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7 The author would like to thank one referee for suggesting the use of the term “responsible unionism.” This term is generally associated with the conservative coalition of Republicans' and Southern Democrats' quest for the passage of the Taft-Hartley Amendments of 1947 which amended the National Labor Relations Act of 1935 by placing unions and employers on equal footing before the National Labor Relations Board. See Nelson Lichrenstein, Labor's War at Home, the CIO in World War II 44–66 (Cambridge: Cambridge University Press, 1982); Tomlins, The State and the Unions 247–52.Google Scholar

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13 Edwin Merrick Dodd, American Business Corporations until 1860 (Cambridge: Harvard University Press, 1954). Legislative power of incorporation was first tested by the courts with Terrett V. Taylor, 9 Cranch 43 (1815), and Trustees of Dartmouth College v. Woodward, 1. N.H. 111 (1817).Google Scholar

14 For different interpretations of the history of the corporation and the American legal system see Morton Horwitz, The Transformation of American Law, 1780–1860 at 111 (New York: Cambridge University Press, 1977); Horwitz, Transformation 1870–1960 at 75; and Harry Scheiber, “Regulation, Property Rights, and Definition of ‘The Market’: Law and the American Economy,” 41 J. Econ. Hist. 106 (1981).Google Scholar

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19 In 1901, American labor union leaders saw their greatest fears realized when a British court handed down the Taff Vale opinion. The British court ruled that a union, as a quasi-corporate body, could sue or be sued in a court of law. See 40 (1) Monthly Lab. Rev. at 41 (cited in note 9); Trade Disputes Act of 1906, Statutes of the Realm, 6 Edw. 7, C. 47 (1906), sec. 3; Carroll D. Wright, “Consolidated Labor,” 174 (No. 542) N. Am. Rev. 42–45 (1902).Google Scholar

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27 Symposium by Professor John R. Commons, E. Lewis Evans, William D. Huber et al., “Amend the Sherman Anti-Trust Law,” 15 Am. Federationist 354–65 (1908).Google Scholar

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29 Gompers, and Brandeis, debated the subject in a public forum on 4 Dec. 1902. See Strum, Philip, Louis D. Brandeis, Justice for the People 104 (Cambridge: Harvard University Press, 1984); and Tomlins, The State and the Unions 87 (cited in note 2).Google Scholar

30 Tomlins, The State and the Unions 87–88.Google Scholar

31 Robert H. Wiebe, Businessman and Reform: A Study of the Progressive Movement 162 (3d ed. Chicago: Elephant Paperbacks, 1989) (“Wiebe, Businessmen and Reform”.).Google Scholar

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46 See Ernst, Daniel R., “The Labor Exemption, 1908–1914,” 74 Iowa L. Rev. 1151 (1989), for a provocative argument about ambiguity of the labor provisions in the Clayton Act.Google Scholar

47 Gompers, Samuel, “The Charter of Industrial Freedom,” 21 Am. Federationist 971–72 (1914).Google Scholar

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58 These courts, moreover, developed a “freedom to contract” doctrine, based on the due process clause, in which employers and workers had the right to contract at will without any legislative guidelines. The state courts first used this doctrine in the mid-1880s in Jones v. People, 110 III. 590 (1884); Millett v. People, 117 Ill. 294 (1886).Google Scholar

59 See Richard Franklin Hoxie, Trade Unions in the United States 216 (New York: D. Appleton & Co., 1920); Leon Duguit, “Collective Acts as Distinguished from ‘Contracts,’” 27 Yale L.J. 755 (1917–18). See, e.g., Chambers v. Davis, 128 Miss. 613, 91 So. 346 (1922).Google Scholar

60 Lack of Mutuality stems from the decision in Lumley V. Wagner, I. De Gax, M. & G. 604 (1852), in England. The Lord Chancellor St. Leonards enjoined the breach of an express negative promise where, according to the settled rules of governing the exercise of equitable jurisdiction, he would not, and did not, specifically enforce either the affirmative promise of the defendant or that of the plaintiff, stated Cook. The courts used lack of mutuality and did not enforce collective trade agreements in the following cases: Howard Peterson v. United Engraving Co. (Minn. Dist. Ct. 1922); St. Louis, Iron Mountain S. Ry. v. Matthews., 64 Ark. 398, 406, 42 S.W. 902, 904 (1897); St. Louis Brownsville & Mexico Ry. v. Booker, 5 S.W. (2d) 856, 859 (Tex. Civ. App. 1929), cert. denied, 279 S.W. 852 (1929); Epstein v. Gluckin, 233 N.Y. 490, 135 N.E. 861 (1922). Also see Walter Wheeler Cook, Cases and Other Authorities on Equity: Selected from Decisions of English and American Courts 151 (St. Paul: West Publishing Co., 1925); id, “The Present Status of the ‘Lack of Mutuality’ Rule,” 36 Yale L. J. 897 (1927); J. B. Ames, “Mutuality in Specific Performance,” 3 Colum L. Rev. 1 (1903); Harlan Fiske Stone, “The ‘Mutuality’ Rule in New York,” 16 Colum L. Rev. 443 (1916); Richard T. Witmer, “Collective Labor Agreements in the Courts,” 48 Yale L. J. 196, 204 (1938). See also St. Louis, Iron Mountain & S. Ry. Co. v. Mathews, 64 Ark. 398, 42 S.W. at 906 (1897). The Supreme Court of Arkansas cited the Railroad v. Scott, 10 S.W. 99 (Tex. Supp. 1888); Bolles v. Sachs, 37 Minn. 315, 33 N.W. 862 (1887). See, e.g., A. S. Barnes & Co. v. Berry, 169 Fed. 225 (1909).Google Scholar

61 A. S. Barnes & Co. v. Berry, 169 Fed.; Goyette v. C. V. Watson Co., 245 Mass. 577, 140 N.E. 285 (1923); Witmer, 48 Yale L.J. 196; and Christenson, Lawrence C., “Legally Enforceable Interests in American Labor Union Working Agreements,” 9 Ind L.J. 73 (1933). Also see, e.g., Burnetta v. Marceline Coal Co., 180 Mo. 241, 79 S.W. 136, 139 (1904); West v. Baltimore & O.R.R., 137 S.E. 654 (1927); Gary v. Central of Georgia Ry. Co., 141 S.E. 819 (1928); and Ruggles v. Int'l Ass'n of Iron Workers, 331 Mo. 20, 52 S.W. 2d, 869 (1932), for cases where trade agreements were not viewed by the courts as contracts).Google Scholar

62 See Paul, Arnold M., “Legal Progressivism, the Courts, and the Crisis of the 1890s,” 17 Bus. Hist. Rev. 499 (1959). Progressive judges were reacting to the state and federal court judges, who were predominantly conservative. Also see Fine, Laissez Faire and the General Welfare State 128; Jacobs, Law Writers and the Courts 45–51.Google Scholar

63 Felix Frankfurter & Nathan Greene, The Labor Injunction (New York: Macmillan Co., 1930).Google Scholar

64 See Rice, William Gorham, “Collective Labor Agreements in American Law,” 44 Harv. L. Rev. at 607 (1931); and Agger, Carolyn E., “Equitable Relief and Damages at Law,” 8 Marq. L. Rev. 258 (1934).CrossRefGoogle Scholar

65 To determine whether a judge was conservative or progressive, I found bibliographic material to substantiate each claim, for instance, in the National Cycopedia of American Biography, Who's Who in America, and historical state journals.Google Scholar

66 See e.g., A. S. Barnes & Co. v. Berry, 169 Fed. 225 (1909); Goyette v. C. V. Watson Co., 245 Mass. 577, 140 N.E. 285 (1923); Witmer, Richard T., “Collective Labor Agreements in the Courts,” 48 Yale LJ. 196 (1938); and Lawrence C. Christenson, “Legally Enforceable Interests in American Labor Union Working Agreements,” 9 Ind. L.J. 73 (1933); Wesley A. Sturges, “Unincorporated Association as Parties to Actions,” 33 Yale L.J. 390, 404–5 (1924.CrossRefGoogle Scholar

67 See, e.g., Hudson v. Cincinnati, New Orleans & Tex. Pac. Ry., 152 Ky. 711, 154 S.W. 47 (1913); West v. Baltimore &. O.R.R., 137 S.E. 654 (1927); Young v. Canadian N.R.R., 4 D.L.R. 452, 2 W.W.R. 385 (1929); 3 D.L.R. 352, 1 W.W.R. 446 (1930); Gregg v. Starks, 188 Ky. 834, 224 S.W. 459 (1920); Keysaw v. Dotterseich Brewing Co., 121 App. Div. 58, 105 N.Y. Supp. 562 (4th Dep't 1907); Moody v. Model Glass Co., 145 Ark. 197, 224 S.W. 436 (1920); Cross Mountain Coal Co. v. Auk, 157 Tenn. 461, 9 S.W. (2d) 692 (1928); U.S. Daily Publishing Corp. v. Nicholas, 32 Fed. (2d) 834 (App. D.C. 1929); Mastell v. Salo, 140 Ark. 408, 215 S.W. 583 (1919); Langmade v. Olean Brewing Co, 137 App. Div. 355, 121 N.Y. Supp. 388 (4th Dept. 1910); Gulickson v. Seglin Constr. Co., 273 N.Y. Supp. 908 (County Ct. 1934); Kessel v. Great N.R.R, 51 Fed. (2d) 304 (W.D. Washington 1931); Yazoo & Mo. Valley R.R. v. Webb, 64 Fed. (2d) 902 (C. C. A. 5th 1933); Burnetta v. Marceline Coal Co., 180 Mo. 241, 79 S.W. 136 (1904). Also see John R. Commons & John B. Andrews, Principles of Labor Legislation 389 (New York: Harper & Bros., 1916), p. 389.Google Scholar

68 Byrd v. Beall, 150 Ala. 122, 43 So. 749, 124 Am. St. Rep. 60 (1907).Google Scholar

69 Id.Google Scholar

70 West v. Baltimore & O.R.R., 137 S.E. 654 (1927); Keysaw v. Dotterweich Brewing Co. 121 App. Div. 58, 105 N.Y. Supp. 562 (4th Dep't 1907); Gary v. Central of Ga. Ry. Co., 37 Ga. App. 744, 141 S.E. 819 (1928).Google Scholar

71 Hudson v. Cincinnati, 152 Ky. 711, 154 S.W. 47 (1913); Burnetta v. Marceline Coal Co., 180 Mo. 241, 79 S.W. 136 (1904); West v. Baltimore & O.R.R., 137 S.E. 654 (1927); Ribner & Webber v. Gilchrist Co. v. Metal Polishers Union, 113 Atl. 320 (N.J. Ch. 1919).Google Scholar

72 See, e.g., Burnetta v. Marceline Coal Co., 180 Mo. 241, 79 S.W. 136 (1904); West v. Baltimore & O.R.R., 137 S.E. 654 (1927); Cross Mountain Coal Co. v. Ault, 157 Tenn. 461, 9 S.W. (2d) 692 (1928); Mastell v. Salo, 140 Ark. 408, 215 S.W. 583 (1919).Google Scholar

73 Quoted from Rice, 44 Harv. L. Rev. at 584 (cited in note 64).Google Scholar

74 Piercy v. Louisville & Nashville Ry., 248 S.W. 1042 (1923).Google Scholar

75 See, e.g., Gulla V. Barton, 164 App. Div. 293, 149 N.Y. Supp. 952 (1914); Mueller v. Chicago and N. Western Ry., 194 Minn. 83, 259 N.W. 798 (1935); Yazoo & Mo. Valley R.R. v. Sideboard, 161 Miss. 4, 133 So. 669 (1931); Rentschler v. Missouri Pac. R.R., 126 Neb. 493, 253 N.W. 694 (1934); Johnson v. American Ry. Exp. Co., 163 S.C. 191, 161 S.E. 473 (1931); Marshall v. Charleston & W. Car. Ry., 164 S.C. 283, 162 S.E. 348 (1931); Hall v. St. Louis-San Francisco Ry. Co., 28 S.W.2d 687 (Mo. App 1930); Donavon v. Travers, 285 Mass. 167, 188 N.E. 705 (1934).Google Scholar

76 Gulla v. Barton, 164 App. Div. 293, 149 N.Y. Supp. 952 at 953 (1914), 953.Google Scholar

77 Affirming this case in 1926, a progressive judge on the Ohio Court of Appeals held in H. Blum & Co. v. Landau (23 Ohio App. 426, 155 N.E. 154 (1926) that “it clearly appears that the contract between the Garment Manufacturers' Association and the International Ladies' Garment Workers' Union was a contract made for the benefit of third parties.” Judge John J. Sullivan, a Rooseveltian progressive Republican, delivering the opinion declared “that such a contract as the one at bar is enforceable there can be no question.”.Google Scholar

78 See, e.g., Whiting Milk Co. v. Grondin, 282 Mass. 41, 184 N.E. 379 (1933); Hamilton, Milo Fowler, “Individual Rights Arising from Collective Labor Contracts,” 3 Mo. L. Rev. at 256 (1928); “Collective Labor Agreements,” 31 Colum L. Rev. at 1160 (1931); Anderson, Grant T., “Collective Bargaining Agreements,” 15 Ore. L. Rev. at 241 (1936).Google Scholar

79 See, e.g., H. Blum & Co. v. Landau, 23 Ohio App. 426, 155 N.E. 154 (1926); Hamilton, 3 Mo. L. Rev. at 256; Anderson, 15 Ore. L. Rev. at 242; Agger, 8 Marq. L. Rev.Google Scholar

80 Agger, 8 Marq. L. Rev. at 257.Google Scholar

81 See, e.g., Schlesinger v. Quinto, 194 N.Y. Supp. 401 (1922); Gary v. Central of Ga. Ry. 44 Ga. App. 120, 160 S.E. 716 (1931); Hall v. St Louis-San Francisco Ry., 244 Mo. App. 431, 28 S.W. (2d) 687 (1930); McCoy v. St. Joseph Belt R., 77 S.W. (2d) 175, 179 (Mo. App. 1934); Piercy v. Louisville & Nashville Ry., 198 Ky. 477, 248 S.W. 1042 (1923); West v. Baltimore & O.R.R., 103 W. Va. 417, 137 S.E. 654 (1927); Snow Iron Works v. Chad-wick, 227 Mass. 382, 390, 116 N.E., 801, 806 (1917); Mosshamer v. Wabash Ry., 221 Mich. 407, 408, 191 N.W. 210, 211 (1922); Boucher v. Godfrey, 119 Conn. 622, 178 Atl. 655 (1935).Google Scholar

82 A. S. Barnes & Co. v. Berry, 169 Fed. 225 (1909).Google Scholar

83 Id at 240.Google Scholar

84 Id; Rice, 44 Harv. L. Rev. at 594 (cited in note 64).Google Scholar

85 Schlesinger v. Quinto, 194 N.Y. Supp. 401 (1922). The union involved negotiated a collective trade agreement with the Cloak, Suit and Skirt Manufacturers' Protective Association, which the latter association violated.Google Scholar

86 Id at 410.Google Scholar

87 When Warren G. Harding became president, one of his first concerns was to ensure that the Supreme Court remained an old guard stronghold. Harding had little trouble maintaining the conservative character of the Court since the four Justices preceding Taft had been appointed by Republican presidents. Justices William Rufus Day and Joseph Mc-Kenna had been appointed by William McKinley and Theodore Roosevelt, respectively. Two of Taft's appointments from his own term as president, Willis Van Devanter and Mahlon Pitney, were still on the Court in 1921. President Woodrow Wilson's three appointments to the Court, Louis D. Brandeis, James C. Clarke, and James R. McReynolds, had little impact on the conservative majority. McReynolds joined this conservative majority in most of his opinions; only Brandeis and Clarke voted with Oliver Wendall Holmes, becoming part of a permanent minority. Harding had the opportunity to appoint more old guard Republicans during his three-year administration when Justices Day and Pitney retired in 1922 and 1923, respectively. Harding placed the “eminently conservative” Pierce Butler and Edward T. Sanford on the Taft Court. Justice John H. Clarke, a progressive Democrat appointed by Wilson, left the Court in 1922, permitting Harding to nominate George Sutherland, a western old guard Republican, who believed in the legal equivalent of “rugged individualism,” and gave the Court an even stronger conservative majority. Finally, Joseph McKenna stepped down in 1925, and Harding's successor, Calvin Coolidge, nominated his Attorney General, the then conservative Harlan Fiske Stone. Taft to Justice Edward Sanford, 25 Jan. 1927; and Taft to Horace Taft, 1 Dec. 1929, Taft Papers (cited in note 53). See Alpheus Thomas Mason, “William Howard Taft” in Leon Friedman, comp., 3 Justices of the Supreme Court, 1789–1969: Their Lives and Major Opinions 2078, 2081–82 (New York: Chelsea House Publishers, 1969) (“Mason, ‘Taft’”).Google Scholar

88 United Mine Workers v. Coronado Coal Co., 259 U.S. 344 (1922); and Coronado Coal Co. v. United Mine Workers, 268 U.S. 295 (1925).Google Scholar

89 Id.Google Scholar

90 Mason, , Organized Labor and the Law 218 (cited in note 48).Google Scholar

91 Mason, “Taft” at 2114.Google Scholar

92 United Mine Workers v. Coronado Coal Co., 259 U.S. at 390.Google Scholar

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94 Id at 391.Google Scholar

95 Tafr to Horace Tafi, 16 June 1922, Taft Papers (cited in note 53).Google Scholar

96 It has generally been agreed that the Coronado cases represented a turning point in labor history. See Tomlins, The State and the Union 90–91 (cited in note 2); Katherine Van Wezel Stone, “The Post-War Paradigm in American Labor Law,” 90 Yale L.J. 1518–21 (1981); Sturges, 33 Yale L.J. at 388 (cited in note 66); Stanley Ira Kutler, “The Judicial Philosophy of Chief Justice Taft and Organized Labor, 1921–1930” at 103 (Ph.D. diss., Ohio Stare University, 1960) (“Kutler, ‘Judicial Philosophy of Chief Justice Taft’”).Google Scholar

97 “Civil Liabilities of Members of Unincorporated Labor Unions,” 42 Harv. L. Rev. 551 (1929).Google Scholar

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100 Coronado Coal Co. v. United Mine Workers, 268 U.S at 300, 304.Google Scholar

101 “Notes,” 38 Colum. L. Rev. 455 (1938). This commentary on the second Coronado case explained “that in an action for damages against a voluntary unincorporated association, facts must be alleged and proved rendering all members of the association liable, that liability of members may be established by public acts of association itself or by acts of its officers.”.Google Scholar

102 Taft cites Loewe v. Lawlor, 208 U.S. 274 (1908), which made workers liable for conspiracy in restraint of trade under the Sherman Act.Google Scholar

103 Id. at 457.Google Scholar

104 United Mine Workers v. Coronado Coal Co., 259 U.S at 390.Google Scholar

105 The potential dangers of organized labor's newly established suable status were never realized, however. Only one state, which did not have an enabling statute ensuring that organized labor could be sued, used the Coronado precedent. No increase in the number of common law cases in which employers sued unions or unions sued employers was recorded in the 1920s or the early 1930s. See e.g., Varado v. Whitney, 166 Miss. 663, 147 So. 479, (1933); Francis W. Laurent, Comments, “Labor Law—Responsible in Tort of Voluntary Unincorporated Associations—Developments since the Coronado Case,” 12 Wis. L. Rev. 523 (1937); and “Notes,” 31 Colum. L. Rev. 257 (1931).Google Scholar

106 Bedford, 274 U.S. 37 (1927).Google Scholar

107 While Loewe v. Lawlor had sustained an injunction against an illegal restraint of trade, the Taft Court sustained an injunction against legal restraints of trade. See Loewe v. Lawlor, 208 US. 274 (1908).Google Scholar

108 The Bedford case represented the only important labor case for which Taft did not draft the majority opinion. See Kutler, “Judicial Philosophy of Chief Justice Taft,” at 118 (cited in note 96).Google Scholar

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114 Edwin W. Witte to Roger N. Baldwin, December 24, 1931, Edwin W. Witte Papers, University of Wisconsin, Madison (“Witte Papers”).Google Scholar

115 Gompers to Donald R. Richberg, 13 Sept. 1923, Donald R. Richberg Papers, Chicago Historical Society (“Richberg Papers”). Gompers mentioned Ralston's and Sayre's help and attached memorandums entitled, “An Act Concerning the Granting of Injunctions” and “An Act Concerning Labor Organizations”.Google Scholar

116 Donald, R. Richberg to George, W. Norris, , May 18, 1928, Norris Papers, Library of Congress; Cornelius Cochrane, “Public Opinion Flays Judicial Approval of ‘Yellow Dog’ Contracts,” 20 Am. Lab. Legis. Rev. 181–84 (1930).Google Scholar

117 Edwin E. Witte, “An Act to Define, Regulate, and Limit the Equity Jurisdiction of the Federal Courts,” 22 Dec. 1928, Witte Papers.Google Scholar

118 Gompers, Samuel, “The Charter of Industrial Freedom,” 21 Am. Federationist 971–72 (1914); William H. Taft, The Anti-mart Act and the Supreme Court 98–99 (New York: Harper & Bros., 1914); and Mason, “The Labor Clauses of the Clayton Act,” 18 Am. Pol. Sci. Rev. 494 (1924); and Taft to Judge Jeremiah Smith, 24 Dec. 1914, Taft Papers (cited in note 53).Google Scholar

119 See Cong. Rec., 53d Cong., 2d sess., 1914, 51, pt. 14: 13965.Google Scholar

120 See Ashby, , The Spearless Leader 78 (cited in note 44); Sarasohn, The Party of Reform 169 (cited in note 51); and Mason, Organized Labor and the Law 180 (cited in note 40). In the following decisions, the Taft Court undermined the labor relations provisions in the Clayton Act and held unions and union members fully accountable for violating antitrust in interstate commerce. Duplex Co. v. Deering, 254 U.S. 443 (1921); America Steel Foundries v. Tri-City Central Trade Council, 257 US. 184 ((1921); Truax v. Corrigan, 257 US. 312 (1921); Bedford, 274 U.S. 37 (1927).Google Scholar

121 Memorandum, n.d., Norris Papers.Google Scholar

122 Duplex v. Deering, 254 U.S. at 469.Google Scholar

123 John J. Blaine to Witte, 13 Feb. 1928; Witte to Blaine, 6 March 1928, Witte Papers.Google Scholar

124 Memorandum entitled “Arguments Supporting the Draft of a Bill Limiting the Power of Courts to Issue Labor Injunctions,” Jan. 1931, at h., Witte Papers (“Memorandum, Jan. 1931, Witte Papers”).Google Scholar

125 The Shipstead bill (S.1482) was introduced on 12 Dec. 1927. (It became S.2497 in the 71st Congress). See Kuczynski, Jurgen & Steinfield, Marguerite, “Wages in Manufacturing Industries, 1899–1927,” 35 Am. Federationist 834–35 (1928). Also see “Injunction before the Senate,” 35 Am Federationist 145 (1928); and Lowitt, Norris 520 (cited in note 40).Google Scholar

126 See Frankfurter, Felix & Greene, Nathan, “Congressional Power over the Labor Injunction,” 31 Colum. L. Rev. 386 (1931); Zucker, Norris 104 (cited in note 50); Memorandum, 11 Feb. 1928, AFL Papers; “Injunction Defenders,” 10 Law & Lab. 51 (1928); “The Labor Injunction Issue in Organized Labor's Own Nutshell,” 10 Law & Lab. 76 (1928).CrossRefGoogle Scholar

127 Memorandum entitled “Does the Thirteenth Amendment to the Constitution Amend the Fifth? Did Man Become Free?” by Andrew Furuseth, n.d.; and Joseph O. Carson to Norris, 23 Dec 1931, Norris Papers. The union leaders, however, had no reason to believe that the Taft Court would support substantive alterations in labor law. As one of his last acts as president, Taft vetoed the Hughes-Hamill rider attached to the 1913 Sundry Civil Appropriations bill which froze all Justice Department funds used for prosecuting unions or farm organizations under the Sherman Act. Taft called this backdoor exemption, making unions immune from the labor injunction, “class legislation of the most vicious sort.” Quoted from Arthur S. Link, 3 Wilson, the New Freedom 266 (Princeton, N.J.: Princeton University Press, 1956).Google Scholar

128 John J. Blaine to Witte, 13 Feb. 1928, Witte Papers. Sayre, a progressive legal scholar, also argued that “if labor believes the Shipstead bill will save all, [it] will be bitterly disappointed.”“Damage suits can bite deeper than injunctions.” Francis B. Sayre, “Labor and the Courts,” 39 Yale L.J. 683 (1930); and Blaine to Witte, 13 Feb. 1928, Witte Papers. Witte to Blaine, 6 March 1928, Witte Papers; and Witte to Blaine, 3 Nov. 1928, 14, 19, 28 July 1928, Witte Papers.Google Scholar

129 Frankfurter to Roger N. Baldwin, 9 Dec. 1931, Norris Papers. Sayre also queried if the Shipstead bill “unduly magnified [the labor injunction] as an injustice.” Sayre, 39 Yale L.J. 683. Also see Forbath, 102 Harv. L. Rev. at 1215 (cited in note 1), who argues that these progressive legislators and lawyers accepted the AFL's constitutional critiques about the labor injunction which relied on the First and Thirteenth amendments of the Constitution.Google Scholar

130 In May 1928, Norris asked progressive legal experts, who shared his views on anti-injunction proposals, to draft the first Norris substitute bill. Sayre, Witte, and Felix Frankfurter, and labor lawyers Herman Oliphant, who represented the Rapid Transit workers in the Interborough Rapid Transit Co., and Donald D. Richberg, counsel for the Four Railroad Brotherhoods, drafted this bill. At the time, Witte was the Chief Wisconsin Legislative Reference Librarian, Oliphant taught law at Columbia, Sayre and Frankfurter taught law at Harvard, and Richberg served as counsel for numerous progressive causes in addition to the Four Brotherhoods and the AFL. In drafting legislation, Richberg wrote to Norris that he was representing the public's interest rather than organized labor's interest. Drafting the first Norris substitute bill in 1928, the progressive drafting committee also reiterated the complaints of Norris, Blaine, and Walsh, against the AFL's proposals to restrict “government by injunction.” Referring to the Shipstead bill, Sayre, Witte, Frankfurter, Oliphant, and Richberg wrote that “the solution of this problem cannot be found in any short, sweeping prohibition.” Memorandum entitled an “Outline of Explanation of Bill Drafted to Limit and Define the Jurisdiction of the Federal Courts in Labor Cases,” n.d., Norris Papers (“‘Outline of Explanation’”).Google Scholar

131 Frankfurter Memorandum, reel 95, n.d., Felix Frankfurter Papers, Manuscript Division, Reference Department, Library of Congress (microfilm, Library of Congress) (“Frankfurter Papers”).Google Scholar

132 The Norris substitute bill echoed a definition of liberty of contract that had appeared in American Steel Foundries v. Tri-City Central Trade Council, 257 US. 184 (1921). Frankfurter Memorandum, reel 95, n.d., Frankfurter Papers.Google Scholar

133 “Outline of Explanation,” Norris Papers.Google Scholar

134 Quoted from Memorandum, Jan. 1931, at a., Witte Papers (cited in note 124).Google Scholar

135 Ruth O'Brien, “State-Building and Political Parties: The Creation of American Industrial Relations Policy in the 1920s” (Ph.d diss., University of California, Los Angeles, 1991). For other sources noting the importance of the railroad labor legislation in the 1920s on labor law, see Orren, Belated Feudalism 161–208 (cited in note 6); Tomlins, The State and the Unions 232, 234 (cited in note 2); and Howell Harris, “The Snares of Liberalism? Politicians, Bureaucrats, and the Shaping of Federal Labor Relations Policy in the United States, ca, 1915–1917,” in Steven Tolliday & Jonathan Zeitlin, eds., Shop Floor Bargaining and the State: Historical and Comparative Perspectives 160–62 (New York: Cambridge University Press, 1985).Google Scholar

136 Frankfurter Memorandum, reel 95, n.d., Frankfurter Papers.Google Scholar

137 Untitled memorandum on the Norris bill, n.d., reel 95, Frankfurter Papers.Google Scholar

138 See Christ, Jay Finley, “The Federal Anti-Injunction Bill,” 16 Ill. L. Rev. 535–36 (1932).Google Scholar

139 Frankfurter, & Greene, , 31 Colum. L. Rev. at 409 (cited in note 126).Google Scholar

140 Quoted from Memorandum, Jan. 1931, at h., Witte Papers.Google Scholar

141 Quoted from “Outline of Explanation,” Norris Papers (cited in note 130).Google Scholar

142 Memorandum, January 1931, at h., Witte Papers.Google Scholar

143 Frankfurter Memorandum, reel 95, n.d., Frankfurter Papers.Google Scholar

144 Quoted from “Outline of Explanation,” Norris Papers.Google Scholar

145 Memorandum, Jan. 1931, at k., Witte Papers (cited in note 124).Google Scholar

146 Frankfurter Memorandum, reel 95, n.d., Frankfurter Papers.Google Scholar

147 Id.Google Scholar

148 Id.Google Scholar

149 See, e.g., United Mine Workers v. Coronado Coal Co., 259 U.S. 344 (1922); and Coronado Coal Co. v. United Mine Workers, 268 US. 295 (1925).Google Scholar

150 “Outline of Explanation,” Norris Papers (cited in note 30).Google Scholar

151 Memorandum, Jan. 1931, at k., Wine Papers.Google Scholar

152 “Federation's Injunction Proposal,” 36 Am. Federationist 1301 (1929); and American Federation of Labor, Convention, Proceedings 352 (929).Google Scholar

153 The conflict between the AFL union leaders and the progressive legislative authors on and off the Senate Judiciary Committee went beyond the scope of these specific labor relations provisions. Each group accused the other group of misunderstanding the general equity abuse issue. Green gave a speech at the Association of American Law Schools, 29 Dec. 1929, AFL Papers; and Green to Witte, 11 Feb. 1930, Witte Papers.Google Scholar

154 On 26 November 1929, the AFL sent Norris a copy of his bill marked with revisions penned by Donald D. Richberg. Richberg drafted the AFL revisions in “Memorandum Concerning Amendments to Anti-Injunction Bill Suggested by the American Federation of Labor,” Norris to Witte, 6 March 1930, Witte Papers. Norris responded by sending these revisions to the original legislative authors of the Norris substitute bill for further scrutiny. Frankfurter to Norris, 28 Jan. 1930, Norris Papers. Frankfurter enclosed a memorandum on their opinion about the AFL amendments. The progressive labor legal scholars Witte, Oliphant, Sayre, and Frankfurter, in addition to the labor lawyer, Richberg, then redrafted the first Norris substitute bill. Frankfurter, Witte, and Oliphant wrote a long memorandum, “Observations on Amendments Proposed in the AFL to the Injunction Bill Drafted by the Sub-committee of the Senate Committee on the Judiciary,” n.d., Norris Papers, addressing all the implications and consequences that would result from the AFL's suggested changes. In December, these authors, in addition to Donald Richberg and Sayre, met in New Orleans to draft new legislation. The meeting was set to discuss the differences between the Norris substitute bill from the 70th Congress and the AFL revisions. Witte to Frankfurter, 6 Dec. 1929, Witte Papers. Norris was kept abreast of the legislative authors work in New Orleans. Frankfurter to Norris, 28 Jan. 1929, Norris Papers.Google Scholar

155 Green to Witte, 9 July 1928; Frankfurter to Oliphant, 19 June 1928; Norris to Witte, 11 June 1928, Witte Papers; Witte to Blaine, 3 Nov. 1928; and Frankfurter to Witte, 15 June 1928; Witte to Blaine, 3 Nov. 1928, Witte Papers; “Critical Analysis by Special AFL Committee S.1482,” Box 198; “Proposed Anti-Injunction Legislation” memorandum found in Norris Papers.Google Scholar

156 In 1928, no hearings were held for the Norris substitute bill. Congress recessed in preparation for the upcoming presidential election before hearings could be scheduled. As a result, in 1929, Norris, Blaine, and Walsh reintroduced the Norris substitute bill in the first session of the 70th Congress. Senate Subcommittee of the Judiciary, “Defining and Limiting the Jurisdiction of the Courts Sitting in Equity,” Statement by Norris in the Senate Hearings, April 28, 1930, 72nd Cong., 2d sess., 1930, 22.Google Scholar

157 By this time, the composition of the Judiciary Committee itself had changed. The most obstructive old guard Republicans lost their positions on the committee: Charles S. Deneen and Frederick Gillett lost their seats in the Senate after the election of 1930; and Frederick Steiwer was appointed to serve on another committee. Norris explained that there had been “quite a change in the membership of the Senate Judiciary Committee. In addition to this the membership of the two parties was so close that the Democrats were entitled to a larger representation than they formerly had on this Committee. The new Democratic members were favorable to the anti-injunction bill.” Secretary John P. Robertson, 4 Nov. 1932, writing about Norris in the Norris Papers. Also see Frankfurter & Greene, 31 Colum L. Rev. at 385 (cited in note 126). The New Republic stated that “probably the most important bill now before Congress has nothing to do with the existing depression.” See “Anti-Injunction Bill,”New Republic, 2 March 1932, p. 55.Google Scholar

158 When the Judiciary Committee reconsidered the Norris substitute bill, they received impressive testimony from progressives from all different professions. Alexander Fleisher to Witte, 18 Dec. 1931, Witte Papers.Google Scholar

159 Cong. Rec., 72d Cong., 1st sess., 1932, 75, pt. 5: 5019; and Witte to John J. Blaine, 16 March 1932, Witte Papers.Google Scholar

160 Unlike Norris, LaGuardia had not spent much time on preparing anti-injunction legislation. Rather, he had been solicited by Norris and the anti-injunction lobby because of his credentials as a strong progressive Republican. Lowitt, Norris 524–26 (cited in note 40). See Cong. Rec., 72d Cong., 1st sess., 1932, 75, pt. 5: 5511–12, for the House vote.Google Scholar