1 See generally Gordon, Robert W., “Critical Legal Histories,” 36 Stan. L. Rev. 57 (1984).CrossRefGoogle Scholar

2 For other discussions of the “constitutive” power of law on consciousness, see, e.g., Gordon, 36 Stan. L. Rev. at 109–16; Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law 1–11 (Ithaca, N.Y.: Cornell University Press, 1990); Patricia J. Williams, The Alchemy of Race and Rights 8–12, 98–110 (Cambridge, Mass.: Harvard University Press, 1991).Google Scholar

3 See also Leon Fink's, complementary look at American trade union behavior and attitudes in “Labor, Liberty, and the Law: Trade Unionism and the Problem of the American Constitutional Order,” 74 J. Am Hist. 904 (1987).Google Scholar

4 See William, E. Forbath, , Hartog, Hendrik, & Minow, Martha, “Introduction: Legal Histories from Below,” 1985 Wis. L. Rev. 759, 759.Google Scholar

5 Forbath cites to John Commons, Selig Perlman, Seymour Lipset, Philip Taft, Gerald Grob, and Nathan Fine.Google Scholar

6 Forbath cites, among others, David Montgomery, P. K. Edwards, Jeremy Brecher, Herbert Gutman, and Leon Fink. See Forbath at 11–17.Google Scholar

7 See also David Montgomery, The Fall of the Home of Labor: The Workplace, the State, and American Labor Activism, 1865–1925 at 165–68 (Cambridge: Cambridge University Press, 1987) (describing the legislative program of the Knights of Labor).CrossRefGoogle Scholar

8 Like the courts, the AFL and its state counterparts distinguished, and supported, protective legislation for women and children, judging those classes of individuals incapable of protecting their own interests in the marketplace. Forbath suggests that the courts first made this analytical distinction, and the attitude of the AFL unions changed to reflect the judicial idea of gender dependency (at 17, 52–53). It seems much more likely that, in this instance, both the unions and the courts were reflecting generally shared attitudes about women workers. See Alice Kessler-Harris, Out to Work: A History of Wage-earning Women in the United States 142, 180–81, 186 (New York: Oxford University Press, 1982). The mere fact that at one time the unions favored broad hours and wages legislation and later promoted such statutes only for women and children does not prove a shift away from classwide solidarity.Google Scholar

9 Forbath suggests that the founders successfully structured the government to avoid domination by any—but particularly any propertyless, class-based—social or sectional faction. They elevated private rights of contract and property to constitutional status and divided power among separate state jurisdictions, thus making it harder to mount a legislative assault on power and privilege. The nature of political parties, with their cross-class ties of patronage, ethnicity, and neighborhood, compounded the difficulty of developing effective class-based labor politics. Finally, the elite status of those who were selected to be federal and state judges made them sympathetic to the “austere liberal social vision” that discouraged class-based activity, thus making them more likely to suppress the more radical organizing tactics of the unions (at 27–34). Forbath promises to expand upon these thoughts in a future work.Google Scholar

10 In a useful appendix, the book contains a comprehensive listing of court decisions respecting legislation implementing labor's major and secondary demands during the Gilded Age and a selection of cases striking down significant categories of labor laws during the 1910s and 1920s (at 177–92).Google Scholar

11 See In re Jacobs, 98 N.Y. 98 (1885) (striking down the reenacted version).Google Scholar

12 See, e.g., Morton Keller, Affairs of State: Public Life in Lute Nineteenth Century America 369 (Cambridge, Mass.: Harvard University Press, Belknap Press, 1977); John Semonche, Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920 at xi (Westport. Conn.: Greenwood Press, 1978).Google Scholar

13 See Urofsky, Melvin, “State Courts and Protective Legislation during the Progressive Era: A Reevaluation,” 72 J. Am. Hist. 63, (1985).CrossRefGoogle Scholar

14 Urofsky, Melvin, “Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era,” Yearbook of the Supreme Court Historical Society 53, 55 (1983).Google Scholar

15 The courts were not uniform in condemning all but the narrowest rationales for strikes. Forbath cites a few state decisions upholding consumer boycotts and approving strikes to enforce union work standards or to force discharge of nonunion workers (at 89 n.119). But it appears that the great majority of cases found most such collective action to be unlawful, and the impact of those cases was sufficient to affect labor strategy.Google Scholar

16 See Loewe V. Lawlor, 208 U.S. 274 (1908).Google Scholar

17 Avery, Diane, “Images of Violence in Labor Jurisprudence: The Regulation of Picketing and Boycotts, 1844–1921,” 37 Buff. L. Rev. 1, 2–5 (198889).Google Scholar

18 See Forbath at 10 & nn.1–2; 134–35 & nn.23–25.Google Scholar

19 See, e.g., David Montgomery, Workers Control in America: Studies in the History of Work, Technology, and Labor Struggles 91–94 (Cambridge: Cambridge University Press, 1979).Google Scholar

20 See Selig Perlman &. Philip Taft, 4 History of Labour in the United States, 1896–1932 at 412–60 (New York: Macmillan Co., 1935).Google Scholar

21 The only lawful form of secondary boycott is leafletting to persuade customers to boycott a business that continues to do business with a struck employer. See DeBartolo Corp v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568 (1988). Picketing a secondary business to induce consumers not to buy a struck product is considered primary, not secondary, activity and is therefore lawful. NLRB v. Fruit & Vegetable Packers, Local 760 (Tree Fruits), 377 U.S. 58 (1964). Even this form of boycotting is unlawful, however, if the struck product or employer forms a central part of the secondary employer's business. NLRB v. Retail Store Employees 1001 (Safeco), 447 U.S. 607 (1980).Google Scholar

22 See Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235 (1970). In contrast, sympathy strikes—which have been held to be unlawful under the NLRA—may not be enjoined, because such strikes generally are found not forbidden by no-strike clauses, and therefore they do not implicate the “private dispute settlement mechanisms agreed upon by the parties” to a labor contract. Buffalo Forge Co. v. Steelworkers, 428 U.S. 397 (1976).Google Scholar

23 Local 1976, United Bhd. of Carpenters v. NLRB (Sand Door), 357 US. 93 (1958). Sand Door involved picketing at a secondary; it is not clear following the decision in Tree Fruits (cited in note 21) whether leafletting for that purpose would be lawful.Google Scholar

24 See, e.g., NLRB v. Southern Cal. Edison Co., 646 F.2d 1352, 1363–64 (9th Cir. 1981); NLRB v. Browning-Ferris Industr., 700 F.2d 385 (7th Cir. 1983).Google Scholar

25 See generally Florian Bartosic & Roger C. Hartley, Labor Relations in the Private Sector$ 9.04 (Philadelphia: American Law Institute-American Bar Association Committee on Continuing Professional Education, 1986).Google Scholar

26 H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970).Google Scholar

27 Weiler, Paul, “Striking a New Balance: Freedom of Contract and the Prospects for Union Representation,” 98 Harv. L. Rev. 351, 357–63 (1983).CrossRefGoogle Scholar

28 International Ass'n of Machinists v. Street, 367 U.S. 740, 764, 768 (1961) (RLA); Communication Workers of America v. Beck, 487 U.S. 735 (1988) (NLRA).Google Scholar

29 Banning permanent replacement of striking workers has been a priority for labor for several years. Such legislation has passed the House of Representatives but not the Senate. On 30 March 1993, the Clinton administration announced its support for a permanent replacement ban, reversing the position taken by previous Republican administrations. See James Risen, “Clinton Seeks Ban on Striker Replacements,”L.A. Times, 31 March 1993, at A1. A Republican filibuster is nonetheless expected to block passage in the Senate.Google Scholar

30 See Employers Ass'n Inc. v. United Steelworkers of American, 803 F. Supp. 1558 (D. Minn. 1992); Opinion of the Justices, 571 A.2d 805 (Me. 1989). But see Midwest Motor Express v. Int'l Bhd. of Teamsters Local 120, 494 N.W.2d 895 (1993) (upholding state statute forbidding use of permanent replacement workers; lower court found statute not preempted because of the compelling local interest in maintaining peace during labor disputes); Both Employers Ass'n and Midwest Motor Express have been appealed and opinions are expected shortly. See generally LeRoy, Michael H., “The MacKay Radio Doctrine of Permanent Striker Replacements and the Minnesota Picket Line Act: Questions of Preemption,” 77 Minn. L. Rev. 843 (1993).Google Scholar

31 Elizabeth Fox-Genovese, Feminism without Illusions: A Critique of Individualism 17 (Chapel Hill: University of North Carolina Press, 1991).Google Scholar