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This article seeks to move beyond the debate between informal and formal legal regulation. Both approaches reflect essential but limited components of a legal regulatory regime. Neither approach adequately responds to the simultaneous challenges of changing organizational structure, racial and gender dynamics, and market-driven demands for flexibility and adaptiveness. The next step requires that we take account of the critiques of formality and informality. This requires embracing the challenge of developing new forms of legal regulation that treat organizational decision makers and incentive structures explicitly as part of the legal regulatory regime. In this view, law consists of a set of practices, incentives, structures, and principles that emerge both outside of and in interaction with formal and instrumental law. This approach embraces the process of experimenting with organizational structure, processes of decision making about everyday work, and incentives as a part of an explicit system of legal regulation. Workplaces operate within this legal regime as functioning law-making bodies that operate in interaction with other legal regulatory systems, rather than merely as objects of external or private regulation. The challenge then becomes one of forging a dynamic relationship between law as a system of enforcing minimum standards of conduct through sanctions and law as a system for developing the capacity and incentives to make those norms meaningful in the organizational regimes that shape conduct on a day-to-day basis.

This article sketches out the major themes and directions suggested by the need to rethink approaches to regulation of discrimination in the workplace to respond to changes in organizational structure and demographics. It is a first step in a larger theoretical project, currently underway in collaboration with Chuck Sabel, of developing an approach to law in the new workplace that has the potential to respond to the dynamic, interactive, and unstable conditions in which employment practices increasingly occur. In this article, the potential themes are introduced and developed through examining three different organizational contexts, presented in Section II, in which employment decision making illustrates the racial, gender, and organizational dynamics that are emerging in the workplace. Section III draws on these examples to question the continuing validity of the assumptions about the structure of work and the dynamics of bias that underlie current legal approaches to discrimination. Section IV offers one example of an alternative regulatory process and structure addressing racial and gender bias in the workplace to suggest the contours of a more structural, dynamic, and integrated regulatory approach to the problem of discrimination.


Labor and Employment Law | Law | Law and Gender | Law and Race


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