fundamental trait of human nature—worked to the
betterment of all participants. One might go a step farther and
wonder why either the buyer of the bread or the seller would mind
that the other was also better off for the achievement of their
transaction. Perhaps an unusually mean or avaricious person
might wish to impoverish his counterpart while maximizing his own
betterment—monopolists are not unknown to students of history27—
but anthropologists and psychologists tell us that enlightened self-
interest and reciprocal altruism are more common traits in the run
Spring, 2002] GROPING TOWARD UTOPIA 303
29. JOHN RAWLS, A THEORY OF JUSTICE 76 (Harvard University Press 1973) (1971).
30. Id. at 78.
31. Id. at 74.
If this is so, then a good working hypothesis might be that,
where my neighbor gains at no cost to me, or where we both gain,
my natural reaction will be to favor the transaction or system which
consistently provides this result.
Enter Harvard Philosopher John Rawls. In his seminal and
highly influential work on the subject of social justice, Rawls put
forward a proposition that he labeled “the difference principle” and
defined it as the “strongly egalitarian conception . . . that unless
there is a distribution that makes both persons better off . . . an
equal distribution is to be preferred.”29 He gave an example that is
highly relevant here:
To illustrate the difference principle, consider the
distribution of income among social classes. Let us
suppose that the various income groups correlate
with representative individuals by reference to whose
expectations we can judge the distribution. Now
those starting out as members of the entrepreneurial
class in property-owning democracy . . . have a better
prospect than those who begin in the class of
unskilled laborers. It seems likely that this will be
true even when the social injustices which now exist
are removed. What, then, can possibly justify this
kind of initial inequality in life prospects? According
to the difference principle, it is justifiable only if the
difference in expectation is to the advantage of the
representative man who is worse off, in this case the
representative unskilled worker.30
Consequently, Rawls rejected meritocracy . . . the system under
which society levels the playing field, so that the best qualified will
win. Rawls called this system “natural aristocracy.” “On this view
no attempt is made to regulate social contingencies beyond what is
required by formal equality of opportunity, but the advantages of
persons with greater natural endowments are to be limited to those
that further the good of the poorer sectors of society.”31
This, of course, is the present American model. In the
employment arena, discrimination in hiring, pay, promotion,
discipline and firing on the basis of race, religion, national origin,
sex, age—and in some states and cities sexual preference, marital
304 J. TRANSNATIONAL LAW & POLICY [Vol. 11:2
32. See generally PATRICK J. CIHON & JAMES OTTAVIO CASTAGNERA, EMPLOYMENT AND
LABOR LAW chs. 3-7 (4th rev. ed. West Publishers 2002).
33. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 201-02 (1995) (reviewing
the legality of a minority set-aside program and holding that “the Fifth and Fourteenth
Amendments to the Constitution protect persons, not groups. It follows . . . that all
governmental action based on race . . . should be subjected to detailed judicial inquiry.”);
Taxman v. Bd. of Educ. of the Township of Piscataway, 91 F.3d 1547 (3d Cir. 1996) (holding
that a school district’s affirmative action plan was unconstitutional because it was not
instituted to remediate proven past racial discrimination); Coalition for Econ. Equal. v.
Wilson, 122 F.3d 692 (9th Cir. 1997), cert. denied, 522 U.S. 963 (1997) (upholding the
constitutionality of a California referendum requiring the state to end all programs that gave
preferential treatment on the basis of race, color, or gender).
34. See generally CIHON & CASTAGNERA, supra note 32, chs. 12-20.
35. See, e.g., JOHN KENNETH GALBRAITH, THE NEW INDUSTRIAL STATE 264 (Houghton
Mifflin Co. 1971) (1967) (“[A]s this is written, union growth within the industrial system has
long since tapered off.”).
36. Id. (“Industrial relations have become markedly more peaceful as collective bargaining
has come to be accepted by the modern large industrial enterprise. Union members and their
leaders are widely accepted and on occasion accorded a measure of applause for sound social
behavior both by employers and the community at large.”).
37. NLRB v. MacKay Radio & Tel. Co., 304 U.S. 333 (1938).
38. Belknap v. Hale, 463 U.S. 491 (1983) (holding that replacement workers hired under
promises of permanent employment could sue the employer for breach of contract if laid off
at the end of the strike).
status, and even height and weight—is illegal.32 However, during
the 1990s affirmative action—based upon a Rawlsian recogniton
that merely outlawing discrimination was not enough to give groups
starting far behind in the race for workplace success—fell into
judicial and political disrepute.33
In the area of labor relations, the ostensible goal of the National
Labor Relations Act historically has been to “level the playing field”
between labor and management.34 When organized labor
represented one worker in three, during the 1950s and early 1960s,
this federal neutrality worked pretty well. As European and Asian
competitors began cutting into America’s manufacturing monopoly,
however, labor unions began to lose their hold on the American
worker. Astute observers realized as early as the mid- to late-1960s
that this was a long-term trend, not merely a short-term
fluctuation.35 For a time, this resulted in relatively peaceful
coexistence.36 A sea-change occurred in 1981, when President
Ronald Reagan “busted” the air traffic controllers union. The
employer’s right to permanently replace striking workers had been
established by the Supreme Court more than four decades earlier.37
However, in organized labor’s “heyday” this right was rarely
exercised. But when it was reaffirmed by the Supreme Court
shortly after Reagan’s union busting action against PATCO,38 it
became open season on economic strikers across the country.
Besides organized labor’s decline to where it represents only about
Spring, 2002] GROPING TOWARD UTOPIA 305
39. CIHON & CASTAGNERA, supra note 32, at 491-92. The case reference is to Textile
Workers Union v. Darlington Mfg. Co., 380 U.S. 263 (1965).
40. A textbook example is the dilemma of the New York taxi drivers. Having been
converted from employees to independent contractors and thus forced to shoulder all the risk
with no salary or benefits of any kind, they are caught in the “Catch 22” of enjoying no
organizing rights or protections under the NLRA, because that act extends its benefits only
to “employees.” See Esser et al., supra note 22, at 171-81.
one in ten workers in the private sector, the ineffectiveness of
National Labor Relations Board remedies is frequently cited as a
principal cause of the current weakness on the “labor” side of the
labor-management equation on what remains in theory a level
Although the NLRB has rather broad remedial
powers under the NLRA, the delays involved in
pursuing the board’s remedial procedures limit
somewhat the effectiveness of such powers. The
increasing caseload of the board has delayed the
procedural process to the point at which a determined
employer can dilute the effectiveness of any remedy
in a particular case.
Because unfair practice cases take so long to be
resolved, the affected employees may be left
financially and emotionally exhausted by the process.
Furthermore, the remedy, when it comes, may be too
little, too late. One study found that when
reinstatement was offered more than six months
after the violation occurred, only 5 percent of those
discriminatorily discharged accepted their old jobs
Indeed, the final resolution of back-pay claims of the
employees [in one notorious case] did not occur until
. . . fully twenty-four years after the closing of their
plant to avoid the union!39
Thus, while we regularly refer to the 1964 Civil Rights Act and
the National Labor Relations Act as “remedial” statutes, in fact the
remedies are limited by the illusion of the “level playing field.” The
reality is justice delayed and justice denied to the large percentage
of our population identified earlier in this article.40
VI. A MODEST PROPOSAL
Rawls’ theory of justice requires the advantaged to help the
disadvantaged under circumstances in which the disadvantaged
306 J. TRANSNATIONAL LAW & POLICY [Vol. 11:2
41. ROBERT B. REICH, THE WORK OF NATIONS 204-05 (Alfred A. Knopf, Inc. 1991).
42. GALBRAITH, supra note 35, at 263.
43. See James Ottavio Castagnera, Professors Without Picket Signs (II): Where is the
Professorate When We Really Need It?, LAB. L.J., Fall 2001, at 157-165.
44. Liza Featherstone, The New Student Movement, THE NATION, May 15, 2000, at 11; Jane
Manners, Joe Hill Goes to Harvard, THE NATION, July 2, 2001, at 16; Jack Brown, Top 10
Activist Campuses: Giving It the Old College Outcry (Sept. 7, 2001), at
http://www.motherjones.com/magazine/S001/top10.html; James Ottavio Castagnera, The Role
of Higher Education in the 21st Century: Collaborator or Counterweight?, CHANGE MAG.,
Sept./Oct. 2001, at 39-44.
45. For example, the tax cut and the concomitant evaporation of the budgetary surplus; the
president’s apparent support for drilling in the Alaskan wilderness preserves; the
administration’s stance on world trade/globalization, see Featherstone, supra note 44; the
executive order limiting federal funding with regard to stem-cell research, see Ron Southwick,
Ground Zero in the Debate Over Stem-Cell Research, CHRON. OF HIGHER EDUC., Sept. 7, 2001,
at A30; R. Alta Charo, Bush’s Stem-Cell Decision May Have Unexpected—and
Unintended—Consequences, id.at B14.
benefit more than the advantaged do themselves. The
anthropological principles of enlightened self-interest and reciprocal
altruism suggest that such policies are not necessarily unacceptable
to the advantaged members of a society. Past public policies
support this conclusion.
For example, in 1960 the maximum federal income tax rate was
ninety percent, making it a major factor in narrowing the gap
between the highest and the lowest levels of corporate
compensation; consequently, the average CEO’s take-home pay was
only twelve times that of the men and women on the corporation’s
factory floor, as compared to a ratio of about seventy to one during
the past decade.41 The one-third of the workforce that was
unionized was in no small measure responsible for keeping the gap
so narrow. This power balance was widely accepted in corporate
Can it be that such Rawlsian policies may become once again
acceptable to the advantaged half of American society in this new
decade? It is axiomatic that the public policy pendulum swings.
Eight years of Democratic control of the White House
notwithstanding, the past two decades are best characterized as
politically conservative, to wit the Clinton Administration’s almost
slavish dedication to the creation and capturing of budgetary
If our college campuses are good barometers of the political
climate—as I believe they are—then the faculty and student
activism of the 1960s and 1970s can be instructively contrasted to
the careerism of the 1980s and 1990s.43 In 2001, our campuses have
shown signs of stirring.44 The new administration, and its economic
and political policies,45 are more likely to antagonize activists than
Spring, 2002] GROPING TOWARD UTOPIA 307
46. In revising this essay after September 11, 2001, one must wonder what will be the long
range impact of the terrorist attacks on America. In the short run, our President has looked
and sounded very presidential. The majority response has been an outburst of patriotism.
Meanwhile, mixed signals are coming from our college campuses. The CIA recently reported
high interest among University of Maryland students at a campus job fair. UM Students
Eager to Join the Fight Against Terrorism; CIA Recruiters Swamped at College Career Fair,
BALT. SUN, Oct. 4, 2001, at 14A, available at http://ptg.djnr.com/ccroot/asp/publib/story.asp.
By contrast, Wesleyan University students rallied recently for “peaceful justice,” joining
others on some 140 campuses who engaged in teach-ins reminiscent of the early days of the
anti-Vietnam War movement. John Nichols, Peaceful Justice: Wesleyan Students Advocate
Non-Military Attack on Terrorism, THE NATION, Oct. 15, 2001, at 8. Caught in the middle are
those students who graduated in December and will graduate in June and who see their job
prospects—the CIA apparently excepted—threatened by the economic downturn that
intensified in the days following the attacks. See Michael Rubinkam, College Seniors Anxious
About Their Job Prospects, ASSOCIATED PRESS, Oct. 4, 2001, available at
http://www.eagletribune.com/news/stories/20011004/BU_001.htm. Meanwhile, polls indicate
that American workers are reevaluating their priorities. One such poll found that while
“career” was first and “wealth” third on American’s list of priorities prior to September 11,
“family” and “God” have filled those slots post-September 11, with “career” and “wealth”
sinking to the bottom of the barrel. Stephanie Armour, American Workers Rethink Priorities,
USA TODAY, Oct. 4, 2001, at B1, available at http://www.usatoday.com/money/covers/2001-10-
04-bcovthu.htm. Whether these stories have chronicled the occurrence of long- or merely
short-term changes remains to be seen.
47. See, e.g., STEVEN FRASER, LABOR WILL RULE: SIDNEY HILLMAN AND THE RISE OF
AMERICAN LABOR 394 (The Free Press 1991) (regarding the purpose of the federal Fair Labor
Standards Act, which still governs overtime, minimum wages, and child labor, “The . . . bill
. . . was the key to reconciling industrial progress with industrial democracy, because it would
function as an antidote to the instability of cyclically competitive, low-wage industries.”).
48. See Featherstone, supra note 44.
49. U.N. Urges Laws on Human Rights, PHILA. DAILY NEWS, Dec. 15, 2000, at 15, available
did Mr. Clinton’s “open zipper” policy.46 Thus the time may well be
ripe for a return to Rawlsian public policies.
If so, what sort of policies might these be? Let me suggest that
the most promising place to pursue such Rawlsian policy choices is
at the bottom of the human barrel. Recall that the New Deal
justification for federal legislation promoting labor organizing,
minimum wages, overtime compensation, social security, and
numerous other social reforms was the strengthening of America’s
consumer base in the hope that the worker qua consumer would pay
our way out of the Depression.47 Similarly, I am suggesting that
improving the lot of the lowest common denominator of our sisters
and brothers—while raising them up will benefit them more than
those of us better blessed—will improve life for us all by replacing
handouts with disposable income. This, indeed, is the essence of
Rawls’ theory of justice.
Consider two related examples here: the anti-sweatshop
movement48 and the international effort to end traffic in human
beings.49 Without question, the success of these two policies will
benefit the victims of these evils the most. But their success also
308 J. TRANSNATIONAL LAW & POLICY [Vol. 11:2
will benefit workers in the developed nations whose wages are
depressed and whose jobs are placed in jeopardy by unfair price
competition created by sweatshops and slave labor.
Furthermore, while liberals and conservatives may clash on
issues such as unionism and affirmative action, a position favoring
slavery and sweated labor is hardly viable in the arena of public
opinion, if one speaking from either side of the public policy debate
is to be taken seriously.
Such policies still leave us a long way from a Utopian—or even
a truly just—society. But such policies do bring us together across
the chasm and hold out the promise of eliminating at least some of
the worst levels of the human condition. We will be defeating the
worst abuses of capitalism, those harking back to the eighteenth
and nineteenth centuries. At least we will be groping toward
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