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Comparative Labor Law and Policy Journal. Volume 26, Issue 1 (2004), p. 97-150.


Collective Bargaining; globalization; labor; NAFTA


From the beginning of the free-trade era one contentious area has been the impact of trade liberalization on labor law. Opponents of NAFTA (and some supporters) predicted a regulatory race to the bottom (RTB) would ensue leading to increasingly deregulated labor markets. The result would be weaker collective bargaining laws, lower minimum standards, and a decline in the social wage. In recent years a number of scholars have examined the question in light of more than fifteen years experience under CUFTA and ten under NAFTA and there seems to be a growing consensus that, contrary to those 'great expectations', labor laws in North America have not been significantly weakened. In this article, I re-examine the effects of NAFTA on collective bargaining law in Canada and the United States. My contribution to the debates comes down to two points. On the one hand, I argue that the emerging consensus understates the impact of NAFTA-style trade liberalization on the legal regulation of collective bargaining because its focus is artificially narrow. In reaching their conclusions, 'new consensus' scholars have looked exclusively at changes in private sector collective bargaining legislation. I argue this produces a misleading picture of the impact of trade liberalization because it omits public sector collective bargaining and, even more importantly, it fails to consider the impact of trade liberalization on the effectiveness of statutory collective bargaining schemes. If the focus is broadened to include public sector bargaining and labor law's effectiveness, then one finds there has been more labor market deregulation than consensus scholars acknowledge. On the other hand, I accept that, even after broadening our analytical lens, the downward trajectory of the collective bargaining regime has not been as steep as many RTB theorists predicted. I argue that the model upon which this prediction was based was overly structural and that a more nuanced one is needed. Such a model must better take into account a range of factors that mediate the impact of NAFTA-style trade liberalization on labor market regulation. These mediations occur at the economic level, within the collective bargaining regime itself, and in the external environment that shapes the direction of state action.

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