1 Among the classic social theorists, Max Weber's work offers a powerful critique of such reductionism, although one that often goes unheeded, even by Weber's followers. See Beetham, David, Max Weber and the Theory of Modern Politics (London: Allen & Unwin, 1974). There is also a recent sociological and political science literature criticizing the “sociological determinism” or “functionalism” of much of our thinking about politics and political development. See, e.g., P. Evans, D. Rueschemeyer, & T. Skocopol, eds., Bringing the State Back In (Cambridge: Cambridge University Press, 1985) (“Evans et al., Bringing the State Back In”). Among legal academics, Robert Gordon has written a number of superb essays whose central themes are a critique of “legal functionalism” and an argument for the “constitutive power” of law in society. See especially Robert Gordon, “Critical Legal Histories,” 36 Stan. L. Rev. 57 (1984); “Historicism in Legal Scholarship,” 90 Yale LJ. 1017 (1981).Google Scholar

2 Thus this comparative essay offers a new approach to some of the problems I address in William, E. Forbath, “The Shaping of the American Labor Movement,” 102 Harv. L. Rev. 1109 (1989). For a modestly expanded version of that work see William E. Forbath, Law and the Shaping of the American Labor Movement (forthcoming, Cambridge: Harvard University Press, 1991) (“Forbath, Law”).Google Scholar

3 The best discussions of Taft's role are found in Avery, “Images of Violence in Labor Jurisprudence: The Regulation of Picketing and Boycotts, 1891–1921,” 37 Buffalo L Rev. 1 (1989);Hurvitz, , “American Labor Law and the Doctrine of Entrepreneurial Property Rights: Boycotts, Courts, and Juridicial Reorientation,” 8 Indus. Rel. L. J. 307 (1986).Google Scholar

4 See Avery, 37 Buffalo L. Rev. at 18–35.Google Scholar

5 William, Howard Taft, “The Right of Private Property,” 3 Mich. L Rev. 215, 218–19. The metaphor was familiar from Madison's famous use of it in the Federalist Papers and from such opinions of Chief Justice Marshall's as Fletcher v. Peck. Throughout his writings and opinions, Judge Taft linked the Federalist legacy with the present contest between majoritarian politics and collective action on one hand and the “rights of property” on the other.Google Scholar

6 Id. at 218.Google Scholar

7 Id. at 233.Google Scholar

8 Id. at 218.Google Scholar

9 Id. at 233.Google Scholar

10 See Bloch, Marc, “Toward a Comparative History of European Societies” in Lane, Frederic C. &. Riemersma, J., eds., Enterprise and Secular Change: Readings in Economic History (London: Allen &. Unwin, 1953); Sewell, William H., Jr., “Marc Bloch and the Logic of Comparative History,” 6 Hist. & Theory 208 (1967).Google Scholar

11 The following brief examination of the American “exceptionalism” debate distills the more detailed discussion and argument in Forbath, Law (cited in note 2).Google Scholar

12 The phrases are from Selig Perlman's classic, A Theory of the Labor Movement (New York: Macmillan, 1923).Google Scholar

13 See Edwards, Paul K., Strikes in the United States, 1881–-1974. (Oxford: Blackwell, 1981); Montgomery, David, “Strikes in the Nineteenth Century,” 4 Soc. Sci. Hist. 81 (1980); Brecher, Jeremy, Strike! (San Francisco: Straight Arrow Books, 1972).Google Scholar

14 See Sean, Wilentz, “Against Exceptionalism: Class Consciousness and the American Labor Movement, 1790–1920,” 26 Int. Lab. & Working-Class Hist. 1, 3–4 (citing authorities) (1984); Aristide Zolberg, “How Many Exceptionalisms?” (“Zolberg, ‘How Many Exceptionalisms?’”) in Katznelson, I. &. Zolberg, A., eds., Working-Class Formation: Nineteenth-Century Patterns in Western Europe and the United States 397–436 (Princeton, N.J.: Princeton University Press, 1986) (“Katznelson & Zolberg, Working-Class Formation”).Google Scholar

15 See Forbath, 102 Harv. L. Rev. at 1121–23 (cited in note 2) and works cited therein.Google Scholar

16 See Fink, Leon, Workingmen's Democracy: The Knights of Labor and American Politics 229 (Urbana: University of Illinois Press, 1983) (“Fink, Workingmen's Democracy”).Google Scholar

17 See Knights, Peter, The Plain People of Boston, 1830–1860, 100–101 (1971); Shergold, Peter R., Working Class Life: The “American Standard” in Comparative Perspective (Pittsburgh: University of Pittsburgh Press, 1982); James Holt, “Trade Unionism in the British and U.S. Steel Industries, 1880–1914: A Comparative Study,” 18 Lab. Hist. 5 (1977).Google Scholar

18 See Henretta, James, “The Study of Social Mobility: Ideological Assumptions and Conceptual Biases,” 18 Lab Hist. 165 (1977); Howard P. Chudacoff, “Success and Security: The Meaning of Social Mobility in America” in Stanley L. Kutler et al., eds., The Promise of American History: Progress and Prospects (10 Reviews in Am. Hist.) (Baltimore: Johns Hopkins University Press, 1982); Margo Conk, “Social Mobility in Historical Perspective,” 3 Marxist Persp. 52 (1978).Google Scholar

19 See Zolberg, “How Many Exceptionalisms?” at 398, 426.Google Scholar

20 See id. at 418–25. See also Bernard H. Moss, The Origins of the French Labor Movement: The Socialism of Skilled Workers, 1830–1914 (Berkeley: University of California Press 1976); Joan Scott, “Social History and the History of Socialism,” 111 Le Mouvement Social 145 (1979).Google Scholar

It is worth noting that like the United States, France retained a significant portion of agricultural and other nonindustrial workers throughout the 19th and early 20th centuries; it never became an industrial society in the same degree as England. The percentage of the French labor force employed in the secondary or industrial sector in 1910 was 33%, roughly the same as the American figure of 32%. Thus neither slightness as a proportion of the entire industrial working class nor slightness as a proportion of the overall population prompted the French labor movement to adopt a minimalist politics a la Gompets and the AFL.Google Scholar

21 Ann, Orloff & Theda, Skocpol, “‘Why Not Equal Protection?’ Explaining the Politics of Public Social Spending in Britain, 1900–1911, and the United States, 1880s–1920,” 49 Am. Soc. Rev. 726 (1984).Google Scholar

22 See id. at 736.Google Scholar

23 If England was not dramatically different from the United States in regard to union density, it was unique along another, related dimension: the comparative vastness of its manual working classes as well as the relative slightness of its agricultural population. In 1910 industrial workers constituted 52% of England's and only 31% of America's population. See Zolberg, “How Many Exceptionalisms?” at 438 (cited in note 14). Moreover, the political lightness of the American working class, weighed against the rural vote or the whole voting population, was heightened by the nation's party and electoral systems.Google Scholar

24 See Wilentz, 26 Int. Lab. & Working-Class Hist, at 5 (cited in note 14); Eric Foner, “Class, Ethnicity and Radicalism in the Gilded Age,” 2 Marxist Perspectives 6 (1978); Herbert Gutman, Work, Culture and Society in Industrializing America 234–60 (New York: Vintage Books, 1976); Victor Greene, The Slavic Community on Strike: Immigrant Labour in Pennsylvania Anthracite 207–15 (South Bend, Ind.: University of Notre Dame Press, 1968); Joshua Freeman, “Catholics, Communists and Republicans: Irish Workers and the Organization of Transport Workers Union,” in Michael H. Frisch 4k Daniel J. Walkowitz, eds., Working-Class America: Essays on Labor, Community and American Society (Urbana: University of Illinois Press, 1983).Google Scholar

25 Recent works by two labor historians and a political scientist have made approaches much like mine to the origins of American labor voluntarism, emphasizing the role of law, state, and polity and drawing attention to the English experience. I have found all of them helpful. See Fink, Leon, “Labor, Liberty, and the Law: Trade Unionism and the Problem of the American Constitutional Order,” 74 J. Am. Hist. 904 (1987); Richard, Oestreicher, “Urban Working-Class Political Behavior and Theories of American Electoral Politics, 1870–1940,” 74 J. Am. Hist. 1257 (1988); Victoria Hattam, “Unions and Politics: The Courts and American Labor, 1806–1896” (Ph.D. diss., Massachusetts Institute of Technology, 1987) (“Hattam, 'Unions and Politics' ”); id., Economic Visions and Political Strategies: American Labor and the State, 1865–1896,” 4 Stud. Am. Pol. Dev. 82 (1990). In particular, Professor Hattam's work and mine have important themes in common. I discuss her work infra in notes 73, 74 and 80.Google Scholar

26 Taft, 3 Mich. L Rev. at 218 (cited in note 3).Google Scholar

27 See The Federalist No. 10 (James Madison), in Clinton Rossiter, ed., The Federalist Papers (New York: New American Library, 1961).Google Scholar

28 See Katznelson, Ira, “Working-Class Formation and the State,” in Evans et al., Bringing the State Back In 273 (cited in note 1).Google Scholar

29 See Commons, John R. & Andrews, John B., Principles of Labor Legislation 48–63 (New York: Harper ↦. Bros., 1936); Florence Kelley, Some Ethical Gains Through Legislation (New York: Macmillan, 1921). For a compelling account of some radical potentialities of American federalism, see Valelly, Richard M., Radicalism in the States: The Minnesota Farmer-Labor Party and the American Political Economy (Chicago: University of Chicago Press, 1989).Google Scholar

30 The Public Health, Factory and Mine Acts passed from mid-century onward engendered a dramatic growth of England's central government. See Sutherland, Gillian, Studies in the Growth of Nineteenth-Century Government (London: Rout ledge &. Kegan Paul, 1972); Pat Thane, “The Working Class and State Welfare in Britain,” 27 Hist. J. 877.Google Scholar

31 See Shefter, Martin, “Trade Unions and Political Machines: The Organization and Disorganization of the American Working Class” (“Shefter, ‘Trade Unions’”) in Katznel-son SL Zolberg, Working-Class Formation 197–276 (cited in note 14). For a contrasting account that underscores the salience of class-based issues in the development of the urban political machine, see Bridges, Amy, A City in the Republic: Antebellum New York and the Origins of Machine Politics (New York: Cambridge University Press, 1984).Google Scholar

32 See Kleppner, Paul, The Third Electoral System, 1853–1892 (Chapel Hill: University of North Carolina Press, 1979); Paul Kleppner, The Cross of Culture: A Social Analysis of Midwestern Politics, 1850–1900 (New York: Free Press, 1970); Oestreicher, 74 J. Am. Hist.Google Scholar

33 Verbatum, A [sic] Report of the Discussion on the Political Programme at the Denver Convention of the American Federation of Labor, December 14, 15, 1894, at 8 (New York: Freytag Press, 1895) (“Verbatum Report”).Google Scholar

34 This argument, about the relative timing of mass suffrage on one hand and civil service reform on the other, draws on Martin Shefter, “Party Bureaucracy and Political Change in the United States,” in Louis Maisel &. Joseph Cooper, eds., Political Parties, Development and Decay (Beverly Hills, Cal.: Sage Publications, 1978); id., “Party Patronage: Germany, England and Italy,”7 Politics & Soc'y 403 (1977). See also Orloff &. Skocpol, 49 Am. Soc. Rev. at 726 (cited in note 21).Google Scholar

35 See Shefter, “Party Bureaucracy and Political Change”; Morton Keller, “Anglo-American Politics, 1900–1930, in Anglo-American Perspective: A Case Study in Comparative History,” 22 Comp. Stud. Soc. & Hist. 458 (1980).CrossRefGoogle Scholar

36 See Gilbert, Bentley B., The Evolution of National Insurance in Great Britain: The Origins of the Welfare State chs. 5–7 (London: Michael Joseph, 1966) (“Gilbert, National Insurance”); Hugh Heclo, Modern Social Politics in Britain and Sweden 84–90 (New Haven, Conn.: Yale University Press 1974) (“Heclo, Modern Social Politics”); Orloff & Skocpol, 49 Am. Soc. Rev. at 737.Google Scholar

37 Nineteenth- and early twentieth-century American reformers were keenly attentive to the work and examples of their English counterparts. See, e.g., Baker, Elizabeth, Protective Labor Legislation, with Special Reference to Women in the State of New York 204, 334–50 (New York: Columbia University Studies in the Social Sciences, 1925) (“Baker, Protective Labor Legislation”); Andrews, John B., Labor Laws in Action 142–54 (New York: Harper 6k Bros., 1938). On the topic of English social reformers' influence on American colleagues, see Mann, Arthur, “British Social Thought and American Reformers of the Progressive Era,” 42 Miss. Valley Hist. Rev. 672 (1956); Morgan, Kenneth O., “The Future at Work: Anglo-American Progressivism, 1870–1917,” in Allen, Harry C. &. Roger Thompson, eds., Contrast and Connection: Bicentennial Essays in Anglo-American History (Columbus: Ohio University Press, 1976).Google Scholar

38 See Skowronek, Stephen, Building a New American State: The Expansion of National Administrative Capacities 47–55 (Cambridge: Cambridge University Press, 1982); Forbath, 102 Harv. L Rev. at 1126–30 (cited in note 2).Google Scholar

39 See Skowronek, Building a New American State 150–54.Google Scholar

40 See Marx, Karl I., Capital 401, 609 (Ben Fowkes trans., New York: Vintage Books, 1977).Google Scholar

41 Abraham, May Edith & Davies, A. Llewelyn, The Law Relating to Factories and Workshops, 1896, 12, 5th ed. (London: Eyre & Spottiswoode, 1902) (“Abraham &. Davies, Lau on Factories”); Report of the Chief Inspector of Factories and Workshops, 1896, 323–28 (London: HMSO, 1896).Google Scholar

42 For a knowledgeable American observer's account of the differences between English and American factory inspectors, see Price, George M., “Administration of Labor Laws and Factory Inspection in Certain European Countries,” 142 Bull. U.S. Bureau of Labor Statistics 24–25, 81–82 (Washington: Government Printing Office, 1914).Google Scholar

43 Brandeis, Elizabeth, “Labor Legislation,” in Brandeis, E. et al., eds., 3 History of Labor in the United States 626–32 (New York: Macmillan, 1935) (“Brandeis, ‘Labor Legislation’”).Google Scholar

44 See Kingsbury, Susan, Labor Laws and Their Enforcement 233–35 (New York: Arno Press, 1971 (orig. ed. 1911)) (“Kingsbury, Labor Laws”).Google Scholar

45 See, e.g., United States Industrial Commission (USIC), 12 Report of the Industrial Commission on the Relations and Conditions of Capital and Labor Employed in the Mining Industry 201–05 (Washington: Government Printing Office, 1901) (testimony of George Clark, miner-member of the Western Federation of Miners, Louisville, Colorado, July 17, 1899); see also id. at 56 (testimony of John Mitchell, President, United Mineworkers of America, Washington, D.C., 11 April 1899). For trade unionists in other trades comparing the factory laws and inspectorates of the U.S. with those of England see, e.g., USIC, 4 Report of the Industrial Commission on the Relations and Conditions of Capital and Labor Employed in Manufactures and General Business 198 (Washington: Government Printing Office, 1901) (testimony of Henry White); see also id. at 112–13 (testimony of McNeill, George E.).Google Scholar

46 USIC, 12 Report 201–2.Google Scholar

47 USIC, 4 Report 198.Google Scholar

48 See Brandeis, “Labor Legislation” at 633. On the size, powers, and responsibilities of state factory inspectorates see Baker, Protective Labor Legislation 281–84 (discussing New York's inspectorate); USIC, 14 Report of the Industrial Commission on the Relations and Conditions of Capital and Labor Employed in Manufactures and General Business 251 (Washington: Government Printing Office, 1901) (again, on New York's inspectorate); Pennsylvania Department of Factory Inspection, Annual Reports (Harrisburg, 1890–1900); James L. Barnard, Factory Legislation in Pennsylvania: Its History and Administration (Philadelphia: University of Pennsylvania, 1907); Illinois Department of Factory Inspection, Reports (Springfield, 1894–1900); Earl Beckner, A History of Illinois Labor Legislation (Chicago: University of Chicago Press, 1929); William R. Brock, Investigation and Responsibility: Public Responsibility in the U.S., 1865–1900, 148–84 (Cambridge: Cambridge University Press, 1984). On England's inspectorate See Mess, H.A., Factory Legislation and Its Administration (1926).Google Scholar

49 See Forbath, 102 Harv. L Rev. at 1148 n.168 (cited in note 2).Google Scholar

50 The story that follows of American labor's experiences with the nation's legal order is one that I have told elsewhere in great detail. See Forbath, 102 Harv. L Rev. at 1109–1256; see also Forbath, Law (cited in note 2).Google Scholar

51 For more detailed accounts of the outlook and activities of the Knights see Fink, Worrkingmen's Democracy (cited in note 16); Forbath, William, “The Ambiguities of Free Labor: Labor and the Law in the Gilded Age,” 1985 Wis. L Rev. 767; id., 102 Ham L Rev. at 1120–22 and works cited therein.Google Scholar

52 See Forbath, 102 Harv L. Rev. at 1123.Google Scholar

53 See id. at 1123–25.Google Scholar

54 Compare Abraham &. Davies, Law on Factories (cited in note 41) (England) with Kingsbury, Labor Laws (cited in note 44) (Massachusetts); USIC, 5 Report of the Industrial Commission on Labor Legislation 356–421 (Washington: Government Printing Office, 1900) (New York, Pennsylvania).Google Scholar

55 See Forbath, 102 Harv L Rev. at 1133 n.78, 1237–45.Google Scholar

56 Id.Google Scholar

57 See Verbatum Report (cited in note 33).Google Scholar

58 In a plebiscite vote in 1894, a majority of the AFL'S constituent unions endorsed the program. It met ultimate defeat at the 1894 convention, although most accounts agree that the defeat resulted from the “parliamentary sleight-of-hand” of Gompers and other Federation leaders. See Shefter, “Trade Unions” at 257 (cited in note 31); see also Joseph G. Rayback, A History of American Labor 198 (New York: Free Press, 1959); John R. Commons et al., 2 History of Labour in the United States 511–13 (New York: Macmillan, 1918).Google Scholar

59 Verbatum Report 19–20.Google Scholar

60 Id at 21.Google Scholar

61 Id.Google Scholar

62 Id.Google Scholar

63 See Forbath, 102 Harv L Rev. at 1134–42, 1220–27; USIC, Final Report 38.Google Scholar

64 During the first three decades of the 19th century, the courts and the laws of England, France, and Germany all flatly condemned strikes or combinations to raise wages or contest working conditions as criminal combinations or conspiracies. See Hepple, Bob, The Making of Labour Law in Europe: A Comparative Study of Nine Countries up to 1945 (London: Mansell, 1986).Google Scholar

65 See Forbath, 102 Harv. L. Rev. at 1448–76. By the early 20th century, both England and France had instituted broadly tolerant legal regimes, while the law of strikes and boycotts in the United States remained virtually unaltered.Google Scholar

66 Id. at 1448–80, 1249–53.Google Scholar

67 Id. at 1185–95, 1201–2.Google Scholar

68 Id. at 1202–14.Google Scholar

69 Id. at 1205 (quoting Gompers). From the 1890s onward until the New Deal, a remarkable number of trade unionists immersed themselves in equitable, common law and constitutional doctrine and created an eloquent labor version of liberal legal rights rhetoric and constitutional laissez-faire. They turned out thousands of editorials, speeches, and pamphlets assailing “government by injunction,” and forging, in the process, an alternative reading of “liberty of contract” and the First and Thirteenth Amendments. See id. at 1208–14.Google Scholar

70 See Frankfurter, Felix & Greene, Nathan, The Labor Injunction 136–98 (New York: Macmillan, 1930); see also Forbath, 102 Haw. L Rev. at 1220–22.Google Scholar

71 See id.Google Scholar

72 See the superb account in Bruce Ackerman, “Constitutional Politics, Constitutional Law,” 99 Yale U. 453 (1990).CrossRefGoogle Scholar

73 This is a point of disagreement between Professor Hattam's work and my own. See Hattam, “Unions and Politics” (cited in note 25). To my thinking, she mischaracterizes the political outlook and behavior of the early-20th century AFL. AS a result, she misses some key aspects of the role of law in shaping that organization. Hattam's work includes fine case studies of two pre-AFL organizations and their legislatively successful but judicially nullified efforts to secure court-curbing legislation narrowing the grounds for conspiracy prosecutions of strikers and boycotters. As a consequence of such experiences, Hattam contends, when the AFL arrived on the scene, it abandoned politics, eschewing the electoral and legislative involvements of its predecessors in favor of “pure and simple trade unionism.” Id. at 125–68.Google Scholar

Clearly the research projects that Hattam and I pursued have turned out to have important themes in common; that is only one reason I admire Hattam's work. Her account of labor and the law not only starts with an earlier period than mine; it also carries the story further forward. Not surprisingly, she paints with a bolder brush. Hers is largely an institutional narrative; mine is a more fine-grained approach looking at trade unionists' ground-level experiences with judges' words and deeds. The style and substance of our arguments are also somewhat different. She describes some of organized labor's frustrating early experiences with reform by legislation and invites the reader to infer that labor's natural reaction was to abandon that reform route. But a social and political actor like labor may react in different ways to frustrations. It may abandon its reform efforts, or it may redouble them. Understanding the road taken seems to me to require a couple more steps: uncovering the available evidence of actual debates and deliberations about the choice; and reconstructing the specific strategic considerations that were likely to have shaped trade unionists' thinking.Google Scholar

Thus, for example, Hattam is somewhat off the mark in suggesting at several points that the AFL simply abandoned the pursuit of reform by legislation. In fact, the AFL and its state federations electioneered and lobbied for immigration restriction, protective legislation for women and children, and, above all, court-curbing measures (Hattam's focus)—all with greater vigor and resources than the pre-AFL organizations she describes. These were the visible hand of AFL voluntarism. In particular, court-curbing legislation, repealing the harsh legal constraints on unions' concerted marketplace activities, was a reform goal that the AFL scarcely could afford to abandon. The strategic (and ideological) costs and benefits were otherwise for other, broader reform ambitions, and these receded, but the long campaign against the courts continued, and ironically, labor's outlook fell more under the sway of law. See Forbath, 102 Harv. L Rev. (cited in note 2).Google Scholar

74 Professor Hattam's recent article, again, offers a somewhat different, and quite interesting, account of the late 19th century's main labor organizations and the role of law in their formation. Hattam, 4 Stud. Am. PoL Dev. 82 (cited in note 25). The AFL, in this tale, stood for “trade unionism,” always hewing to Gomper's outlook and striving to carve out a place in the emerging industrial order for craft unions and collective bargaining. The Knights of Labor stood for “producerism” and largely rejected unionism and collective action. Spurning strikes and boycotts, they strove instead to restore the propertied independence of small producers through anti-monopoly legislation and public control of currency and credit. Of these two main currents of Gilded Age labor politics, it was only the “trade unionist” stream that ran up against the courts. Therefore, Hattam concludes, “the court's power to shape the American working class” was “contingent” (at 83). It hinged on the demise of the Knights and their vision, a demise attributable to factors other than the legal order.Google Scholar

Hattam suggests a contrast between her article and my work that is misleading (at 129 & n.123). My work has not “focus[ed] exclusively on the AFL,” nor “reified the nature of judicial power” by looking solely to the “structure and capacity of the American legal system” while neglecting “the interaction” of “labor organizations and social movements” with the courts (id.). Indeed, I had thought my work examines those interactions as carefully as any. See Forbath, 1985 Wis. L Rev. 767–817 (cited in note 51); id. 102 Harv;. L. Rev. 1109–1256 (cited in note 2). The actual differences between us are, I think, more subtle but also more substantive. They do not spring from methodological or conceptual sins on either side, but do involve significant differences of interpretation.Google Scholar

First, although Hattam seems to claim otherwise, I think it was quite possible for a Gilded Age worker to be a “producerist” and a “trade unionist.” Most Knights were both; their goal of a future “Co-operative Commonwealth” did not prevent them from being staunch trade unionists in the present. Thus, although Hattam suggests that the Knights were largely indifferent to workers' rights to strike and boycott, in fact, they made protection of these rights the chief aim of countless campaigns. Just as producerists could be trade unionists, so could many AFL unions champion a broad producerist politics. The AFL was never ideologically monolithic, as Hattam herself acknowledges, least of all in its first two decades, when the union philosophy associated with Gompers vied constantly with the more inclusive unionism and more ambitious vision of labor reform I have sketched.Google Scholar

I also question Hattam's insistence that the courts played no significant part in the Knights' demise. In scores of industries and locales, court-sponsored suppression drove old-stock skilled workers away from the class-based solidarities they had formed in the Knights with the unskilled and the new immigrants, and into the more exclusive organizations and restricted spheres of action that characterized the AFL craft unions (see Forbath, Law). To say that the courts played this role is in no sense to deny that the “power of courts to shape the American working class” was “contingent.” That power was contingent, not only as regards the Knights, but also in the arena that Hattam seems to exempt from contingency: the courts' sway over the AFL.Google Scholar

As we shall see, the contingency of the courts' power is illuminated by the English comparison: by the existence in England but not America of a long tradition of legislative regulation of industrial affairs; by the slightness of America's industrial working class compared to England's when each was weighed against the nation's whole voting population; by the fact that the Democrats and Republicans in the United States were, both structurally and culturally, far less constrained than England's two main parties to compete for industrial workers' votes through class-based appeals. Had factors such as these been otherwise, the political will necessary to rein in a uniquely powerful judiciary probably would have emerged much sooner.Google Scholar

75 See Kahn-Freund, Otto, Labor Relations and the Law. A Comparative Study (Boston: Little, Brown, 1964) (“Kahn-Freund, Labor Relations”).Google Scholar

76 Wedderburn, Kenneth W., The Worker and the Law 207–10 (London: MacGibbon &. Kee, 1965) (“Wedderburn, Worker”).Google Scholar

77 The best account of the repeal of the Combination Acts remains Beatrice &. Sidney Webb, The History of Trade Unionism, 1666–1920 ch. 7 (New York: Longman, Green, 1920) (“Webb, Trade Unionism”).Google Scholar

78 From the dawn of trade unionism in the 18th century until 1875 when unions were fully immunized from criminal prosecutions, criminal justice in England depended on a system of private prosecutions; hence, employers and not state attorneys brought conspiracy and other criminal prosecutions against unions. See MacDonald, Donald F., The State and the Trade Unions ch.2 (London: Macmillan, 1976).Google Scholar

79 See Wedderburn, Worker 207–10; Webb, Trade Unionism 248–49. The most richly detailed assessment of the development of 19th- and 20th-century English labor law and the vagaries of English courts' interpretations of Parliamentary reforms is to be found in a recent American law review article. See Michael J. Klarman, “The Judges versus the Unions: The Development of British Labor Law, 1867–1913,” 75 Va. L Rev. 1487 (1989). Klarman's essay appeared after this one was largely completed, so I could not use it as fully as I would have liked, but it confirms some key points. Klarman's account of English developments supports my view that English courts were markedly similar to the American judiciary in their use of strained constructions to vitiate pro-labor statutory reforms. Klarman also agrees that mistrust of the courts was the central reason that early 20th-century trade unionists in England, as in the United States, championed a laissez-faire regime, opposing any legal regulation, even benevolent regulation, of peaceful concerted activities or of union-employer relations.Google Scholar

Klarman underscores the tenacity of this laissez-faire: outlook among English trade unionists. Having ousted the courts, English labor thereafter preferred continued judicial nonintervention over legally protected rights to organize and to employer recognition. So too did the AFL, decades later in the aftermath of Congress's passage of the Norris-LaGuar-dia Act in 1932; hence the AFL'S initial opposition to, and swiftly renewed hostility toward, the National Labor Relations Act (Wagner Act) of 1934. See Forbath, 102 Harv. L Rev. at 1231–33 (cited in note 2). But it would be wrong to read Klarman more broadly, as have some friendly critics of this essay. Klarman does not appear to claim, and certainly does not show, that as a result of its experiences with the courts, the English labor movement remained permanently hostile to government involvement in such other traditional trade union functions as hours and wages regulation and unemployment and sickness insurance. In fact, as we shall see, English trade unionists in general remained hostile to such welfare state measures roughly as long as they perceived the courts to be ruling the roosts of state policy and state power.Google Scholar

80 Victoria Hattam's dissertation offers a sustained and subtle interpretation of the pre-1880 English labor movement and its similiarities with organized labor in America during that era. See Hattam,” Unions and Politics” of 169–94 (cited in note 25). I merely note that the leading unions of the early TUC were powerful craft organizations like those that dominated the AFL. Indeed, they supplied Gompers, an English immigrant who had grown up in London's trade union world, with a model of the “business unionism” that he pioneered in the United States. See Gompers, Samuel, 1 Seventy Years of Life and Labor: An Autobiography (New York: E.P. Dutton 6k Co., 1925). The English unions' key features from Gompers's perspective were the same as those that gained them the label “new model unions” in England: their greater measure of “businesslike” centralized control over matters of union finance and the calling of strikes, their high dues, and their building up sizable treasuries to underwrite both strikes and new insurance and benefits programs. On the TUC'S founding and the development of “new model” unionism, see Webb, Trade Unionism; Alan Fox, History and Heritage: The Social Origins of the British Industrial Relations System 229–30 (London: Allen & Unwin, 1983) (“Fox, History and Heritage”); Clegg Hugh, Allen Fox &. Thompson F. A., 1 A History of British Trade Unions (Oxford: Clarendon Press, 1974) (“Clegg et al, History”).Google Scholar

81 See Cole, G.D.H., Attempts at General Union; A Study in British Trade Union History, 1818–1834 (London: Macmillan, 1953).Google Scholar

82 See Webb, Trade Unionism 78–103; Clegg et al, History 41–42.Google Scholar

83 Wedderburn, Worker 212–13 (cited in note 76). Thus the act eliminated such vague offenses as “molestation” and “intimidation” as these had been construed to include peaceful boycotting and other forms of secondary pressure and such demands as the closed shop; the act also expressly legalized peaceful picketing. Id.Google Scholar

84 Kahn-Freund, Labor Relations (cited in note 75).Google Scholar

85 See Forbath, 102 Harv. L Rev. at 1220 (cited in note 2).Google Scholar

86 See id. at 1241–43. The best and most detailed account is Hattam, “Unions and Politics” at 125–68. See also Kuritz, Hyman, “Criminal Conspiracy Cases in Post-Bellum Pennsylvania,” 18 Pa. Hist. 292. Criminal conspiracy prosecutions of unionists finally ceased in the United States in the 1900s, but not due to labor's legislative efforts. Instead, they were cast aside when both employers and state officials concluded that the injunction was a more efficacious weapon. See Forbath, 102 Harv. L Rev. at 1152–55.Google Scholar

87 See Kahn-Freund, Labour Law 55. On the few occasions after 1875 in which they were called on to address the question, appellate courts consistently ordered the dismissal of conspiracy indictments and the reversal of conspiracy convictions against trade unionists. See Conner v. Kent, 2 Q.B. 549 (1891) (reversing magistrate's conviction of three local trade union leaders for threatening strike to enforce closed shop, demanding firing of three nonunion workers); Curran v. Treleaven, 2 Q.B. 560 (1891) (same); see also Gibbon v. Lawson, 2 Q.B. 557, 558 (1891) (upholding dismissal of indictment by magistrate). Gibbon, Connor, and Curran appear to be the last cases in which the question of the criminality of peaceful strikes and boycotts had to be addressed at the appellate level; they were preceded by a decade in which no such cases were reported).Google Scholar

88 Fox, History and Heritage 229–30; see also Henry Phelps Brown, The Origins of Trade Union Power 58–59 (Oxford: Clarendon Press, 1983).Google Scholar

89 Quoted in Clegg et al., History 50 (cited in note 80).Google Scholar

90 See Pelling, Henry, “Trade Unions, Workers, and the Law,” in Popular Politics and Society in Late Victorian Britain 153 (London: Macmillan, 1979).CrossRefGoogle Scholar

91 Id.Google Scholar

92 Henry Broadhurst [stonemanson, Liberal M.P., and Secretary of the TUC'S governing body, the Parliamentary Committee, from 1875 to 1890], “Speech at the Trades Unions Conference of 1887” in Hobbsbawn, E. J., ed., Labour's Turning Point 96–97 (London, Allen & Unwin, 1948). See also “Speech of William Mosses at the TUC of 1889,” in id. at 103–4.Google Scholar

93 See Montgomery, David, Beyond Equality: Labor and the Radical Republicans, 1862–1872 (New York: Vintage Books, 1974).Google Scholar

94 On the creation and character of the new unions see Webb, Trade Unionism 358–422 (cited in note 77); Clegg et al., History 55–96 (cited in note 80).Google Scholar

95 Pelling, Henry, The Origins of the Labour Party 80 (Oxford: Clarendon Press, 1964); Henry Pelling, “Knights of Labor in Britain, 1880–1901,” 9 Econ. Hist. Rev. (1956) (quoting Burns and Mann).CrossRefGoogle Scholar

96 See Pelling, Origins of the Labour Party 196–97; John Saville, “Trade Unions and Free Labour: The Background to the Taff Vale Decision” in Asa Briggs ck John Saville, eds., Essays in Labour History 345 (London: Macmillan, 1960); Hugh Clegg, The System of Industrial Relations in Great Britain 396 (Totowa, N.J.: Rowan & Littlefield, 1972).Google Scholar

97 On the “employers' counter-offensive” see Clegg et al., History 126–79; Saville, “Trade Unions and Free Labour” 317–50; Fox History and Heritage 174–221 (cited in note 80).Google Scholar

98 These associations' tactics were also viewed as American inventions and dubbed “the American method”: the large-scale importation of “what the [employers'] Federations nicely called ‘free labour’, ” and the use of heavily armed private police to guard the imported strikebreakers. See Saville, “Trade Unions and Free Labour” at 323.Google Scholar

99 [1893] 1 Q.B. 715.Google Scholar

100 See Saville, “Trade Unions and Free Labour” at 344 n.3 (quoting Sir Frederick Pollock's supplementary note on Temperton appended to his 1892 Memorandum on the Law of Trade Combinations: Royal Commission on Labour, Fifth and Final Report 1894:157–63).Google Scholar

101 See id. at 344–45.Google Scholar

102 Lyons, J. & Wilkins, Sons v., [1896] 1 CL 811.Google Scholar

103 Like the American judges, the English jurists believed that there was no such thing as “peaceful picketing.” Id. at 825–26.Google Scholar

104 [1901] A.C. 426.Google Scholar

105 Bealey, Frank & Pelling, Henry, Labour and Politics 1900–1906: A History of the Labour Representation Committee 74 (London: Macmillan &. Co., 1958) (“Bealey & Pelling, Labour”).Google Scholar

106 [1901] A. C. 426. In the particular event, the Amalgamated Society paid the Taff Vale Railroad Company £23,000 in settlement of the suit. See Bealey 6k Pelling, Labour 71.Google Scholar

107 See id. at 74.Google Scholar

108 See Webb, Trade Unionism 604 (cited in note 77); Bealey &. Pelling, Labour 95.Google Scholar

109 Hinton, James, “The Rise of a Mass Labour Movement: Growth and Limits” in Chris Rigley, ed., A History of British Industrial Relations 1875–1914 at 32 (Brighton, Eng.: Harvester Press, 1982).Google Scholar

110 “Summary of Parliamentary Debates on Trade Unions' Disputes Bill, ”in Labour Leader, 6 April 1906, at 670 (quoting William Hudson, Labour MP, Newcastle-on-Tyne).Google Scholar

111 Tuc-sponsored motion in Parliament, 14 May 1902, quoted in Bealey Si Pelling, Labour 93.Google Scholar

112 Quoted in Phelps-Brown, Origins of Trade Union Power 37–38 (cited in note 88).Google Scholar

113 Gilbert, National Insurance chs. 5–7 (cited in note 36); Heclo, Modern Social Politics 84–90 (cited in note 36); Pat, Thane, “The Working Class and State Welfare in Britain,” 27 Hist. J. 877, 899 (1984).Google Scholar

114 Thane, 27 Hist. J. at 899.Google Scholar

115 Fox, History and Heritage 252 (cited in note 80).Google Scholar

116 6 Edward VII. c. 47.Google Scholar

117 Id. sec. 1.Google Scholar

118 Id sec. 2.Google Scholar

119 Id. sec. 4; Kahn-Freund, Labor Relations 68 (cited in note 75).Google Scholar

120 The freedom would not be interrupted for 65 years. Industrial relations in England would be governed by the “collective laissez-faire” instituted by the '06 Act until 1971. In that year a Conservative government had a second try at “Americanizing” English collective bargaining and strike law. However, it ended in disarray and was soon repealed. See Michael C. Moran, The Politics of Industrial Relations: Origins, Life and Death of the 1971 Industrial Relations Act (London: Macmillan, 1977). Americanization arrived again in 1980 with the first of the Thatcher government's major pieces of trade union legislation. See infra note 128.Google Scholar

121 Although they bowed to the act's exiling them from the world of industrial relations, the courts did not go gently. They turned their ire on the new Labour party, whose potential strength the act had revealed. In 1908 the Court of Appeal ruled that unions could not impose “levies” on their memberships to pay the salaries of labor representatives in Parliament—M.P.'s received no salary from the government. With scant support in either statutory law or precedent, the Court held, and the House of Lords affirmed, that the unions' political levies were ultra vires. Osborne v. Amalgamated Soc'y of Ry. Servants, [1909] 1 Ch. 163 (C.A. 1908); 1910 AC. 87 (1909). In 1913 Parliament again came to the unions' rescue, passing the 1913 Trade Union Act, which legalized such levies, with some protection for dissenters. This Act's principles still govern trade union spending. 1913, 2 &. 3 Geo. 5, ch. 30, sec. 3. These judicial and Parliamentary developments are well chronicled in Klarman, 75 Va. L. Rev. at 1536–47 (cited in note 79).Google Scholar

122 Wade, Conway v., [1908] AC. 844, 856 (Farwell, L.J.).Google Scholar

123 See, e.g., Williams, Dallimore v. and Jenson, 30 Times L Repts. 432, 433 (1 May 1914) (Ct. of App.). In Dallimore, Lord Sumner reversed as barred by the Act a jury verdict against officials of a musicians' union. He reproached “the learned [trial] Judge” for his charge to the jury. The charge had “direct[ed] the jury quite correctly as to the effect of the Trade Disputes Act, and [told the jury] that, whatever their own views might be, they must follow and obey the Act.” However, the trial judge had not stopped there; instead, he “added some remarks pointedly expressed,” assailing the Act and told the jury “that a person who availed himself of the defence afforded by the Act was setting up a dishonest defense.”Id. at 433. Lord Sumner condemned these remarks as “inopportune, detrimental to the defendants' case, and, perhaps worst of all, irrelevant.”Id.Google Scholar

124 The Lord Chancellor, for example, declared during the House of Lords' legislative debates on the Bill that it “legalized tyranny” and was “contrary to the … Constitution.” See also Conway v. Wade, [1908] A.C. 844, 857 (opinion of Kennedy, L.J.) (“It was possible for the Courts in former years to defend individual liberty … because the defense rested on the law which they administered; it is not possible for the Courts to do so when the Legislature alters the laws as to destroy liberty, for they can only administer the law”). See also Luby v. Warwickshire Miners' Association, [1912] L. 203.Google Scholar

125 See Forbath, 102 Harv. L Rev. at 1220–22 (cited in note 2). Over the next quarter-century, the states and Congress enacted at least 40 more court-curbing statutes, most of them more modest than the Trade Disputes Act. At least 25 of these 40 were struck down on constitutional grounds, and most of those not voided were vitiated by narrow construction. See id. at 1222, 1253–56.Google Scholar

126 See Fox, History of Heritage 276–79; Clegg et al., History 364–422.Google Scholar

127 The Case for the Labour Party (London: 1909), for example, was a handbook that supplied stump speakers with arguments to win support for the new party. The handbook underscores the fledgling party's legislative achievements and promises; above all, it emphasizes the party's role in reforming ”The Legal Position of Trade Unions.”“The [Liberal] government,” it notes, “introduced a measure” aimed at halting the erosion of labor's industrial rights; but “its terms were so unsatisfactory that the Party persisted in pressing forward its own Bill, and succeeded in gaining legislation acceptable to the Trade Unions. The political independence of the Party was thus justified in its very first attempt at industrial legislation.”Id. at 106 (emphasis in original). After rehearsing the party's achievements, the stump speakers' handbook goes on to list “the Labour Party's work” that was yet to be done–”Old Age Pensions; Eight Hour Day for Miners; Unemployment and Sickness Insurance.”Id. at 114. See also id. at 107, quoting Liberal M.P. T. P. O'Connor: “The Labour Party has profoundly influenced the present [1909] House of Commons, more than it realizes itself. It is in the sense that there is this power in the background–discontented, independent, hostile–that drove the Government to support the Trades Disputes Bill and compels it to keep legislation at the high speed to which it has risen.”.Google Scholar

For similar arguments in favor of “Independent Labour Politics” in trade union newspapers, see, e.g., “Well-Done!”Labour Leader (6 April 1906), at 668 (“Practically the whole of the Liberal members found themselves, much perhaps to the dismay of many of them, pledged by their election promises to support the Labour Party's [Trade Disputes] Bill Mr. Hudson [Labour M.P.] … presented the case for Trade Unionism … with the weight of the whole of the militant Labour vote of the country behind him”); “The Cotton Operative and Politics,”id. (22 Jan. 1909) at 57 (the cotton operative, traditionally “narrow” and “backward” in his politics, inspired by the party's practical parliamentary triumphs over the courts to “begin to look at Parliament as the instrument of his social and industrial progress”).Google Scholar

128 Ironically, a laissez-faire state policy toward peaceful collective action turned out to be exactly what American labor never got. (Or, rather, such a national policy existed only during the brief interregnum between the passage of Norris-LaGuardia in 1932 and the Wagner Act of 1934, which, of course, created a national administrative agency with substantial regulatory powers over collective bargaining and labor conflict.) See Christopher L. Tomlins, The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880–1960 (Cambridge: Cambridge University Press, 1985).Google Scholar

English labor, by contrast, got such a laissez-faire state policy toward strikes and concerted activity in 1906; and neither the English labor movement nor the Labour Party ever relinquished its commitment to that policy. It endured, with little interruption or exception, until 1979, when Margaret Thatcher came to the premiership committed to fundamental change in the nation's labor law. The changes wrought by Thatcher's government were Americanization once again and with a vengeance: detailed state regulation of union affairs and sharp limits on strikes and collective action. As Michael Klarman observes, “the Thatcher Government's recent trade union legislation constitutes an unmitigated rejection of collective laissez-faire…. [And] it seems increasingly likely that the … [old] British system of industrial relations … now has” vanished for good. See Klarman, 75 Va. L. Rev. at 1596–1601 (cited in note 79).Google Scholar