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In order to avoid the pendulum swings of politics, advocates must argue for more fundamental norms for the protection of labor rights. Statutory protections, while important, will not provide long-lasting change toward establishing workers' rights as fundamental under constitutional and international law principles. Workers' rights must be seen as fundamental to the functioning of a democratic society, rather than as the special interest agenda of unions or plaintiffs' attorneys. This can be done through more advocacy for a minimum set of workers' rights as human rights, including the right to organize labor unions and the right to be free from discrimination, which undergird both the Employee Free Choice Act and the Ledbetter Act.

This Article places the movement toward international labor rights in the context of the debates among critical scholars about the importance of rights generally in liberal legalism. As in the prior debates, the need for minimum rights to protect outsiders such as low-wage workers is a starting point. In this Article, the author establishes that a minimum level of workers' rights is necessary and not problematic. The remaining question concerns the types of rights that will best protect marginal and low-wage workers and lead to a jurisprudence of fundamental worker rights. This is already being done in labor movement circles which rally under the banner that “labor rights are human rights.” Building upon the expansion of labor rights into international areas, the author describes the potential for these norms to be incorporated in the advocacy strategies of low-wage workers. The author rejoins the debate between whether social movements should rely on the courts or legislatures to protect their interests and apply these insights to the protection of worker rights.

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2009 U. Chi. Legal F. 421