Still “Learning Something of Legislation”: The Judiciary in the History of Labor Law

Catherine Fisk

doi:10.1111/j.1747-4469.1994.tb00395.x

1 E.g., Thomas Geoghegan, Which Side Are You On? Trying to Be for Labor When It's Flat on It's Back (New York: Farrar, Straus & Giroux, 1991).Google Scholar

2 Rogers, Joel, “Divide and Conquer: Further ‘Reflections on the Distinctive Character of American Labor Laws,’” 1990 Wis. L. Rev. 1; Weiler, Paul, “Striking a New Balance: Freedom of Contract and the Prospects for Union Representation,” 98 Harv. L. Rev. 351 (1984); id., “Promises to Keep: Securing Workers' Rights to Self-organization under the NLRA,” 96 Harv. L. Rev. 1769 (1983).Google Scholar

3 U.S.C. § 151 et seq. (1988). The literature criticizing the NLRA as irrelevant, ineffectual, and/or oppressive is too vast to cite it all here. See notes 65–66 in & for selected citations. Recent literature defending the NLRA against these charges is difficult to find.Google Scholar

4 See Derek Bok, “Reflections on the Distinctive Character of American Labor Laws,” 84 Harv. L. Rev. 1394, 1417 (1971); Nelson Lichtenstein, “From Corporatism to Collective Bargaining: Organized Labor and the Eclipse of Social Democracy in the Postwar Era,” in Steve Fraser & Gary Gerstle, eds., The Rise and Fall of the New Deal order, 1930–1980 at 122 (Princeton, N.J.: Princeton University Press, 1989) (“Fraser & Gerstle, Rise and Fall”).Google Scholar

5 29 U.S.C. §§ 1001 et seq. (1988).Google Scholar

6 See, e.g., Milt Freudenheim, “Medical Insurance Is Being Cut Back for Many Retirees,” N.Y. Times, 28 June 1992, p. 1; Robert Pear, “US. Is to Argue Employers Can Cut Health Insurance,” N.Y. Times, 16 Oct. 1992, p. A1; Jonathan Hicks, “Court Says USX Tried to Avoid Paying Benefits,” N.Y. Times, 6 Nov. 1992, p. C2.Google Scholar

7 McGann v. H & H Music Co., 946 F.2d 401 (5th Cir.), cert. denied, 113 S.Ct. 482 (1992); Owens v. Storehouse, 984 F.2d 394 (11th Cir. 1993); Musto v. American General Corp., 861 F.2d 897 (6th Cir. 1988), cert. denied, 490 U.S. 1020 (1989); Moore v. Metropolitan Life Ins. Co., 856 F.2d. 488 (2d. Cir. 1988). In one case, an employer drafted a benefit plan that provided benefits and the procedure for determining employee eligibility for them. But the plan also reserved to the employer the right, “in an individual case or more generally, to alter, reduce or eliminate any … benefit, in whole or in part, without notice.” In other words, the plan provided that an employee would be entitled to benefits only when the employer deemed appropriate. When the employer denied benefits to an eligible employee, the Third Circuit upheld the denial. The court justified its holding by saying that employees could of course “bargain further [with their employer] or seek other employment if they are dissatisfied with their benefits,” and that the regime of free contract actually “furthers the interest of employees.” This must have come as a surprise to the employee who discovered that the promised benefits were in fact not promised. Hamilton v. Air Jamaica, Ltd., 945 F.2d 74 (3d Cir. 1991), cert. denied, 112 S.Ct. 1479.Google Scholar

8 Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155 (3d Cir. 1990).Google Scholar

9 Lochner v. New York, 198 US. 45 (1905), held unconstitutional as interfering with liberty of contract a state statute restricting the hours of work in bakeries.Google Scholar

10 Although the National Labor Relations Act was not a repudiation of the essential notion of free contract but in fact embraced the notion of free collective contracts, it nevertheless was premised on a congressional finding that there existed an “inequality of bargaining power between employees who do not possess full freedom of association or actual liberty of contract, and employers who are organized in the corporate or other forms of ownership association.” 29 U.S.C. § 151 (1988).Google Scholar

11 See, e.g. David Brody, “The Old Labor History and the New: In Search of an American Working Class,” 20 Labor Hist. 111 (1979); Sean Wilentz, Chants Democratic: New York City and the Rise of the American Working Class, 1788–1850 (New York: Oxford University Press, 1984) (“Wilentz, Chants Democratic”); Ira Katznelson, City Trenches: Urban Politics and the Patterning of Class in the United States (Chicago: University of Chicago Press, 1981); Leon Fink, Workingmen's Democracy: The Knights of Labor and American Politics (Urbana: University of Illinois Press, 1983).Google Scholar

12 William E. Forbath, “Law and the Shaping of Labor Politics in the United States and England,” in Christopher Tomlins & Andrew King, eds., Labor Law in America 201 (Baltimore: Johns Hopkins University Press, 1992) (“Forbath, ‘Law and Labor Politics’”). A longer version of that essay is Forbath, “Courts, Constitutions, and Labor Politics in England and America: A Study of the Constitutive Power of Law,” 16 Law & Soc. Inquiry 1 (1991). Forbath cites Diane Avery, “Images of Violence in Labor Jurisprudence: The Regulation of Picketing and Boycotts, 1891–1921,” 37 Buff & L. Rev. 1 (1989), and William Howard Taft, “The Right of Private Property,” 3 Ma. L. Rev. 215, 218–19 (1894).Google Scholar

13 On the role of labor in the campaign for social welfare legislation, see Theda Skocpol, Protecting Soldiers and Mothers: The Political Origins of Social Policy in the United States (Cambridge, Mass.: Harvard University Press, Belknap Press, 1992) (“Skocpol, Protecting Soldiers and Mothers”); Roy Lubove, The Struggle for Social Security, 1900–1935 (Pittsburgh, Pa.: University of Pittsburgh Press, 1986) (“Lubove, Struggle for Social Security”); Paul Starr, The Social Transformation of American Medicine (New York: Basic Books, 1982) (“Starr, Social Transformation of American Medicine”); David Abraham Moss, “The Political Economy of Insecurity: The American Association for Labor Legislation and the Crusade for Social Welfare Reform in the Progressive Era” (Ph.D. Diss., Yale University, 1992).Google Scholar

14 See sources cited supra note 13.Google Scholar

15 There are limits to this point; as I will suggest below, one must be very cautious in suggesting that the paltry coverage of the American welfare state today was caused by the actions of the national leaders of the AFL 80 years ago.Google Scholar

16 Fox, Daniel M. & Schaffer, Daniel C., “Semi-Preemption in ERISA: Legislative Process and Health Policy,” 7 Am. J. Tax Pol'y 47, 51 (1988).Google Scholar

17 Hattam and Forbath both provide lengthy bibliographic footnotes on these alternative accounts of labor history. See Hattam at 21–33 nn.31–44, and Forbath at 10–13 nn.1–10.Google Scholar

18 That the judges were the principal actors in the state repression of working class insurgency is not as improbable a claim as it might seem to those accustomed to a late 20th-century vision of government, for in the much smaller pre-New Deal state, the judiciary occupied a proportionally larger share of the policymaking and administrative function than it does now. Until the New Deal, most of the law that regulated labor was the common law of master and servant and criminal conspiracy. Government labor policy, if one could dignify it with the name of policy, was that common law doctrine. Crucially, judges and lawyers could carry on more continuous and intellectually self-conscious conversations with one another than did legislative representatives, who tended to serve only for very brief terms, creating very high rates of turnover in Congress and the state legislatures. Arguably, therefore, the judicial sector of the American polity became the first to achieve the institutional memory that must underpin any sort of continuous policymaking. Theda Skocpol, Protecting Soldiers and Mothers 70–71. See also Stephen Skowronek, Building a New American State: The Expansion of New Administrative Capacities, 1877–1920 (New York: Cambridge University Press, 1982).Google Scholar

19 See Forbath at 40–42; Hattam at 159–61. See Samuel Gompers, Seventy Years of Life and Labor: An Autobiography, ed. Nick Salvatore (Ithaca, N.Y.: ILR Press, 1984) (“Gompers, Seventy Years”).Google Scholar

20 Jacobs, , 98 N.Y. 98, 104 (Ct. App. 1885).Google Scholar

21 Gompers, , Seventy Years 61.Google Scholar

22 Id. at 62. Both Hattam and Forbath recount this episode and quote Gompers's autobiography on it. See Hattam at 160 and Forbath at 42.Google Scholar

23 Most of these monikers seem to have been coined after the fact by historians. Gompers himself used the expression “trade unions pure and simple. Gompers, Seventy Years 115.Google Scholar

24 An earlier account of the role of the An's voluntarism, among other political forces, in defeating and narrowing social insurance legislation is James Weinstein, The Corporate Ideal in the Liberal State, 1900–1918 (Boston: Beacon Press, 1968) (“Weinstein, Corporate Ideal”).Google Scholar

25 Witte, Edwin, “Early American Labor Cases,” 35 Yale L.J. 825 (1926); Hovenkamp, Herbert, “Labor Conspiracies in American Law, 1880–1930,” 66 Texas L. Rev. 919 (1988); Holt, Wythe, “Labour Conspiracy Cases in the United States, 1805–1842: Bias and Legitimation in Common Law Adjudication,” 22 Osgoode Hull L.J. 591 (1984).Google Scholar

26 Commonwealth v. Pullis (1806). A complete transcript of the case is found in John R. Commons, Elrick B. Philips, Eugene A. Gilmore, Helen L. Sumner, & John B. Andrews, eds., 3 A Documentary History of American Industrial Society 59–248 (Cleveland: Arthur H. Clark, 1910).Google Scholar

27 My colleague John Nockleby pointed out to me that the Cordwainers case is sui generis in that it was the only case in which combination itself was criminalized; as Hattam notes (at 57–58), in subsequent cases prosecutors charged, in addition to combination, the use of means such as coercion or the pursuit of ends such as monopoly or restraint of trade that were illegal at common law outside the realm of labor organizing. See John Nockleby, “Two Theories of Competition in Early Nineteenth Century Labor Cases,” forthcoming in Am. J. Legal Hist. (1994).Google Scholar

28 An intriguing question, but one beyond the scope of this essay, is whether or to what extent this transformation in labor law reflected a general shift in the focus of American law. My intuitive sense is that it did. The rise of the subjective notion of contractual obligation, in which the courts were principally concerned not with what was a just or fair exchange but rather with what the contracting parties intended, shifted the focus of commercial law from the public concern with fair bargains to a concern with private arrangements and private rights. See Morton Horwitz, The Transformation of American Law, 1780–1860 chap. 6 (Cambridge, Mass.: Harvard University Press, 1977); P. s. Atiyah, The Rise and Fall of Freedom of Contract (New York: Oxford University Press, 1979).Google Scholar

29 In this respect, Hattam contributes to an ongoing refinement of the notion of working-class consciousness. Although Hattam faults Sean Wilentz's study of working-class development in antebellum New York for focusing unduly on a degree of class consciousness that she believes had not emerged before the Civil War and, consequently, “misinterpret[ing] the nature and significance of artisan protest before the Civil War” (at 88), Wilentz himself critiqued the earlier generation of political and social historians, who, he thought, erred in using “a concept of class that now seems rudimentary,” in that it constitutes “a series of flat, fixed social categories (proletarians, capitalists), lacking in historical specificity and explanatory power.” Wilentz, Chants Demon & 7 (cited in note 11).Google Scholar

30 On this point, see Daniel T. Rodgers, The Work Ethic in Industrial America, 1850–1920 (Chicago: University of Chicago Press, 1978).Google Scholar

31 On the changes in work relations that occurred during industrialization, see Wilentz, Chants Democratic, and for a later period, David Montgomery, The Fall of the House of Labor: The Workplace, the State, and American Labor Activism, 1865–1925 (New York: Cambridge University Press, 1987) (“Montgomery, Fall of the House”).Google Scholar

32 See, e.g., Archibald Cox, Derek Bok, Robert Gorman, & Matthew Finkin, Labor Law Cases and Materials 8 (11th ed. Westbury, N.Y.: Foundation Press, 1991) (“Criminal prosecution fell into disuse by mid-century”).Google Scholar

33 Forbath, William E., “The Shaping of the American Labor Movement,” 102 Harv L. Rev. 1109 (1989).Google Scholar

34 Felix Frankfurter & Nathan Greene, The Labor Injunction (Gloucester, Mass.: Peter Smith, repr. ed. 1963) (“Frankfurter & Greene, The Labor Injunction”).Google Scholar

35 Forbath at 65, quoting 158 US. 564, 592 (1895).Google Scholar

36 Hattam, in contrast, places less weight on the threat to judicial authority after the Civil War; in her view, “[t]he problem of judicial authority largely had been solved in the antebellum trials” (at 72). Whereas Hattam focuses on labor's challenge to the individualist bent of common law doctrine, Forbath focuses on labor's threat to the courts' institutional authority.Google Scholar

37 U.S. 522 (1915).Google Scholar

38 U.S. 418 (1911).Google Scholar

39 Forbath, , “Courts, Constitutions and Labor Politics in England and America: A Study of the Constitutive Power of Law,” 16 Law & Soc. Inquiry 1, 20 n.73 (1991); and Hattam at 165 n.132.CrossRef Google Scholar

40 Frankfurter, & Greene, , The Labor Injunction 207.Google Scholar

41 Even into the early 19th century in the United States, laws restricted workers' ability to quit their jobs. See Robert J. Steinfeld, The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350–1870 (Chapel Hill: University of North Carolina Press, 1991) (“Steinfeld, The Invention of Free Labor”).Google Scholar

42 Mass. 555 (1871).Google Scholar

43 Mass. 1 (1870).Google Scholar

44 Notwithstanding the prefatory language in the NLRA about the equality of management and labor, judges have construed the statute to perpetuate 19th-century norms of managerial prerogative and worker obedience. See James B. Atleson, Values and Assumptions in American Labor Law (Amherst: University of Massachusetts Press, 1983) (“Atleson, Values and Assumptions”).Google Scholar

45 NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).Google Scholar

46 See, e.g., Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991); Joel Handler, Social Movements and the Legal System: A Theory of Law Reform and Social Change (New York: Academic Press, 1978); Michael McCann, “Reform Litigation on Trial,” 17 Law & Soc. Inquiry 715 (1993); Malcolm Feeley, “Hollow Hopes, Flypaper, and Metaphors,” 17 Law & Soc. Inquiry 745 (1993); Gerald Rosenberg, “Hollow Hopes and Other Aspirations: A Reply to Feeley and McCann,” 17 Law & Soc. Inquiry 761 (1993).Google Scholar

47 Hattam's study of England is the fifth chapter of her book. Forbath's is found in a separate article and essay, “Courts, Constitutions, and Labor Politics in England and America: A Study of the Constitutive Power of law,” 16 Law & Soc. Inquiry 1 (1991); and his “Law and Labor Politics” at 201–30 (cited in note 12).CrossRef Google Scholar

48 Forbath, “Law and Labor Politics” at 215.Google Scholar

49 John V. Orth, Combination and Conspiracy: A Legal History of Trade Unionism, 1721–1906 (New York: Oxford University Press, 1991) (“Orth, Combination and Conspiracy”). On British labor law of this era, also see Michael Klarman, “The Judges versus the Unions: The Development of British Labor Law, 1867–1913,” 75 Va. L. Rev. 1487 (1989).Google Scholar

50 For example, Orth, Combination and Conspiracy 14849, observes: In 1901 in Quinn v. Leathern the House of Lords upheld a judgment against trade union officers for civil conspiracy. Defendants had threatened to strike against an employer's business customers in order to induce the employer to fire non-union workmen. … Key to [the employers‘] success was the notion that an act lawful for one could be actionable if performed by many acting together. In addition to accepting that proposition, the House of Lords in Quinn also held that trade unionists’ motives' to raise wages did not privilege them to combine to injure an employer, even though it had held in an earlier case that a cartel of businessmen (a trade union of a different sort) could injure a competitor with impunity so long as they were motivated by a desire to improve their own economic position.Google Scholar

51 See Forbath, “Law and Labor Politics” at 213 n.58, and Hattam at 3.Google Scholar

52 These were crucial years, for they saw the passage of workers' compensation legislation and the first defeat of public health care legislation in New York and California. The AFL's decision may therefore have had significant consequences. See Lubove, Struggle for Social Security 66–90 (cited in note 13); Starr, Social Transformation of American Medicine 243–57 (cited in note 13); Skocpol, Protecting Soldiers and Mothers 250–47 (cited in note 13); and Irwin Yellowitz, Labor and the Progressive Movement in New York State, 1897–1916 (Ithaca, N.Y.: Cornell University Press, 1965).Google Scholar

53 Lubove, Struggle for Social Security 85 (cited in note 13); Weinstein, Corporate Ideal 43–44 (cited in note 24). On the job consciousness of unions, see David Brody, Workers in Industrial America: Essays on the Twentieth Century Struggle (2d ed. New York: Oxford University Press, 1993) (“Brody, Workers in Industrial America”).Google Scholar

54 See sources cited in note 52.Google Scholar

55 Forbath notes that Hillman had a more optimistic view of government than did Gompers but does not make a sustained effort to account for their differences (at 119–20; 163–65). Of course, a more detailed examination of Hillman and the Amalgamated would be beyond the scope of their work, and they did not have the benefit of the definitive new work on Hillman, Steven Fraser's Labor Will Rule: Sidney Hillman and the Rise of American Labor (New York: Free Press, 1991) (“Fraser, Labor Will Rule”).Google Scholar

56 Fraser, , Labor Will Rule 41.Google Scholar

57 Id. at 163 (quoting a letter from Frankfurter to Hillman, 30 March 1920, Box 67, Felix Frankfurter papers, Library of Congress).Google Scholar

58 Muller v. Oregon, 208 U.S. 412 (1908).Google Scholar

59 Fraser, Labor Will Rule 164–65.Google Scholar

60 See Steve Fraser, “The Labor Question” in Fraser & Gentle, eds., Rise and Fall (cited in note 4).Google Scholar

61 Ernst, Daniel R., “Common Laborers? Industrial Pluralists, Legal Realists, and the Law of Industrial Disputes, 1915–1943,” 11 Law & Hist. Rev. 59 (1993).CrossRef Google Scholar

62 Fraser, Labor Will Rule 165.Google Scholar

63 Nor was the AFL's voluntarism a consistent stand, and this, too, is important to Forbath's and Hattam's argument. The AFL's decision to support the First World War, when others in the labor movement opposed it, and its collaboration with the Wilson administration, when others in the labor movement were struggling to start a progressive third party, were inconsistent with its voluntarism. These decisions also led the AFL into persecution of socialists in the labor movement and to its “dismal conservatism” of the 1920s. Brody, Workers in Industrial America 42 (cited in note 53). A full account of the effect of law on labor politics would need to trace the effect of the injunction and criminal conspiracy cases through not only the adoption of business unionism but also into the other aspects of the AFL's political strategy.Google Scholar

64 Among the first generation of labor historians, one must count John R. Commons and his associates at the University of Wisconsin, who produced the massive four-volume History of Labour in the United States (New York: Macmillan Co., 1918–35), as well as Commons's student Selig Perlman, who wrote the classic A Theory of the Labor Movement (Philadelphia: Porcupine Press, 1928). Archibald Cox was an eminent defender of the law of collective bargaining; see his Law and the National Labor Policy (Los Angela: UCLA Institute of Industrial Relations, 1960).Google Scholar

65 See, e.g., James Weinstein, The Decline of Socialism in America, 1912–1925 (New York: Vintage Books, 1967); Staughton Lynd, “Government without Rights: The Labor Law Vision of Archibald Cox,” 4 Indus. Relations L.J. 483 (1981); Karl Klare, “The Judicial Deradicalization of the Wagner Act and the Origins of Modem Legal Consciousness, 1937–1941,” 62 Minn. L. Rev. 265 (1978); Katherine Van Wezel Stone, “The Post War Paradigm in American Labor Law,” 90 Yale L.J. 1509 (1981); Brody, Workers in Industrial America (cited in note 48); David Montgomery, Workers' Control in America: Studies in the History of Work, Technology, and Labor Struggles (New York: Cambridge University Press, 1979); Montgomery, Fall of the House (cited in note 31). A commendable historiographic essay on labor and voluntarism is Joseph Tripp, “Law and Social Control: Historians' Views of Progressive-Era Labor Legislation,” 28 Labor Hist. 447 (1987).Google Scholar

66 Examples of the new approach include Christopher L. Tomlins's influential book, The State and the Unions: Labor Relations, Law and the Organized Labor Movement in America, 1880–1960 (New York: Cambridge University Press, 1985), as well as his recent Law, Labor, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993) (“Tomlins, Law, Labor, and Ideology”). In a different vein there is Rogers, 1990 Wis. L. Rev. 1 (cited in note 2).Google Scholar

67 James Atleson wrote the seminal study (Values and Assumptions; cited in note 44) of the persistence of 19th-century assumptions in 20th-century labor law; the three books in some sense account for the phenomenon that he described.Google Scholar

68 Other noteworthy books in this field published in the past two years besides those reviewed here include Tomlins. Law, Labor, and Ideology (cited in note 66); Orth, Combination and Conspiracy (cited in note 49); Steinfeld, Invention of Free Labor (cited in note 41); and Tomlins & King, Labor Law in America (cited in note 12). Another recent book that deserves note in this context is Steven Fraser's definitive biography of Sidney Hillman (labor Will Rule; cited in note 55); in addition to being a fine biography, it is an impressive political history of labor in the New Deal Political scientists joining Hattam and Omen in working these fields include Theda Skocpol, Protecting Soldiers and Mothers (cited in note 13), and Ruth O'Brien, “‘Business Unionism’ versus ‘Responsible Unionism’: Common Law Confusion, the American State and the Formation of Pre-New Deal Labor Policy,” 18 Law & Soc. Inquiry 255 (1993).CrossRef Google Scholar

69 See Atleson, Values and Assumptions (cited in note 44).Google Scholar

70 See Richard A. Ippolito, Pensions, Economics and Public Policy (Philadelphia: Pension Research Council, Wharton School, University of Pennsylvania, 1986). The Occupational Safety and Health Act is another example of a regulatory regime more likely to be enforced effectively in workplaces with an empowered workforce than otherwise. See Michael O. Parsons, “Worker Participation in Occupational Health and Safety: Lessons from the Canadian Experience,” 13 Labor Stud. J. No. 4 (Winter 1988); Les Boden & David Wegman, “Increasing OSHA's Clout: Sixty Million New Inspectors,” 6 Working Papers for a New Society 43 (May/June 1978).Google Scholar

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Still “Learning Something of Legislation”: The Judiciary in the History of Labor Law

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