1 I situate Hillman's collaboration with Frankfurter around the Rochester strike in this way. Although Hillman and Frankfurter lost their “Brandeisian” effort to defeat the Rochester antistrike decree (Forbath at 119–21), Hillman and other moderate socialist union leaders in the garment trades persevered and scored a handful of important successes both in defeating antistrike injunctions and, more importantly, in gaining from New York state judges (notably Judge Robert Wagner, later U.S. senator and principal sponsor of the Wagner Act) counter-decrees that protected the right to strike and organize against employer interference (Forbath at 122–25). Probably most of the trade unionists outside New York who knew about these few injunctions saw the experience as a sideshow, a happy distraction from the main drama of judicial repression. But this sideshow also turned out to be a common law rehearsal for the new legislative order, for New Deal labor law (id.).Google Scholar

2 Here Fisk quotes John Orth's splendid book on English labor law history, Combination and Conspiracy (New York: Oxford University Press, 1991), on which she also relies to point out that Hattam and 1 err in assuming that the English courts “respect[ed]” Parliament's mid-19th-century conspiracy reform legislation (p. 177). I make no such assumption; the shift from criminal to civil liability, which Fisk finds described in Orth's book, is also described by me. Like Fisk, I emphasize the strong parallel with American experience. See Forbath, “Courts, Constitutions, and Labor Politics in England and America,” 16 Law & Soc. Inquiry 1, 22–29 (1991). It remains the case that from the mid-1870s until the mid-1890s judicial involvement in English labor strife was slight and not a significant issue in the eyes of labor leaders. It became a pressing issue in the mid-1890s, and within less than a decade Parliament passed a court-curbing statute that the courts grudgingly obeyed. In the United States, Congress and the states passed almost 50 court-curbing statutes before the judiciary acquiesced, over three decades after England and then only in the wake of a constitutional revolution and only for a brief season, at that. I do not think it an exaggeration to say that the American experience was sharply different.Google Scholar

3 See Forbath, 16 Law & Soc. Inquiry at 4.Google Scholar

4 See id. at 32.Google Scholar

5 See id. at 32–33.Google Scholar

6 The 1880s Knights of Labor and the labor populists within the 1890s AFL hoped to supplant “corporate tyranny” with cooperative ownership and joint labor-management control of industry both through economic organizing and by using the political process to wrest control of wealth accumulation and the broader political economy from the emerging corporate elite and to institute a more decentralized and democratic macroeconomic order to un-dergird these more democratic workplaces. See Leon Fink, Workingmen's Democracy (Urbana: University of Illinois Press, 1983); Forbath, “Ambiguities of Free Labor,” 1985 Wis. L. Rev. 756; id., “The Curse of Bigness Revisited: The Antimonopoly Alternative to Corporate Capitalism” (work in progress). Stephen Amberg has argued that the CIO's various 1940s proposals for “industry councils”—vastly enhancing the role of labor in both the work process and broader industrial planning and decision making—“embodied the continuity of the older producerist tradition placed in a new mass production setting.” See Stephen Amberg, “Democratic Producerism: Enlisting American Politics for Workplace Flexibility,” 20 Economy & Soc'y 57, 65 (1991). Of course, FDR never embraced such bold programs, but this rights rhetoric lent FDR's famous “second Bill of Rights” its distinctive inflections: combining rights to social provision with rights to meaningful work, participation, and “fair competition.” For a discussion of FDR's “second Bill of Rights” in this context, see William Forbath, “Why Is This Rights Talk Different from Other Rights Talk? Demoting the Court and Re-imagining the Constitution,” 46 Stan. L. Rev. — (forthcoming, 1994).Google Scholar

7 The classics in this burgeoning genre include Charles Sabel & Jonathan Zeitlin, “Historical Alternatives to Mass Production: Politics, Markets, and Technology in 19th Century Industrialization,” 108 Past & Present 133 (1985); Nelson Lichtenstein, “From Corporatism to Collective Bargaining: Organized Labor and the Eclipse of Social Democracy in the Postwar Era,” in S. Fraser, & G. Gentle, eds., The Rise and Fall of the New Deal Order, 1930–1980 (Princeton, N.J.: Princeton University Press, 1989).Google Scholar

8 See, e.g., Michael Piorre & Charles Sabel, The Second Industrial Divide: Possibilities for Prosperity (New York: Basic Books, 1984) (“Piorre & Sabel, Second Industrial Divide”); Charles Sabel & Jonathan Zeitlin, Worlds of Possibility: Flexibility and Mass Production in Western Industrialization (forthcoming); C. Sabel, “Flexible Specialization and the Re-emergence of Regional Economies,” in P. Hirst & J. Zeitlin, eds., Reversing Industrial Decline? (New York: Oxford University Press, 1989).Google Scholar

9 See Piorre & Sabel, Second Industrial Divide; Edward Lorenz, “Trust, Community, and Co-operation”; Guy Standing, “Alternative Routes to Labor Flexibility,” and Paul Hirst & Jonathan Zeitlin, “Flexible Specialization versus Post-Fordism,” in Michael Storper & Allen Scott, eds., Pathways to Industrialization and Regional Development (New York: Routledge, 1992) (“Storper & Scott, Pathways”).Google Scholar

10 See Allen Scott & Michael Storper, “Industrialization and Regional Development,” in Storper & Scott, Pathways.Google Scholar

11 See Juliet Schor, The Overworked American: The Unexpected Decline of Leisure (1991) (“Schor, Overworked American”).Google Scholar

12 History also yields support for more market-based arguments. When firms responded to the late 19th-century movement for shorter hours, contemporary estimates showed that for three-fourths of all companies, reducing daily hours not only raised productivity per hour but also each worker's daily production. Likewise, during the 1910s, when many of the nation's large corporations shifted to a eight-hour day, workers produced more per hour, because the ten-hour day was simply too tiring. Similar results abound for more recent decades; in the 1970s, the last period in which any significant number of American corporations showed interest in shorter hours, studies consistently showed that shrinking the work week by up to five hours without shrinking pay led to less absenteeism, less turnover, and lower costs. See Schorr. Overworked American.Google Scholar