Christopher Tomlins' The State and the Unions today: what the critical synthesis can teach us now that the unions have gone

Abstract

The thrust of this article is to review the evolution of the historiography of American labor law since the publication of Christopher Tomlins' widely celebrated The State and the Unions (1985). More than an isolated effort, Tomlins' critique of New Deal labor law was part of a broader analytical paradigm which should be called the ‘critical synthesis’. Dominating the field until the mid-1990s, the critical synthesis owed a part of its success to the crisis of labor history. Then, it gradually receded as labor unions continued their steep decline and historians of labor rekindled their faith in American liberalism and the Democratic Party. In analyzing the rise and fall of the critical synthesis, the article thus lays bare all the factors – scientific, social, and political – that contribute to the making and unmaking of analytical paradigms in the political history of labor. Finally, in doing so, the article places the debate on the Employee Free Choice Act in historical perspective.

Acknowledgements

I thank Gerald Friedman, Nelson Lichtenstein, Joseph A. McCartin, and Christopher Tomlins for their helpful comments on earlier versions of this article.

Notes

^1. Mary Van Kleeck to Robert Wagner, 12 March 1934, box 2, folder 9, Robert Wagner Papers, Georgetown University Special Collections.

^2. Tomlins, The State and the Unions.

^3. Tomlins, The State and the Unions. The reference to NLRB arbitrator Milton Boyd is at 314–5.

^4. Atleson, Values and Assumptions in American Labor Law. Kare, “Judicial Deradicalization of the Wagner Act”; Van Wezel Stone, “The Postwar Paradigm”. Earlier reviews of this work include Holt, “The New American Labor Law History” and Schatz, “Into the Twilight Zone”.

^6. Gregory, Labor and the Law, 224, as cited in Schatz, Into the Twilight Zone.

^5. Bernstein, The New Deal Collective Bargaining Policy, 131.

^7. Williams, The Tragedy of American Diplomacy; Kolko, The Triumph of Conservatism.

^8. Brody, Workers in Industrial America, 140. For the origins of New Left historiography, see Unger, Beyond Liberalism.

^9. Radosh, “The Corporate Ideology of American Labor,” 138. Davis, “The Barren Marriage of American Labour,” 43–84. For a recent assertion of this theory, see Gordon, New Deals.

^10. See Kolko, Main Currents in American History, 100–157. I am grateful to Christopher Tomlins for pointing out this aspect of Kolko's work to me.

^11. Robert Gordon summarizes this perspective on the relationship between progress and the law “Critical Legal Histories,” 60–7.

^12. The terms “Critical Synthesis” and “CLS” are not interchangeable. The CLS was the movement that swept through the law schools in the late 1970s. Labor law was only one of the areas of law that this movement touched on. By contrast, critical school is a term that we use to refer to those members of the CLS who turned to the history of labor law. The term critical synthesis is thus meant to emphasize their specific contribution to the historiography of Political and Labor history as a whole.

^13. Bauman, Ideology and Community.

^14. Neil Duxbury's chapter on CLS in Patterns of American Jurisprudence is a rare attempt to tell the social, political, and cultural history of that movement. For dissenting views, see Kalman, “Eating Spaghetti with a Spoon”. Other important works on the history of CLS include Burton, “Legal Reasoning and the Left” and Hutchinson and Monahan, “Law, Politics and CLS”.

^15. Hutchinson and Monahan, “Law Politics and CLS”.

^16. Gordon, as cited in Burton, “Reaffirming Legal Reasoning,” quote at 359.

^17. See Marcuse, One Dimensional Man.

^18. Kennedy, “CLS: A Comment,” 506.

^19. “It's really a rag-tag band of left over ‘60s people and people with nostalgia for the great events of 15 years ago,” D. Kennedy remarked in 1985. Quoted in Duxbury, Patterns of American Jurisprudence, 435. Whether the CLS movement was influenced by the legal liberalism of the Warren Court is, however, highly debatable. Tushnet dismisses this theory in “CLS: A Political History,” 1534–6.

^20. Klare, “Law Making as Praxis,” 123.

^21. Tushnet, “Critical Legal Studies,” 1517–8.

^22. Tomlins, The State and the Unions, xii.

^23. Poulantzas, State, Power and Socialism.

^24. Block, “The Ruling Class Does Not Rule” and “Beyond Corporate Liberalism”. For the influence of the neo-Marxist theories of the State on the critical legal scholars, see Tomlins, The State and the Unions, xiii, and Tushnet, “A Marxist Analysis of American Law”.

^27. Tomlins, The State and the Unions, xiv.

^25. Tushnet opened his “A Marxist Analysis of American Law” with a reference to the “revival of interest in Marxist theory in political science,” see 96.

^26. Tomlins, The State and the Unions… xiii. See also Klare, “Judicial Deradicalization of the Wagner Act,” 275, and Tushnet, “A Marxist Analysis of American Law,” 96.

^28. See Tushnet, “A Marxist Analysis of Labor Law,” 105, and Klare, “Labor Law as ideology,” 454.

^29. See Tomlins, The State and the Unions, 81: ‘It was plain that for Leiserson the object in advocating joint determination was not to transcend conflicts inherent in capitalist production and corporate organization and ultimately transform the mode of production itself, for, like Commons, Leiserson did not subscribe to the notion that any such inherent conflict might exist or that any such transformation might be necessary. Rather, the object was to obtain the consent of employees to their continued participation in the further development of the capitalist mode’. See also Casebeer, “Holder of the Pen” and Van Wezel Stone, “The Postwar Paradigm,” 1515–6.

^30. Klare, “Labor Law as Ideology,” 452.

^31. Tomlins, The State and the Unions, 327.

^32. See Galambos, “Technology, Political Economy, and Professionalization,” 471–93. A more recent assessment of the organizational synthesis is Balogh, “Reorganizing the Organizational Synthesis”. For an article in which this influence was stronger, see Tomlins, “AFL Unions in the 1930s”.

^33. James N. Gregory, “The Unmaking of the American Working Class”.

^34. “Lane Kirkland Says Many Workers Avoid NLRB, Calls Board an ‘Impediment’ to Labor Organizing,” Daily Labor Report, 18 June 1993. Kirkland had expressed similar views earlier, during Congressional hearings. Trumka, “Why Labor Law Has Failed,” 881.

^36. Kessker-Harris, “A New Agenda for Labor History,” 221. In the same fashion, Sally Alexander has remarked that “Experience of class, even if shared and fully recognized, does not, as Thompson and others have suggested, produce a shared and even consciousness,” quoted in Baron, Work Engendered, 7.

^35. Alexander, “Women, Class and Sexual Difference,” 231, as quoted in Baron, Work Engendered, 7.

^37. Kazin, “Struggling with the Class Struggle,” 509.

^38. Diggins, “Comrades and Citizens”.

^39. Dubofksy, “Not So Turbulent Years”.

^40. Roy Rosenzweig had noted this point very early on in his work on the organizations of unemployed workers, see his “Organizing the Unemployed”. See also Gerstle, Working Class Americanism, 1990; Cohen, Making a New Deal; Freeman, In Transit. To be sure a New Left spirit still obtained in the 1990s, and was visible in Lynd, We Are All Leaders and Denning, The Cultural Front.

^41. Fraser, Labor Will Rule. Lichtenstein, Walter Reuther.

^42. Fraser and Gerstle, The Rise and Fall.

^43. For an example of this dialog, see Brinkley, “The Best Years in Their Lives,” 16–21. This reading of the New Deal was stressed in Dawley, Struggles for Justice. See Brinkley, The End of Reform. Note that unlike Lichtenstein, Brinkley rejected the idea that social democracy was a possibility in the 1940s.

^44. Dubosky, The State and Labor.

^45. Dubosky, The State and Labor, 234, 237.

^46. See particularly Dubofsky's conclusion, 234–8. In State of the Union, Lichtenstein partly disagrees with this assessment and sees the opposition between labor solidarity and civil rights as the main wedge that was driven in the New Deal labor Relations regime. See Lichtenstein, State of the Union, chapter 6.

^47. Clark, Like Night and Day.

^48. Metzgar, Striking Steel.

^49. On the crits and Hobbes, see Bauman, Ideology and Community, 21–3.

^50. Abraham “Individual Autonomy and Collective Empowerment”; Schiller “From Group Rights to Individual Liberties”. Gross, Broken Promise.

^51. On the debate over the “end of work,” see Rifkin, The End of Work and William Bridges, Jobshift. The need to devise new labor relations adapted to the service economy is emphasized in Reich, The Work of Nations. Hecksher, The New Unionism. For a history of the post-Fordist idea, see Brick, “The Post-Capitalist Vision”.

^52. Petro, The Labor Policy of a Free Society and The Kohler Strike. On Petro, see McCartin and Vinel, “Compulsory Unionism”. Here, I am drawing on this research.

^53. On Hayek and Mises, see Philips Fein, Invisible Hands. There is as yet no study of Hutt. “Review of William H. Hutt”.

^54. Phillipps Fein, “American Counterrevolutionary”; Lichtenstein, The Retail Revolution. Logan, “The Union Avoidance Industry in the United States”. McCartin, “Fire the Hell Out of Them!”.

^55. Lichtenstein, State of the Union.

^56. Lichtenstein, Labor's War at Home, 3.

^57. Jacobs, Pocketbook Politics. Klein, For All these Rights.

^58. The refusal of critical scholars to imagine future societies is analyzed in Bauman, Ideology and Community.