1. New York Times, 6/6/1882.

2. Hattam, Victoria, Labor Visions and State Power: The Origins of Business Unionism in the United States (Princeton: Princeton University Press, 1993).Google Scholar See also Forbath, William, Law and the Shaping of the American Labor Movement (Cambridge: Harvard University Press, 1991).Google Scholar

3. One type of case where legislators have allowed judges to make difficult political decisions is identified by Graber, Mark, “The Non-majoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7 (1993): 33–73.CrossRefGoogle Scholar Graber argues that several notorious “countermajoritarian” Supreme Court decisions are actually cases of legislative deference prompted by the emergence of issues that threatened to disrupt existing party alignments. It may be possible to fit the emergence of labor issues into his model. It could be argued that since neither patronage-based party was well equipped to take advantage of the disruption caused by the emerging conflicts between capital and labor, it was useful for both parties to simply defer to the courts and preserve existing political alignments. See below, note 36.

4. See Forbath, , Law and the Shaping of the American Labor Movement, Appendix A (pp. 177–99)Google Scholar, for a list of legislative reforms and judicial responses in the United States during the nineteenth century. See also Seager, Henry R., “The Attitudes of American Courts Towards Restrictive Labor Laws,” Political Science Quarterly, 19 (1904): 589–611Google Scholar, for an earlier attempt to catalog judicial obstruction of prolabor reforms.

5. It is at this stage of her argument that Hattam's strategy most strikingly resembles the argument of legal historian Forbath in his recent work on the development of the labor movement. In Law and the Shaping of the American Labor Movement, Forbath covers more states and a longer time span. Like Hattam, he challenges “American exceptionalism” and argues that the judiciary's success in overturning legislation contributed to the “shaping” of the American labor movement. Like Hattam, Forbath compares the United States with Britain as a way of establishing the unique role of the U.S. judiciary. See Forbath, , “Law and the Shaping of Labor Politics in the United States and England,” in Tomlins, Christopher L. and King, Andrew J., ed., Labor Law in America (Baltimore: Johns Hopkins, 1992).Google Scholar Despite these similarities, Hattam and Forbath have important differences in their accounts of the different labor visions within the U.S. labor movements—e.g., the Knights of Labor vs. the early AFL. (See Forbath, , “Law and the Shaping of Labor Politics in the United States and England” pp. 225–6Google Scholar, n. 58 and 59 for his attempt at a recap of the simmering dispute.) To some extent, the points I am discussing in this paper are their areas of agreement. My decision to focus primarily on Hattam results from Hattam's narrower geographical and temporal focus. Narrower focus presents a more sharply defined target.

6. Labor Visions and State Power, p. 141. See also Groat, George Gorham, Trade Unions and the Law in New York, Ph.D. dissertation, (Columbia University, 1905)Google Scholar chap. 2, for a similar version of this story. [See Hattam, , Labor Visions and State Power, 140–1Google Scholar, concerning the importance of conspiracy law in regulating industrial conflict in the period between the war and the emergence of the labor injunction. Hattam's Chapter 2 includes a discussion of the different ways the common law conspiracy doctrine was applied before and after the Civil War. My focus here is on the conspiracy laws codified in 1824 and later (1881) included in the penal code.]

7. See also Wilentz, Sean, Chants Democratic: New York City & the Rise of the American Working Class, 1788–1850 (New York: Oxford University Press, 1984)Google Scholar, on the transformation from artisan class to working class in New York City during the antebellum period.

8. See Hattam, , Labor Visions and State Power, p. 137 and passim.Google Scholar

9. Hattam writes: “The Wilzig and Kostka cases were by no means exceptional; New York courts convicted striking workers for acting collectively in almost all of the postbellum labor conspiracy trials.” Labor Visions and State Power, p. 149. A footnote then directs the reader to an appendix, where thirteen New York conspiracy cases are cited. However, many of those cases took place before the first statutory amendments to the conspiracy laws were passed in 1870. Besides Wilzig and Kostka, Hattam cites only three other post-1870 convictions, and one of those three was in 1928, long after the “voluntarist turn.”

10. Both Hattam, , Labor Visions and State Power, p. 160Google Scholar, and Forbath, , Law and the Shaping of the American Labor Movement, p. 41Google Scholar, quote passages from Samuel Gompers' autobiography where he claims that judicial interference with reform legislation led to his espousal of trade unionism. However, Gompers' attempt to assign responsibility for political failure to the judiciary can also be seen as self-serving.

11. Even this is doubtful however. The legislature passed the “yellow-dog” ban, but never provided the executive with the resources needed to enforce such a provision. In 1892 the state's commissioner of labor reported “the provision of 1887 has remained a dead letter.… All attempts to secure the punishment of employers thus most obviously guilty of a misdemeanor have proved fruitless.” Quoted in Groat, , Trade Unions and the Law in New York, p. 125Google Scholar, from the commissioner's annual report.

12. The law was passed as an amendment to the conspiracy statutes, and makes employ ers using a yellow-dog contract guilty of conspiracy. In the only relevant case cited by Forbath in Law and the Shaping of the American Labor Movement, p. 182Google Scholar, the statutory reform was applied, not narrowed, by the courts (Reynolds v. Everett, 22 N.Y.S. 826 (1892).

13. Hattam cites several conspiracy cases in court around 1869, with citations to the Workingmen's Assembly Proceedings, not to court reports. She codes them as “No record of ruling.” Apparently, the cases were discussed during Assembly proceedings and the 1870 legislation was the eventual result of the Assembly's concerns.

14. In fact, the 1870 statute appears to have been a victory that survived judicial interference, perhaps better than expected. Hattam cites six conspiracy cases pending between 1867 and 1869, when the Workingmen's Assembly began working in earnest to overthrow the statutes. But she only cites four conspiracy convictions during the entire period between the adoption of the amendment in 1870 and 1928. The cites are Labor Visions and State Power, appendix A.

15. See Friedman, Lawrence M., A History of American Law, 2nd ed. (New York: Simon and Schuster, 1985), 573–4Google Scholar, for a discussion of the New York Penal Code in the context of the movement to narrow judicial discretion by codifying common-law crimes. Friedman suggests that the movement was neither entirely successful nor entirely sincere.

16. The exempting provision appended in 1881 was somewhat nonsensical: If the exemption for peaceable workers isn't an exemption from violations of the other parts of the conspiracy code, then it is not at all clear what it is an exemption from.

17. New York Times 6/2/82, a few days before the revision was passed, mentions that various labor groups had been trying to have the offending language removed.

18. Of course, the Central Labor Union is not the same group as the Workingmen's Assembly. Foner, Philip, History of The Labor Movement in the United States (New York: International Publishers, vol. 1 1947, vol. 2 1955), 33Google Scholar, identifies the Central Labor Union as a “socialist” group. Even if they were more radical than the Workingmen's Assembly, it should become clear in what follows that the Workingmen's Assembly could not have been much more pleased than the Central Labor Union with the entire 1882 statute.

19. Quotes from the resolution are from the Times, 6/6/1882.

20. Quoted in the Tribune, 6/6/82.

21. Friedman's, History of American Law, pp. 573–4Google Scholar, cites this statutes as an example of the schizophrenia in the legislative movement to control judges' ability to use common-law crimes.

22. See Hurwitz, Howard Lawrence, Theodore Roosevelt and Labor in New York State 1880–1900, Ph.D. dissertation (Columbia University, 1943), 105–6Google Scholar, for an account of New York State Assemblyman Theodore Roosevelt's assurance to his constituents that the new law wouldn't be applied against laborers. However sincere such assurances may have been, the legislature did not back them up by making them part of the statutory language.

23. Both quotes and the account that follows are from the Tribune, 6/3/82, the story in the Times on the same day was quite similar.

24. Nor, most likely, could it be adequately explained in terms of electoral incentives (cf. studies of the twentieth-century Congress, e.g., Mayhew, David, Congress: The Electoral Connection (New Haven: Yale University Press, 1974)Google Scholar given the high level of corruption and the largely unaccountable power of the parties.

25. Editorial writers at the Tribune blamed the chaos of the 1882 legislative session on the lack of a clear majority party in either chamber. The newspaper implies that under normal circumstances, the dominant party had been better able to maintain decorum. But even if 1882 was especially chaotic, many of the conditions prevailing then were present, if to a lesser degree, throughout the period under consideration.

26. This is Stephen Skowronek's term for the state during this period. See Building a New American State (New York: Cambridge University Press, 1982).Google Scholar

27. John Swinton's Paper, 1/6/84.

28. For example, beginning in the early eighties, governors of New York began appointing labor representatives to patronage positions. See Hurwitz, , Theodore Roosevelt and Labor in New York State, p. 30.Google Scholar

29. See Groat, , Trade Unions and the Law in New York, p. 18.Google Scholar Interestingly, the Assembly was 20 years old before it established these professional, full-time lobbyists. Workers in other states quickly followed the New York Workingmen's Assembly's example, often with more success. For example, the New Jersey Labor Congress set up a legislative committee in October 1883, and had won a major legislative victory banning prison labor less than six months later. John Swinton's Paper, 4/6/84.

30. John Swinton's Paper, 11/11/83.

31. John Swinton's Paper, 10/28/83.

32. John Swinton's Paper, 5/29/87.

33. John Swinton's Paper, 5/22/87.

34. The arguments concerning the logic of collective action in political interest groups made by rational-choice theorists like Olsen, Mancur, The Logic of Collective Action (Cambridge: Harvard University Press, 1965)Google Scholar, and Chong, Dennis, Collective Action and the Civil Rights Movement (Chicago: University of Chicago Press, 1991)Google Scholar, may have some relevance here. Olson argues that recognized common interests are not sufficient to insure that effective political pressure groups will form. Chong argues that it is crucial for rival interest groups to be identified with early political victories in order for them to continue to attract members. The need for such “victories” may have contributed to the lack of cooperation among labor groups.

35. Groat, , Trade Unions and the Law in New York, p. 36.Google Scholar

36. Throughout the period, some elites were very afraid of the establishment of an independent labor party. If one looks at either the Times or Tribune following almost any election during this period, one can find warnings about some small labor party somewhere in the country whose success threatens the existing party system. Typical is a Times editorial which claims, with a straight face, that the problem with labor parties is that they “propose to distract political parties from the issues that divide them by brining into prominence the vexed questions between capitalist and laborer” — Times (8/26/69). See also the Tribune ca. 11/18/78 for paranoid editorials regarding the success of the Greenbacks.

37. Hurwitz, , Theodore Roosevelt and Labor in New York, p. 119.Google Scholar

38. Swinton's Paper, 6/5/87.

39. Hurwitz, , Theodore Roosevelt and Labor in New York, p. 34.Google Scholar

40. It's worth noting that these serious divisions and rivalries were the result of differences within that part of the labor movement that shared what Hattam identifies as an emerging trade-unionist vision that placed central importance on rights to collective action. The inability of New York labor organizations to coordinate their efforts to influence legislation securing workers' rights to organize collectively suggests that there were other serious divisions within the movement.

41. Horwitz, Morton, The Transformation of American Law 1780–1860 (Cambridge: Harvard University Press, 1977)Google Scholar, chronicles some of the ways in which the law was transformed in the antebellum period. Changes in private law aided economic development, but, according to Horwitz, at the expense of a broader public interest. What Horwitz does not try to explain is why the public interest didn't better assert itself and demand changes during the numerous opportunities for reform, e.g., during New York's Constitutional changes in 1846 and 1867.

42. Niles, Russell D., “The Popular Election of Judges in Historical Perspective” The Record of the Association of the Bar of the City of New York, 21, 11 1966, 523.Google Scholar See also Haynes, Evan, The Selection and Tenure of Judges (Newark: National Conference of Judicial Councils, 1944), chap. IV.Google Scholar

43. Hall, Kermit, “Progressive Reform and the Decline of Democratic Accountability: The Popular Election of State Supreme Court Justices, 1850–1920,” The American Bar Foundation Research Journal (1984).Google Scholar “Roll-off” indicates that the total number of votes cast for all the candidates for a judicial office tends to be lower than the total votes cast for candidates for other offices.

44. My account of the early bar associations is based on Matzko, John, “‘The Best Men of the Bar’: The Founding of the American Bar Association” in Gawalt, Gerard W., ed., The New High Priests: Lawyers in Post-Civil War America (Westport: Greenwood Press, 1984) pp. 75–96.Google Scholar One of the problems with research on the early bar associations, according to Matzko, is that they did not leave behind much evidence of what it was they were up to.

45. See Horwitz, , Transformation of American Law, chap. VGoogle Scholar, for an account of how the legal profession was adopted and changed by commercial interests in the period following the revolution.

46. Tribune, November 21, 1877.

47. Hall, Kermit, “The Judiciary on Trial: State Constitutional Reform and the Rise of an Elected Judiciary, 1846–1860,” The Historian, 45 (1983), 337–54CrossRefGoogle Scholar, argues that some elite groups of lawyers saw the writing on the all and developed strategies to use the elected judiciary to the advantage of the legal profession and its conservative patrons. However, it is wrong to conclude from Hall's evidence that the move for an elective judiciary was a initiated only be elites. The elites adopted the strategy, and indeed, the move to the elected judiciary was possible, only because there was a broad-based demand for judicial reform.

48. On the convention see Dougherty, J. Huntington, Legal and Judicial History of New York, vol. II, Chester, Alden, ed. (New York: National Americana Society, 1911), pp. 178–215Google ScholarAlexander, DeAlva Stanwood, A Political History of the State of New York, vol. III (New York: Henry Holt and Co., 1909) pp. 184–5Google Scholar; and Niles, “The Popular Election of Judges in Historical Perspective.”

49. Then as now, the appeals court in New York is supreme, not the supreme court.

50. Forbath seems to fall into this mistake. See Law and the Shaping of the American Labor Movement, p. 34.

51. The Tribune, consistently opposed to an elected judiciary, later blamed the success of the 1873 referendum on the scandals in the federal judiciary that were coming to light at the time of the vote. See Tribune (8/7/75). That may be a dubious hypothesis. The vote in favor of continuing the elective judiciary was 319, 979 to 115, 337.

52. As time went by and incidents of judicial interference multiplied, labor does not appear to have become more interested in judicial selection. In 1878, the Tribune attempted a comprehensive story on the positions of various state labor organizations on various issues, and no mention was made of judicial reform by representatives of the Nationalists, Greenbacks, or Workingmen's Assembly (Tribune 8/27/78). See also Tribune, 10/10/77, for a report on the annual Workingmen's convention. Legislators were denounced repeatedly, but no mention is made of judges in a very long list of suggested reforms. On the other hand, the New York Democrats, at their convention in 1877, passed a resolution aiming to reform the party's image by establishing impartial, nonpartisan judges (Tribune 9/22/77). This suggests the Democrats were concerned about public perceptions of the overly politicized judiciary.

53. John Swinton's Paper, 12/2/83.

54. John Swinton's Paper, 1/20/84, for a review of the scandal and its coverage in the mainstream press. Not surprisingly, Swinton echoes the Sun's suggestion regarding capital punishment for corrupt judges.

55. See, e.g., an editorial 2/4/79, criticizing the mandatory-retirement-at-age-seventy rule for judge. Another Tribune story mocks those who criticized two Connecticut judges for “soiling the ermine” by running for other political offices (3/9/75).

56. Brooks, James Walton, History of the Court of Common Pleas of the City of New York (by subscription, 1896), 97–98.Google Scholar

57. For example, Tribune election returns on 11/18/78 show that despite the huge gains for the Greenbacks in the localities throughout the state, and surprising support (but no victories) for Greenback judicial candidates, the Greenback candidate for the appeals court finished a more distant third to the Democrat and Republican candidates. A thorough exploration of how the rural vote weakened labor's influence in statewide judicial offices needs to be done. The rural upstate renters (who helped call the 1846 convention that made the judiciary elective) may have continued to have a disproportionate influence on judicial selection during this period.