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A "collective bargain" is itself a "contract"; but it is a contract of a very special kind .... Corbin on Contracts ? 1420 Professor Corbin relegated collective agreements to the periphery of contract law. His treatise briefly sketched the rights and duties created by collective agreements in a single section, placed without explanation in the chapter on "Illegal Contracts," and throughout the work the application of contract rules and principles to collective agreements was either casually mentioned or wholly ignored.' Professor Corbin's justification for this neglect was that collective agreements were only marginally relevant to the central concerns of his treatise: A collective bargain differs very greatly from the ordinary bargain of commerce, the parties to which are comparatively few, and the subject matter and purposes of which are generally very limited. The collective bargain has many features of a fundamental organizing statute, whose broad provisions control, in some degree, the activities of many individuals who may have had little or no part in its drafting and who may even have been bitterly opposed to the draftsmen. The collective bargainers cannot foresee all of the problems that are sure to arise and cannot provide for the innumerable details of the future administration of the bargain.... This treatise does not attempt the analysis and discussion of collective bargains. They cannot be treated with advantage separately from the general subject of Labor Relations and Labor Legislation.2 Professor Corbin was not alone in his view of collective agreements as only distantly related to contracts proper. Dean Shulman, in his famous Holmes Lecture, "Reason, Contract and Law in Labor Relations,,"3 acknowledged that collective agreements are made with the

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Collective bargaining' in public employment is different from collective bargaining in private employment, for "government is not just another industry."2 This proposition I consider self-evident,3 for in private employment collective bargaining is a process of private decisionmaking shaped primarily by market forces, while in public employment it is a process of governmental decisionmaking shaped ultimately by political forces.4 The introduction of collective bargaining in the private sector restructures the labor market, while in the public sector it also restructures the political processes. However, it does not follow from the proposition that collective bargaining in the public and private sectors is different that colt Garver Professor of Law, Yale University. 1. The term "collective bargaining" is used here to describe the process of establishing terms and conditions of employment in a written agreement negotiated between the public employer and a union acting as exclusive representative of the employees in the bargaining unit. This process is to be distinguished from "consulting" or "meeting and conferring," which lacks one or more of the basic elements of collective bargaining: exclusive representation, negotiation, and written agreement. The criterion is not the terminology used by the legislature or the courts, but the process used by the parties. Thus, although a Minnesota statute used the term "meet and confer," the process occurring under it was in fact collective bargaining. See Hetland v. Board of Educ., 295 Minn. 338, 207 N.W.2d 731 (1973). On the other hand, an Arizona court used the term "collective bargaining" to describe a process which was bare consultation. See Board of Educ. v. Scottsdale Educ. Ass'n, 17 Ariz. App. 504, 509, 498 P.2d 578, 583 (1972), vacated on other grounds, 109 Ariz. 342, 509 P.2d 612 (1973). 2. H. WELLINGTON & R. WINTER, JR., THE UNIONS AND THE CITIEs 202 (1971) [hereinafter cited as WELLINGTON & WINTER]. See Shaw & Clark, The Practical Differences Between Public and Private Sector Collective Bargaining, 19 U.C.L.A. L. REV. 867 (1972). 3. Admittedly, there are many others who emphasize the similarities between public and private bargaining and who would solve problems in the public sector by analogizing to the private sector. See, e.g., CALIFORNIA ASSEMBLY ADVISORY COUNCIL ON PUBLIC EMPLOYEE RELATIONS, FINAL REPORT (1973); Edwards, The Emerging Duty To Bargain In The Public Sector, 71 MICH. L. REV. 885 (1973); Kheel, Strikes and Public Employment, 67 MICH. L. REV. 931 (1969). However, most of those who analogize to the private sector pattern generally acknowledge the need for some modifications, particularly with respect to the availability of the strike. See, e.g., Smith, State and Local Advisory Reports on Public Employment Labor Legislation: A Comparative Analysis , 67 MICH. L. REV. 891, 909 (1969). 4. See, e.g., Project, Collective Bargaining and Politics In Public Employment, 19 U.C.L.A. L. REV. 887, 1011-19 (1972) [hereinafter cited as Project]; Goldstein, Book Re...