>>> Item number 431, dated 94/01/16 14:39:40 -- ALL

Date:         Sun, 16 Jan 1994 14:39:40 -0600
Reply-To:     Legal History discussion list <H-LAW@UICVM.BITNET>
Sender:       Legal History discussion list <H-LAW@UICVM.BITNET>
From:         cfcrw@uxa.ecn.bgu.edu
Subject:      Chris Tomlins and the Law Turn

Recently there has been discussion on the cause of the decline of American Unions which has occurred on the Labor-L and H-Labor lists. It produced the following message from Chris Tomlins. I want to add that some of the disucssants have stressed other-than-legal reasons. Seth Wigderson, moderator H-Labor

Date: Fri, 14 Jan 1994 17:03:02 CST
From: "christopher tomlins" <clt@merle.acns.nwu.edu> Subject: H-Labor Discussion: Union decline and related matters

Please Post
From: Chris Tomlins, American Bar Foundation

I have been following the union decline discussion with much interest, particularly the recent development of a "law turn" in the contributions. I'd like to offer this reflection which is both stimulated by the discussion and offers further materials that those interested in the law turn may want to pursue, and which tries to speak to the nature of the "law turn" per se.

The law turn seems to me to reflect a trajectory in evidence in labor history at large, to the extent that one can now point to a group of people who are all actively working in different aspects of what is beginning to be termed "labor law history." Key contributions in the development of this tendency have already been mentioned, e.g. Jim Atleson, Values and Assumptions in American Labor Law (1983). People should al look at the earlier well-known articles by Karl Klare, "Judicial Deradicalization of the Wagner Act," 62 Minn Law Rev 265 (1978), and "Labor Law as Ideology," 4 Ind Rel.s Law Jo. 450 (1981) [The latter is a contrib debate which also features work by Staughton Lynd, "Government Without Rights," and comments by Mel Dubofsky and Duncan Kennedy, all in the same issue.] More recently, excellent articles, mostly appearing in law reviews, have been written by Atleson, Ken Casebeer and Joel Rogers. See, in particular, the latter's "Divide and Conquer: Further Reflections on the Distinctive Character of American Labor Laws in Wisc. Law Rev (1990).

More recent work has come in the form of books. These have tended to concentrate on the shaping of the legal environment for collective organization and bargaining up to and through the New Deal, and (in some cases) the consequences of this. Those coming to mind, in no particular order, are: Anthony Woodiwiss, Rights V. Conspiracy: A Sociological Essay on the History of Labour Law in the US (1990); Willy Forbath, Law and the Shaping of the American Labor Movement (1991) [this is a revision of a long 1989 Harvard Law Rev essay]; Karen Orren, Belated Feudalism: Labor, the Law and Liberal Development in the United States (1991); Victoria Hattam, Labor Visions and State Power: The Origins of B United States (1992). A very recent addition is William Ross, A Muted Fury: Populists, Progressives and Labor Unions Confront the Courts, 1890-1937 (1994) [this author/title ref. may be inaccurate in some slight respects: I am citing it from memory]. Dan Ernst will soon publish his history of the American Anti-Boycott Association, and has written a number of very good articles on the pre-New Deal period. For cites see the bibliography mentioned below. Likewise, Ruth O'Brien has a good piece "Business Unionism versus Responsible Unionism: Common Law Confusion, the American State, and the Formation of Pre-New Deal Labor Policy," in 18 Law & Social Inquiry 255 (1993). A few years earlier than these I published The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880-1960 (1985). Law & Social Inquiry is also carrying a group review of Hattam, Forbath and Orren, with responses, in an up-coming issue [v.19, #1]

People familiar with this work will know that it has begun trending away from the initial tendency to identify "labor law" as collective b law, pushing toward writing histories of the law of the employment relationship, and it has also begun pushing back from the 20th century. See Robert Steinfeld, The Invention of Free Labor: The Employment Relation in English and American Law and Culture, 1350-1870 (1991); Marc Linder, The Employment
Relationship in Anglo-American Law: A Historical Perspective (1989). My own Law, Labor and Ideology in the Early American Republic (1993) is also in this vein. For a sampler of the range of ongoing activity, together with a 40 p. bibliography that includes most of the stuff cited above, see Tomlins and King ed.s, Labor Law in America: Historical and Critical Essays (1992). There's more in the works, both from people whose names may not be familiar to historians (eg Ken Casebeer, Craig Becker and Lea VanderVelde, all legal academics), and those who are (eg Amy Stanley). 1994 will see books from Montgomery (just out) and Dubofsky (soon out) that reflect the
influence of this genre. Brody's and Lichtenstein's essays in the recent Harris/Lichtenstein collection on Industrial Democracy both canvass labor law/industrial jurisprudence in the context of union decline (which is where we started). In other words it's catching on all over the place. I guess the point of all this is to underline that (a) there is a real history and historiography of labor law in process, (b) that interested historians need to tap into this, not rely for their definitions and understandings of labor law on present-minded legal academics like Weiler whose agendas and writing are in essence ahistorical, and whose resort to history is generally both perfunctory and whiggish [in the sense that history is what you use to establish a kind of necessitarian track that leads one into the present and then blends into the ba Gould's recent book on labor law reform. I'm not attacking Weiler or Gould here, and we should all read their work. But we should not rely on them for properly historical explanations of the legal phenomena they write about]; and (b) that it is an historiography which is rapidly spilling beyond the specifics of collective bargaining into all the relationships in which "labor" is constituted. Stay tuned.