The Perils of Procedurally Regulating Self-Regulation (Reviewing Cynthia Estlund, Regoverning the Workplace : From Self-Regulation to Co-Regulation (Yale Univ. Press 2010))

In Regoverning the Workplace, Cindy Estlund embraces “regulated self-regulation” in the workplace or “co-regulation.” This is a distinctly proceduralist spin on New Governance theory. By proceduralist, I mean an approach that emphasizes the existence of procedural devices to mitigate employer unfairness in the workplace. Specifically, Estlund argues for a system of workplace governance in which corporate self-governance is tempered through use of two procedural mechanisms: (1) inside, non-union employee representation and (2) independent outside monitors. Through these devices, Estlund hopes to foster employer-employee collaborations outside of traditional unions and bring a substantial employee voice back into the workplace. History, however, has shown repeatedly that limitless employer power, constrained only by market forces and reputational costs, leads to the worst forms of employer opportunistic behaviors and employee abuse. Although Estlund seeks to apply institutional checks against disingenuous attempts at corporate compliance by employers, I remain unconvinced that employees can either participate meaningfully in employer self-regulation through some form of non-union collective representation or through utilizing independent, outside monitors. Even in these days of limited union density in the private sector, independent unions still remain the best and only effective counterweight against absolute employer domination of the workplace. To hope that employers will see the business, legal, or moral case for co-regulation, and voluntarily reform their sharp practices toward employees, is to believe that employers will start acting ahistorically