In recent decades, courts have grown hostile to worker arguments that law should advance collectivity and racial solidarity. Since Lochner, landmark opinions from the field have served as showpieces for legal liberalism—each an iteration of the public/private divide that re-entrenches its development of work law’s ideological and institutional infrastructure. Commentators now typically cede this ground when conceptualizing how the law is discussed, implemented, or taught, perhaps because law itself is under right-wing attack. Deploying history, political theory, and critical theories, this Article shows how liberalisms’ public/private dyads continue to generate unworkable and divisive conceptions of race, solidarity, and commerce within a bedrock of social movements—worker organizing—and society more broadly.Twenty-first century working-class movements that succeed against the odds today advance race-conscious and broadly solidaristic demands, defying the legal frameworks that have matured but fail to help unify our fracturing society. This Article theorizes the links between work law’s capture by public/private divides and the harms they impose upon our centuries-long pursuit of a multiracial democracy. It establishes interracial solidarity as central to functional democracy and economy, as well as society’s more stable conception of “the public.” Building on these insights, I offer a frame for work law’s current state as privatized public law, allowing for closer study of the public/private divide’s relationship with commerce and its fundamental role in maintaining racial subordination. Conversely, it allows us to recognize as well the small- and large-scale frame transformations ordinary people have achieved through mass social movements.By centering race, this reappraisal of work law opens up possibilities for unifying its development, charts a future beyond liberalism within political economic thought, and provides a starting point for unraveling similarly contested fields of law. Duly recognizing the countertheories popular movements raise against the law of work carries not only epistemic, doctrinal, and political importance, but foregrounds law’s normative distribution of power between public and private, racially solidaristic or radically individualistic—a break in the theoretical impasse over how we may build more just economic and political systems over time
