Legal institutions have provided us with numerous spectator sports. The jury trial and its predecessors, including trial by combat, are obvious examples. In the mid-nineteenth century, arguments before the Supreme Court of the United States occasionally attracted crowds of spectators and captured the front pages of the yellow press. In more recent times, proxy fights have been rumored to provide action for the bookmaking set and televised legislative investigations have won top-viewer ratings. Among the perennial spectator sports provided by our legal institutions over the past half-century or more has been the confrontation of labor and management across the collective bargaining table.
As with all spectator sports, the main intrigue of collective bargaining is the perpetual air of suspense. Unlike most other sports, however, interest in this one is heightened by the fact that here the participants can shift the rules as well as the play.
Analysts have attempted to remove the sport from the collective bargaining process by devising models to explain its operation. They strive, thereby, to bring the process within the realm of science; to substitute predictability for suspense. Some of these theorists use the old-fashioned descriptive analysis approach. Others employ mathematical models, game models and psychodynamic theories. To date, however, probably to the joy of the sport's public and the delight of its practitioners, these analysts have failed in their efforts to transform the collective bargaining process into a predictable series of transactions. Nevertheless, the spectators' enjoyment can be heightened, the participants' skills sharpened and perhaps even the rules of the game improved by attempts at formal and even informal analysis of how the game of collective bargaining has been played and why the players make particular moves. Recognizing that such an attempt remains art, not science, an exercise at analysis of the collective bargaining process is undertaken here not with the somberness of traditional legal scholarship but rather more in the spirit of Monday morning quarterbacking.
Response or Comment
Alvin L. Goldman, Special Comment, Collective Bargaining Without Work Stoppage?, 57 Ky. L.J. 215 (1969).