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Common Laborers? Industrial Pluralists, Legal Realists, and the Law of Industrial Disputes, 1915–1943

Published online by Cambridge University Press:  28 October 2011

Daniel R. Ernst
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At the turn of the twentieth century, when highbrow political thinkers rebelled against the consensual epistemology and ethics of the Victorians, when they argued, as William James did, that “neither the whole of truth nor the whole of good is revealed to any single observer,” when they declared themselves to be living in “a world where truth and justice are to be carved from culture rather than found already etched in reason,” they created an unprecedented problem in liberal political and legal thought. Previous thinkers could take the individual as the fundamental political unit and attribute to “him” a capacity for knowing and doing right that “he” shared with all God's children (as “commonsense” moral philosophy held) or all participants in a consensual, organically developing society (as historicist scholarship had it). Armed with such premises, they could confidently judge diverse social practices against universal standards of conduct.

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Articles
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Law and History Review , Volume 11 , Issue 1 , Spring 1993 , pp. 59 - 100
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Copyright © the American Society for Legal History, Inc. 1993

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References

1. James, William, “On a Certain Blindness in Human Beings,” in Talks to Teachers on Psychology; and to Students on Some of Life's Ideals (New York, 1901), 169Google Scholar, quoted in Kloppenberg, James T., Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920 (New York, 1986), 149Google Scholar; ibid., 11.

2. Gabriel, Ralph Henry, The Course of American Democratic Thought: An Intellectual History since 1815 (New York, 1940), 216–27Google Scholar; Siegel, Stephen A., “Historism in Late Nineteenth-Century Constitutional Thought,” Wisconsin Law Review 1990: 1431–1547.Google Scholar

3. Livingston, James, “The Social Analysis of Economic History and Theory: Conjectures on Late Nineteenth-Century American Development,” American Historical Review 92 (February 1987): 93.CrossRefGoogle Scholar

4. Moe, Terry M., The Organization of Interests: Incentives and the Internal Dynamics of Political Interest Groups (Chicago, 1980), 148–54.Google Scholar

5. Holmes, Oliver Wendell Jr, “The Path of the Law,” in Collected Legal Papers (1920; New York, 1952), 184.Google Scholar

6. Commons, John R., Institutional Economics: Its Place in Political Economy (1934; Madison, 1959), 241–42.Google ScholarWunderlin, Clarence E. Jr, has chosen to stress the differences between Commons and his students in Visions of a New Industrial Order: Social Science and Labor Theory in America's Progressive Era (New York, 1992), 147, 153–55.Google Scholar I am more impressed by the continuity in their views.

7. Peller, Gary, “The Metaphysics of American Law,” California Law Review 73 (July 1985): 1232–40.CrossRefGoogle Scholar

8. Such struggles ranged across the entire terrain of highbrow social thought in America in the half century after 1880. See White, Morton, Social Thought in America: The Revolt Against Formalism (1949; New York, 1976)Google Scholar; Purcell, Edward A. Jr, The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (Lexington, Ky., 1973), 14–114.Google Scholar

9. Furner, Mary O., Advocacy and Objectivity: A Crisis in the Professionalization of American Social Science, 1865–1905 (Lexington, Ky., 1975), 49–51, 52, 58–80Google Scholar; Dorfman, Joseph, The Economic Mind in American Civilization, 5 vols. (New York, 1946–1959), 3:161–64Google Scholar, 205–10. The quoted language appears in Commons, Institutional Economics, 74.

10. Furner, Advocacy and Objectivity, 274–75; Fink, Leon, “‘Intellectuals’ versus ‘Workers’: Academic Requirements and the Creation of Labor History,” American Historical Review 96 (April 1991): 403–4, 408–11.CrossRefGoogle Scholar

11. Commons, Institutional Economics, 74, quoting Thorstein Veblen, The Theory of the Business Enterprise (1904). See Harter, Lafayette G. Jr, John R. Commons: His Assault on Laissez-Faire (Corvallis, Ore., 1962), 19–24Google Scholar; Wunderlin, Visions, 10–15. Clarence Wunderlin and Christopher Tomlins have reminded me that Commons's interest in groups dates from his professorship at Syracuse, when he published several articles in the American Journal of Sociology, subsequently collected as A Sociological View of Sovereignty, 1899–1900, ed. Dorfman, Joseph (New York, 1965).Google Scholar

12. For key works on the history of industrial pluralism, see Stone, Katherine Van Wezel, “The Post-War Paradigm in American Labor Law,” Yale Law Journal 90 (June 1981): 1509–80CrossRefGoogle Scholar; Tomlins, Christopher L., The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (New York, 1985).Google Scholar

13. Schlabach, Theron, Edwin Witte: Cautions Reformer (Madison, 1969), 3–51.Google Scholar

14. Eisner, J. Michael, William Morris Leiserson: A Biography (Madison, 1967), 7–13.Google Scholar

15. Harter, Commons, 77–79.

16. Witte, Edwin E., “Institutional Economics as Seen by an Institutional Economist,” Southern Economics Journal 21 (October 1954): 131–32, 135, 133.CrossRefGoogle Scholar

17. Commons, Institutional Economics, 241–42; Commons, John R., “Law and Economics,” Yale Law Journal 34 (February 1925): 375.CrossRefGoogle Scholar Harter, Commons, 205–31, and Rutherford, Malcolm, “J. R. Commons's Institutional Economics,” Journal of Economic Issues 17 (September 1983): 721–44CrossRefGoogle Scholar, are excellent guides to Commons's main theoretical writings.

18. Commons, John R., “Karl Marx and Samuel Gompers,” Political Science Quarterly 41 (June 1926): 285.CrossRefGoogle Scholar For conflicting views on the significance of Commons's retreat from socialism, compare Fitzpatrick, Ellen, “Rethinking the Intellectual Origins of American Labor History,” American Historical Review 96 (April 1991): 424–25CrossRefGoogle Scholar, with Leon Fink's response, ibid., 429–30.

19. Leiserson, William, “How Many Class Struggles?” in The Socialism of Our Times, ed. Laidler, Harry W. and Thomas, Norman (New York, 1929), 247, 261–62.Google Scholar

20. On this self-image, see generally Persons, Stow, The Decline of American Gentility (New York, 1973).Google Scholar

21. Carter, James Coolidge, Law: Its Origin, Growth and Function (New York, 1907), 120Google Scholar; see Horwitz, Morton J., The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York, 1992), 118–21.Google Scholar

22. Commons, John R., Legal Foundations of Capitalism (1924; Madison, 1957), 299–300Google Scholar; John R. Commons, “Law and Economics,” 376.

23. Commons, Legal Foundations, 299–300 (quoting Carter, Law, 230–31). See also Commons, Institutional Economics, 234–35.

24. Commons, Legal Foundations, 304–5. For a similar juxtaposition of the “customary law” of the workers with the judicially sanctioned common law of their employers, see Forbath, William E., “The Ambiguities of Free Labor: Labor and the Law in the Gilded Age,” Wisconsin Law Review 1985 (July-August): 803–6.Google Scholar

25. Commons, John R., “A New Way of Settling Labor Disputes,” American Monthly Review of Reviews 23 (March 1901): 331Google Scholar; Commons, John R., Myself: The Autobiography of John R. Commons (1934; Madison, 1964), 71–72.Google Scholar

26. Commons, Myself, 72–73, 88; Ross, Dorothy, The Origins of American Social Science (New York, 1991), 454.Google Scholar See also Biddle, Jeff E., “Purpose and Evolution in Commons's Institutionalism,” History of Political Economy 22 (Fall 1990): 40.CrossRefGoogle Scholar

27. Morris Copeland, trained by Thorstein Veblen in a competing school of institutional economics, thought Commons's approach slighted “the infinite variety of possibilities in economic planning.” He likened Commons's idea of planning to that of a home builder who simply selected “the best from a group of houses already built” instead of independently investigating the theory and facts of house construction. Copeland, Morris A., “Commons's Institutionalism in Relation to Problems of Social Evolution and Economic Planning,” Quarterly Journal of Economics 50 (February 1936): 345–46.CrossRefGoogle Scholar

28. Final Report of the Commission on Industrial Relations (Washington, D. C., 1915), 366, 308–09, 374–75.

29. Commons, “Marx and Gompers,” 284, 286. On the AFL's policy, see Fink, Leon, “Labor, Liberty, and the Law: Trade Unionism and the Problem of American Constitutional Order,” Journal of American History 74 (December 1987): 914–18.CrossRefGoogle Scholar As state-sponsored collective bargaining matured in the late 1930s and 1940s, the plight of the individual within the union became increasingly problematic for the industrial pluraliste. William Leiserson in particular struggled with the issue in his unfinished and posthumously published work, American Trade Union Democracy (New York, 1959). See Eisner, Leiserson, 47–49.

30. Hofstadter, Richard, The Age of Reform from Bryan to E D. R. (New York, 1955), 241Google Scholar; Davis, Hartley, “The Coal Trust, the Labor Trust, and the People Who Pay” Everybody's Magazine 14 (April 1906): 435–44Google Scholar; (May 1906): 640–49; Baker, Ray Stannard, “Capital and Labor Hunt Together” McClure's Magazine 21 (September 1903): 451–63.Google Scholar

31. Harter, Commons, 237 n. 49; Millis, Harry A., “Some Aspects of the Minimum Wage,” Journal of Political Economy 22 (1914): 146CrossRefGoogle Scholar, quoted by McNulty, Paul J., The Origins and Development of Labor Economics: A Chapter in the History of Social Thought (Cambridge, Mass., 1980), 147Google Scholar; Witte, Edwin E., “A Critique of Mr. Arnold's Proposed Antilabor Amendments to the Antitrust Laws,” American Economic Review, supp., 32 (March 1942): 452–53.Google Scholar See also Rutherford, “Commons's Institutional Economics,” 735.

32. See Grey, Thomas C., “Langdell's Orthodoxy,” University of Pittsburgh Law Review 45 (Fall 1983): 1–53Google Scholar; Kalman, Laura, Legal Realism at Yale, 1927–1960 (Chapel Hill, 1986), 10–35.Google Scholar

33. On the first generation of legal reformers, see White, G. Edward, “From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America,” Virginia Law Review 58 (September 1972): 999–1028CrossRefGoogle Scholar; Hull, N. E. H., “Restatement and Reform: A New Perspective on the Origins of the American Law Institute,” Law and History Review 8 (Spring 1990): 55–96.CrossRefGoogle Scholar

34. Cohen, Felix, “Transcendental Nonsense and the Functional Approach,” Columbia Law Review 35 (June 1935): 826CrossRefGoogle Scholar, quoted in Kalman, Legal Realism at Yale, 3. Kalman's first chapter provides an excellent survey of realist thought and relates it to empiricist and functional revolutions in the social sciences, as does part 2 of Purcell's Crisis of Democratic Theory. Morton J. Horwitz offers a new interpretation of the realists in The Transformation of the American Law, 1870–1960. I have contrasted his view of the realists with the one presented here in “The Critical Tradition in the Writing of American Legal History,” Yale Law Journal 102 (January 1993): 1019–76.

35. Oliphant, Herman, “A Return to Stare Decisis,” American Bar Association Journal 14 (February 1928): 74, 75.Google Scholar

36. Arnold, Thurman, The Symbols of Government (New Haven, 1935), iii–iv.Google Scholar

37. Mitchell, Wesley C., “Commons on Institutional Economics,” American Economic Review 25 (December 1935): 650Google Scholar; Chasse, John Dennis, “John R. Commons and the Democratic State,” Journal of Economic Issues 20 (September 1986): 773CrossRefGoogle Scholar; Ross, Origins, 204–16, 371–86; Seckler, David, Thorstein Veblen and the Institutionalists (Boulder, Colo., 1975), 52–77.Google Scholar

38. Ross, Origins, 378–86; Fetner, Gerald, “The Law Teacher as Legal Reformer: 1900–1945,” Journal of Legal Education 28 (1977): 519–23Google Scholar; Goebel, Julius Jr, A History of the School of Law, Columbia University (New York, 1955), 324–35Google Scholar; Who Was Who in America (Chicago, 1973), 5:297, s.v. “Hale, Robert Lee”; Tugwell, Rexford Guy, The Trend of Economics (New York, 1924).Google Scholar Tugwell owed his greatest intellectual debt to Simon Patten, a heterodox economist of Ely's generation who mixed classical and historical elements in his theory. Dorfman, Economic Mind 5:502–15; Furner, Advocacy and Objectivity, 49–51; Ross, Origins, 196.

39. Ross, Origins, 372–76; Dorfman, Economic Mind 3:450–54, 5:425–38; Hamilton, Walton Hale, “The Development of Hoxie's Economics,” Journal of Political Economics 24 (November 1916): 855–83CrossRefGoogle Scholar; Arnold, Thurman, “Walton Hale Hamilton,” Yale Law Journal 68 (January 1959): 399–400Google Scholar; Lerner, Max, “Walton Hale Hamilton,” Dictionary of American Bibliography, supp. 6 (1980), 271–72.Google Scholar The Yale legal realists were also influenced by Tugwell, who taught at the law school briefly in the 1930s. Kalman, Legal Realism at Yale, 132–33.

40. Hoxie, Robert Franklin, Trade Unionism in the United States, 2d ed. (New York, 1924), 355, 359–65, 354.Google Scholar

41. In his autobiography, Hoxie's friend Alvin Johnson recreated a conversation held shortly before the labor economist's suicide, in which a distraught Hoxie feared that nothing could be salvaged from his writings once he rejected Veblen's premise of an unbridgeable intellectual gulf between workers and employers. Johnson, Alvin, Pioneer's Progress (New York, 1952), 204–7.Google Scholar

42. Commons, John R., “Class Conflict: Is It Growing in America, and Is It Inevitable?” in Labor and Administration (New York, 1913), 82–83Google Scholar; Publications of the American Sociological Society 2 (1908): 162–63.

43. The bibliography to the lecture lists Theodore Roosevelt's address before the national convention of the Progressive Party held in Chicago in 1912. Hoxie, Trade Unionism, 375.

44. Ibid., 368–69.

45. Ibid., 370, 371.

46. Hamilton, Walton H., “The Institutional Approach to Economic Theory,” American Economic Review, supp. 9 (March 1919): 312–13.Google Scholar

47. For Pound's view of Carter, see Pound, Roscoe, The Spirit of the Common Law (Boston, 1921), 154–57, 193–216.Google Scholar For the quoted language, see Pound, Roscoe, Interpretations of Legal History (New York, 1923), 152Google Scholar, in Fetner, “Law Teacher as Legal Reformer,” 516.

48. Nelles, Walter, “Towards Legal Understanding,” Columbia Law Review 34 (June 1934): 868.Google Scholar

49. In 1923, Nelles advised the ACLU to intervene on the side of militant rank-and-filers in the Boot and Shoe Workers Union. Nelles to Robert W. Dunn, September 4, 1923, vol. 243, American Civil Liberties Union Papers, Seeley G. Mudd Manuscript Library, Princeton University. For a later dispute involving radicals within the International Ladies' Garment Workers' Union, see the correspondence in volume 328 of the ACLU Papers.

50. Commons, Myself, 72–73; Hamilton, Walton H. and Wright, Helen R., A Way of Order for Bituminous Coal (New York, 1928), 136.Google Scholar Similarly, Hamilton's and Arnold's colleague William Reynolds Vance called for labor tribunals to safeguard the public interest from the “contention and strife between the great combinations of capital and labor” at a meeting of an employers' group, the League for Industrial Rights. “Annual Banquet of the League,” Law and Labor 7 (April 1925): 80.

51. Hamilton and Wright, Way of Order, 109; Commons, John, et al., Industrial Goodwill (New York, 1919)Google Scholar, quoted in [Oliphant, Herman,] Interborough Rapid Transit Company against William Green, et al. Brief for Defendants (New York, 1928), 412.Google Scholar

52. For Felix Frankfurter's self-congratulation at having introduced Wolman to the ACWA's Sidney Hillman, see Felix Frankfurter Reminisces (New York, I960), 172–73. On Wolman, see Dorfman, Economic Mind 5:520–24.

53. Dulles, Foster Rhea and Dubofsky, Melvyn, Labor in America: A History, 4th ed. (Arlington Heights, Ill., 1984), 249–50Google Scholar; Tomlins, State and the Unions, 161–84.

54. Cook, Walter Wheeler, “Privileges of Labor Unions in the Struggle for Life,” Yale Law Journal 27 (April 1918): 779–801.CrossRefGoogle Scholar

55. Commons, Legal Foundations, 289 n. 3, 298, 91–134; Fuchs, Ralph F., “The Newer Social Scientists Looks at Law,” St. Louis Law Review 13 (December 1927): 52.Google Scholar

56. Commons, Legal Foundations, 298. The legal realists were slower to repay the compliment in their scholarly writing. While respectful of Commons's work, they were more likely to turn to the neo-Veblenians for insight. Thus, the institutional theory of government Karl Llewellyn presented to the American Economics Association in December 1924 owed more to Veblen and Hale (his colleague at Columbia) than to Commons. Llewellyn, Karl N., “The Effect of Legal Institutions Upon Economics,” American Economic Review 15 (December, 1925): 665–83Google Scholar; Schlabach, Cautious Reformer.

57. Schlabach, Cautious Reformer, 39–49, 57–62; Goebel, History of the School of Law, 256–58, 284–86.

58. John Frey to Herman Oliphant, November 1, 1924, Container 16, John P. Frey Papers, Library of Congress; Ernst, Daniel, “The Yellow-Dog Contract and Liberal Reform, 1917–1932,” Labor History 30 (Spring 1989): 268–70CrossRefGoogle Scholar; Schlabach, Cautious Reformer, 70; Witte, Edwin E., “‘Yellow Dog’ Contracts,” Wisconsin Law Review 6 (1930): 28–29.Google Scholar

59. New York Times, November 29, 1927; Carey, Homer F. and Oliphant, Herman, “The Present Status of the Hitchman Case,” Columbia Law Review 29 (April 1929): 452–60.CrossRefGoogle Scholar

60. [Oliphant,] IRT v. Green, 471, 475, 478, 139–42. Oliphant acknowledged “great obligations” of indebtedness to Richard Hale and Brissenden. [Oliphant,] IRT v. Green, (1).

61. Interborough Rapid Transit Co. v. Green, 131 Misc. 682, 227 N.Y.S. 258 (1928).

62. G. W. Norris to Herman Oliphant, April 21, 1928, Box 1, Paul F. Brissenden Papers, Labor-Management Documentation Center of the New York State School of Industrial and Labor Relations, Ithaca, New York. Substantial accounts of the adoption of the Norris-LaGuardia Act appear in Schlabach, Cautious Reformer, 63–71; Bernstein, Irving, The Lean Years: A History of the American Worker, 1920–1933 (1960; Baltimore, 1966), 397–403Google Scholar; and Vadney, Thomas E., The Wayward Liberal: A Political Biography of Donald Richberg (Lexington, Ky., 1970), 85–90.Google Scholar

63. Frankfurter to Oliphant, April 24 1928, and Oliphant to Frankfurter, April 25, 1928, Brissenden Papers.

64. Witte to Frankfurter, April 28, 1928, reel 102, Felix Frankfurter Papers, Library of Congress; see also Witte to Matthew Woll, January 12, 1926, quoted in Schlabach, Cautious Reformer, 63.

65. “Suggestions and Criticism of Mr. Francis B. Sayre with Regard to Proposed Tentative Draft of Bill Limiting the Use of Injunction” May 17, 1928, Brissenden Papers; Sayre, Francis B., “Labor and the Courts,” Yale Law Journal 39 (March 1930): 682–705.CrossRefGoogle Scholar For Witte's response and Frankfurter's concurrence, see Witte to Sayre, May 26, 1928, and Frankfurter to Witte, May 29, 1928, both in reel 102, Frankfurter Papers.

66. Ernst, Daniel R., “The Labor Exemption, 1908–1914,” Iowa Law Review 74 (July 1989): 1166, 1156–57Google Scholar; Witte to Sayre, May 26, 1928, Brissenden Papers. Witte could later praise the act for embodying “the policy of neutrality”—a harder claim to make had the statute enacted a substantive exemption. Chicago Daily News, July 7, 1932, in Edwin Emil Witte Papers, Labor-Management Documentation Center of the New York State School of Industrial and Labor Relations, Ithaca, New York.

67. William Leiserson, quoted in Tomlins, State and the Unions, 113. See generally Gross, James A., The Making of the National Labor Relations Board (Albany, 1974), 7–39Google Scholar; Tomlins, State and the Unions, 103–113; Irons, Peter H., The New Deal Lawyers (Princeton, N.J., 1982), 203–07.Google Scholar

68. Tomlins, State and the Unions, 115, 118; Gross, Making, 98–99; Irons, New Deal Lawyers, 211.

69. Leiserson to Wagner, March 8, 1934, in Tomlins, “Triumph of Industrial Pluralism,” 25; Special Committee on the Role of Government in Labor Relations, Twentieth Century Fund, Minutes of the Third Meeting, January 18, 1935, in ibid., 27.

70. Keyserling recalled that he received “a good deal of help” in drafting the Wagner Act from Milton Handler. Casebeer, Kenneth M., “Holder of the Pen: An Interview with Leon Keyserling on Drafting the Wagner Act,” University of Miami Law Review 42 (November 1987): 303.Google Scholar For Keyserling's familiarity with legal realism, see Keyserling, Leon H., “Social Objectives in Legal Education,” Columbia Law Review 33 (March 1933): 437–61.CrossRefGoogle Scholar

71. Congressional Record 78 (March 1, 1934): 3443, in National Labor Relations Board, Legislative History of t he National Labor Relations Act, 1935, 2 vols. (Washington, 1949), 1:15.Google Scholar

72. Leiserson to Stanley Mathewson, September 27, 1935, quoted in Tomlins, “Triumph of Industrial Pluralism,” 29. On Witte and the Wisconsin Labor Relations Board, see Schlabach, Cautious Reformer, 205–07, and Holter, Darryl, “Labor Law and the Road to Taft-Hartley: Wisconsin's ‘Little Wagner Act,’ 1935–1945,” Labor Studies Journal 15 (Summer 1990): 20–47.Google Scholar

73. Joseph A. Padway, Brief for Appellants, AFL v. NLRB, 308 U.S. 401 (1940), quoted by Tomlins, State and the Unions, 179.

74. Leiserson to Commons, May 11, 1939, in Eisner, Leiserson, 18; Leiserson to Commons, March 27, 1940, U.S. Congress, Hearings Before the House Special Committee to Investigate the National War Labor Relations Board, 76th Cong., 2d sess. (1940), vol. 24, pt. 1, 4978.

75. Leiserson to Commons, November 22, 1940, quoted by Tomlins, “Triumph of Industrial Pluralism,” 33. For Leiserson's dissatisfaction with Roosevelt's wartime policy, see Eisner, Leiserson, 44–46.

76. Leiserson, William M., Right and Wrong in Labor Relations (Berkeley, 1942), 85–86.Google Scholar Leiserson delivered this lecture in April, 1937, before his appointment to the NLRB.

77. Louis Marshall to James Weldon Johnson, May 10, 1928, in Louis Marshall: Champion of Liberty, ed. Reznikoff, Charles, 2 vols. (Philadelphia, 1957), 1:425Google Scholar; Hill, Herbert, Black Labor and the American Legal System: Race, Work, and the Law (Madison, 1985), 97–106.Google Scholar

78. United States Pipe & Foundry Co. v. Steel Workers Organizing Committee (CIO), December 5, 1939, p. 74 (Edward Grandison Smith, Trial Examiner), Transcripts and Exhibits, File 1896, Box 2155, National Labor Relations Board Papers, Record Group 25, National Archives; In re United States Pipe & Foundry, NLRB (1940); Norrell, Robert J., “Caste in Steel: Jim Crow Careers in Birmingham, Alabama,” Journal of American History 73 (December 1986): 679.CrossRefGoogle Scholar

79. Oliphant's service in the Farm Credit Administration, Department of Treasury and the Temporary National Economic Committee gave him little occasion to pursue his earlier work on labor issues during the New Deal. New York Times, January 12, 1939.

80. Hook, Sidney, “Neither Myth Nor Power—A Rejoinder,” University of Chicago Law Review 5 (April 1938): 354.CrossRefGoogle Scholar

81. Who's Who in Law (New York, 1937), 1:684, s.v. “Nelles, Walter”; Nelles, Walter, A Liberal in Wartime: The Education of Albert DeSilver (New York, 1940), 121.Google Scholar On Frankfurter and Buckner, see Parrish, Michael E., Felix Frankfurter and His Times: The Reform Years (New York, 1982)Google Scholar; Mayer, Martin, Emory Buckner (New York, 1968): 22–40.Google Scholar

82. Nelles, Liberal in Wartime, 147–48, 121; New York Times, April 1, 1937. On the Masses trial, see Sayer, John, “Art and Politics, Dissent and Repression: The Masses Magazine Versus the Government, 1917–1918,” American Journal of Legal History 32 (January 1988): 42–78.CrossRefGoogle ScholarWalker, Samuel describes the raid on NCLB offices in In Defense of American Liberties: A History of the ACLU (New York, 1990), 38–39.Google Scholar

83. Nelles formally resigned as counsel on April 7, 1924, to devote more time to his research. He retained an informal relation with the ACLU, which turned to him for advice on many occasions in the late 1920s and early 1930s. Minutes of the Executive Committee of the American Civil Liberties Union (n.p., n.d.) (Firestone Library, Princeton University), vol. 2, April 7, 1924; see also ibid., January 19, 1925, April 2, 1928.

84. Roger Nash Baldwin, “The Reminiscences of Roger Nash Baldwin,” Columbia Oral History Project, 1953–54, p. 57, in Roger N. Baldwin Papers, Box 26, Seeley G. Mudd Manuscript Library, Princeton University. A student who worked closely with Nelles at Yale similarly recalled him as “introverted, bookish, rather ill at ease with people, an obviously good and kind man, deeply moved by injustice.” Sam Mermin to Daniel Ernst, January 1, 1991 (in my possession).

85. Pound, Roscoe, The Formative Era of American Law (Boston, 1938), 88.Google Scholar Pound was reacting to Nelles's dismissive treatment of “the taught legal tradition” in “Commonwealth v. Hunt,” Columbia Law Review 32 (November 1932): 1159. Cf. Gordon, Robert, “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review 10 (Fall 1975): 39.Google Scholar

86. Curtis, Bruce, William Graham Sumner (Boston, 1981), 124–28Google Scholar; Charles Fay to Charles Seymour, January 11, 1946, quoted in Kalman, Legal Realism at Yale 148–49.

87. Persons, Stow, The Decline of American Gentility (New York, 1973), 244.Google Scholar

88. Sumner, William Graham, Folkways: A Study of the Sociological Importance of Usages, Manners, Customs, Mores and Morals (Boston 1906), 28–30, 39, 45, 46, 47.Google Scholar

89. Nelles, Walter, “A Strike and Its Legal Consequences—An Examination of the Receivership Precedent for the Labor Injunction,” Yale Law Journal 40 (February 1931): 507CrossRefGoogle Scholar; Nelles, “Chapter VII: Breaking the Knights of Labor,” p. 132, vol. 159C, ACLU Papers; Nelles, “Towards Legal Understanding,” 1046, 1051.

90. Nelles to Witte, March 29, 1930, Box 1, Edwin Emil Witte Papers, State Historical Society of Wisconsin, Madison.

91. Nelles to Baldwin, October 25, 1928, Baldwin to Joseph Chamberlain, February 27, 1929, vol. 340, ACLU Papers. Charles E. Clark refers to Nelles's study in “The Interborough Brief,” American Federaiionist, 35 (September 1928): 1065–66.

92. Nelles, A Liberal in Wartime, 121.

93. Nelles, review of Cohen, Felix S., Ethical Systems and Legal Ideals, Columbia Law Review 33 (April 1933): 767Google Scholar; cf. Purcell, Crisis, 91–92. Nelles's language at 768 (“I believe that we should better our chances of approach towards it [a good society] if we could entirely eliminate ethical right and ought from our thoughts and language”) echoed Holmes's in “The Path of the Law” (“For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether”). Holmes, “Path of the Law,” 179.

94. Walter Nelles, review of Cairns, Huntington, Law and the Social Sciences, Georgetown Law Journal 25 (January 1937): 522.Google Scholar

95. Nelles, “Towards Legal Understanding,” 1046 n. 19.

96. Nelles, review of Cohen, 767–78; Walter Nelles, review of Wormser, I. Maurice, Frankenstein, Incorporated, American Bar Association Journal 18 (April 1932): 258.Google Scholar Nelles's quotation is from one of Madison's speeches during the Federal Convention. Nelles regularly used it as a formulation of a universal, common good.

97. Nelles, Liberal in Wartime, 134; Nelles, review of Wormser, 258; Nelles to Witte, March 29, 1930, Witte Papers.

98. Nelles and Mermin, “Holmes and Labor Law,” 529–30, 546–47, 553–54, 555.

99. Mermin to Ernst, January 1, 1991.

100. Sumner had a similar effect on the young Karl Llewellyn. But for “the early and deep-cut influences of Sumner's writings,” Llewellyn wrote in 1924, “I should now hold some obnoxious fighting faith and be stump-speaking a vigorous progress into jail.” “Non-Conformist Puzzles over Education,” Llewellyn MSS, quoted in Twining, William, Karl Llewellyn and the Realist Movement (London, 1973), 93.Google Scholar

101. Arnold, Symbols, 270–71.

102. Arnold to Harold J. Laski, January 9, 1936, in Voltaire and the Cowboy: The Letters of Thurman Arnold, ed. Gressley, Gene M. (Boulder, Colo., 1977), 217.Google Scholar

103. Arnold, Symbols, 6, 250; Arnold to Laski, January 9, 1936, in Voltaire and the Cowboy, 217; Arnold, Thurman, “Judge Jerome Frank,” University of Chicago Law Review 24 (Summer 1957): 637, 634–35.Google Scholar

104. Arnold, Symbols, 270–71.

105. Ibid., 229, 100; Arnold to Laski, February 28, 1936, in Voltaire and the Cowboy, 224; Arnold, Folklore of Capitalism (New Haven, 1937), 120, 342.

106. Arnold, Symbols, 10; Arnold to Jerome Hall, April 11, 1935, in Voltaire and the Cowboy, 206.

107. Levi, Edward H., “Thurman Arnold,” Yale Law Journal 79 (May 1970): 984.Google Scholar

108. Lemer, Max, “The Shadow World of Thurman Arnold,” Yale Law Journal 47 (March 1938): 692, 702, 703Google Scholar; Lerner, Max, “Capitalism and Magic,” Nation 146 (January 8, 1938): 46–47.Google Scholar On Lerner in the 1930s, see Kalman, Legal Realism at Yale, 138; Lerner, Max, “We Were All Reds Then,” Vogue 172 (April 1982): 318, 378.Google Scholar

109. Arnold, Folklore, 177; see also Arnold to Edward H. Levi, December 11, 1937, in Voltaire and the Cowboy, 267. For a thorough assessment of Arnold's place in twentieth-century social thought, consult Kearny, Edward N., Thurman Arnold, Social Critic: The Satirical Challenge to Orthodoxy (Albuquerque, 1970), 6–60.Google Scholar

110. Arnold, Thurman, “Theories about Economic Theory,” Annals of the American Academy of Political and Social Science 172 (March 1934): 31CrossRefGoogle Scholar; Arnold to Oliver M. Thomason, June 19, 1936, in Voltaire and the Cowboy, 231; Lerner, “Shadow World,” 701.

111. Arnold, Folklore, 4; Thurman Arnold, “Labor Technique,” review of When Labor Organizes, by Robert R.R. Brooks, Yale Review, n.s., 27 (Winter 1938): 418–19. For a defense of the sit-down strike by one of Arnold's colleagues, see Green, Leon, “The Case for the Sit-Down Strike,” New Republic 90 (March 24, 1937): 199–201.Google Scholar On Remington Rand and its “Mohawk Valley formula,” see Bernstein, Irving, Turbulent Years: A History of the American Worker, 1933–1941 (Boston, 1970), 478–79.Google Scholar

112. Arnold, “Labor Technique,” 418; Arnold, Symbols, 216–18, 115–16.

113. “Statement of Thurman W. Arnold, Assistant Attorney General of the United States before the Temporary National Economic Committee with Respect to the Application of Antitrust Laws to Labor Unions, Thursday, February 13, 1941,” p. 1, File 60–194–0, Box 3496, Department of Justice Papers, Record Group 60, National Archives; see Brinkley, Alan, “The New Deal and the Idea of the State,” in The Rise and Fall of the New Deal Order, 1930–1980, ed. Fraser, Steve and Gerstle, Gary (Princeton, 1989), 90–91.Google Scholar

114. My figures are based on an excellent research paper written under my direction, W. Kenneth Ferree, “Antitrust Policy and the Labor Exemption: Thurman Arnold's Prosecutions of Labor Organizations” (Georgetown University Law Center, 1991). I am grateful to Mr. Ferree for permission to cite his findings. I have also profited from consulting research materials generated by another student, Laura L. Spaulding, while preparing her paper, “The Folklore of Thurman Arnold” (Georgetown University Law Center, 1989). The three CIO locals were fishermen's unions located on the West Coast.

115. Arnold's lawyers intervened on the side of CIO unions in several jurisdictional disputes between the two federations. Arnold to Robert H. Jackson, February 21, 1941, in Voltaire and the Cowboy, 313; Thurman Arnold, “Statement of Thurman W. Arnold, Assistant Attorney General of the United States, before the Temporary National Economic Committee, with Respect to the Application of Antitrust Laws to Labor Unions,” February 13, 1941, p. 4 (“T.N.E.C. Statement”), File 60–194–0, Box 641, Department of Justice Papers.

116. Arnold to D. R. Barnecle, November 18, 1939, File 60–194–0, Box 644, Department of Justice Papers, reprinted in Arnold, Thurman W., Bottlenecks of Business (New York, 1940), 249–53Google Scholar; Arnold, “T.N.E.C. Statement,” February 13, 1941, p. 2.

117. American Federation of Labor, “Analysis of Thurman Arnold's Statement Made before the T.N.E.C. on February 13th, 1941,” pp. 1, 8, File 60–194–0, Box 3496, Department of Justice Papers.

118. Epstein, Henry, “Against Application of Anti-Trust Laws to Labor Organizations,” in Trade Unions and the Anti-Trust Laws, ed. Johnson, Julia E. (New York, 1940), 188Google Scholar (Address before the National Lawyers' Guild, Washington, D. C, January 12, 1940); “The Folk-Law of Thurman Arnold,” International Juridical Association Monthly Bulletin 8 (December 1939): 53, 61–64, reprinted in ibid, 219; Lerner, Max, “Trust-Buster's White Paper,” New Republic 103 (September 16, 1940): 390.Google Scholar

119. Kirchwey, Freda, “Blunderbuss,” Nation 149 (December 2, 1939), 597Google Scholar; AFL, “Analysis,” 14; Henry Epstein to Franklin D. Roosevelt, November 21, 1939, File 60–194–0, Box 645, Department of Justice Papers.

120. On the Legal Process school, see Wellington, Harry, Labor and the Legal Process (New York, 1968)Google Scholar; Peller, Gary, “Neutral Principles in the 1950s,” Michigan Journal of Law Reform 21 (Summer 1988): 561–622.Google Scholar

121. Arnold to Arthur Sulzberger, January 25, 1940, in Voltaire and the Cowboy, 304. See also Thurman Arnold, “The Antitrust Laws and Labor,” in Trade Unions and the Antitrust Laws, 88, 91, 92 (Address delivered before American Labor Club, New York City, January 27, 1940).

122. The Cahns themselves drew the connection between pro-consumer and public-interest lawyering. Edgar S. and Cahn, Jean Camper, “Power to the People or the Profession? The Public Interest in Public Interest Law,” Yale Law Journal 79 (May 1970): 1005–48.CrossRefGoogle Scholar See also McCraw, Thomas K., “Regulation in America: A Review Article,” Business History Review 49 (Summer 1975): 179.CrossRefGoogle Scholar

123. Hamilton, Walton, “Anti-Trust v. the Trade Union,” New Republic 102 (April 15, 1940): 496.Google Scholar

124. Arnold, Bottlenecks, 289, 280–81. On Arnold's “progressive moralism,” see Ayer, Douglas, “In Quest of Efficiency: The Ideological Journey of Thurman Arnold in the Interwar Period,” Stanford Law Review 23 (June 1971): 1052–58.CrossRefGoogle Scholar On the demise of the progressives' notion of a unitary public good and the rise of pluralism in political culture, see Rodgers, Daniel T., Contested Truths: Keywords in American Politics Since Independence (New York, 1987), 176–211.Google Scholar

125. Arnold to Freda Kirchwey, December 14, 1939, in Voltaire and the Cowboy, 298; Arnold to Lerner, December 20, 1939, in ibid., 299; Arnold to Reed Powell, February 21, 1941, in ibid., 317.

126. Arnold to Reed Powell, April 19, 1941, in Voltaire and the Cowboy, 318–19; Arnold to Edwin E. Witte, November 22, 1941, File 6–194–0, Box 645, Department of Justice Papers; Arnold, Thurman W., “Labor's Hidden Hold-Up Men,” Reader's Digest 38 (June 1941): 136–40.

127. Witte, “Mr. Arnold's Proposed Antilabor Amendments, 452–53, 455–56, 457–58.

128. Fumer, Mary O., “Knowing Capitalism: Public Investigation and the Labor Question in the Long Progressive Era,” in The State and Economic Knowledge: The American and British Experiences, ed. Furner, Mary O. and Supple, Barry (Cambridge, 1990), 244–45.Google Scholar

129. Ibid., 286.

130. See Stone, “Post-War Paradigm.”

131. Sollors, Werner, Beyond Ethnicity: Descent and Consent (New York, 1986), 13Google Scholar; see also Sollor's, “Of Mules and Mares in a Land of Difference; or, Quadrupeds All?” American Quarterly 42 (June 1990): 167–90.CrossRefGoogle Scholar

132. Arnold, Symbols, 10; Hook, Sidney, “The Folklore of Capitalism: The Politician's Handbook—A Review,” University of Chicago Law Review 5 (April 1938): 345–47.CrossRefGoogle Scholar