The State, the Unions, and the critical synthesis in labor law history: a 25-year retrospect

Abstract

This article responds to Jean-Christian Vinel's assessment of the ‘critical synthesis’ whose proponents created labor law history as a new and flourishing field of scholarship in the decade after 1978. Vinel accords my book, The State and the Unions (1985) a key role in the development of this new field. Here, I situate my book in relation to the critical synthesis, and assess the capacity of critical legal scholarship to address the current parlous state of the U.S. labor movement. I look to current labor historians to engage with and build on the work that the labor law historians undertook.

Notes

^1. Gordon, “Critical Legal Histories,” 57–125.

^2. See, for example, Horwitz, The Transformation of American Law, 1780–1860; Horwitz, The Transformation of American Law, 1870–1960; Tushnet, The American Law of Slavery; Schlegel, American Legal Realism and Empirical Social Science.

^3. Tomlins, “The State and the Unions”, published in substantially revised form as Tomlins, The State and the Unions.

^4. Tomlins, “What is Left of the Law,” 165.

^5. 47 Stat. 70, 23 March 1932.

^6. 49 Stat. 449, 5 July 1935.

^7. See generally, Rogers, “In the Shadow of the Law,” 283–302, particularly 291–93. For a greatly expanded version of the same analysis, see Rogers, “Divide and Conquer,” 1–147.

^8. For figures in this paragraph see Rogers, “Divide and Conquer,” 54; Bureau of Labor Statistics, “Union Members Summary.”

^9. It is worth noting that public sector unionism and public sector labor law have been treated as distinctly poor cousins in labor law history. For indications of what may be gained from systematic attention to the public sector, see Slater, “Petting the Infamous Yellow Dog,” 485–501; Tomlins, “The Heavy Burden of the State,” 605–29, at 606–11.

^10. On CLS as a distinctively law-centered phenomenon, see Tomlins, “Framing the Field of Law's Disciplinary Encounters,” 959–63.

^11. Klare, “Judicial Deradicalization,” 265–339, at 265–66, citing Conkin, FDR and the Origins of the Welfare State, 63.

^12. Ibid., 265, 270.

^13. Ibid., 291.

^14. Ibid., 268–70.

^15. On the origins of the “relative autonomy” formulation popular among socio-legal scholars in the 1970s and 1980s as a description of the relationship between law and economy, see Tomlins, “How Autonomous is Law?,” 45–68, at 49–52. For a distinct non-Althusserian variation derived from the “capital logic” theory of the pre-World War II Soviet jurist Evgeny Pashukanis, see Balbus, “Commodity Form and Legal Form,” 571–88.

^16. Klare, “Judicial Deradicalization,” 339.

^17. Stone, “The Post-War Paradigm,”, 1509–80.

^18. Ibid., 1580.

^19. Thus see Klare, “Labor Law as Ideology,” 450–82, and Lynd, “Government Without Rights,” 483–95, together with critical comments from Dubofsky, “Legal Theory and Workers' Rights,” 496–502, and somewhat less critical comments from Kennedy “Critical Labor Law Theory,” 503–6.

^20. Atleson, Values and Assumptions in American Labor Law.

^21. An important exception to this otherwise accurate generalization is Holt, “Labour Conspiracy Cases in the United States,” 591–663.

^22. Klare's “Judicial Deradicalization” and Stone's “Post-War Paradigm” were each made the subject of a lengthy and withering assault in the pages of the Maryland Law Review by Finkin. See Finkin, “Revisionism in Labor Law,” 23–92. For Klare's response, see Klare, “Traditional Labor Law Scholarship,” 731–840. The exchange continued through a second round: see Finkin, “Does Karl Klare Protest Too Much?,” 1100–10, and Klare, “Lost Opportunity,” 1111–23. Meanwhile, the Stanford Law Review CLS symposium was published without a word on critical labor law. Well before 1984, CLS attention had become focused on elaboration of the indeterminacy thesis, on Kennedy's exposition, and subsequent abandonment, of the idea of liberal legalism's “fundamental contradiction,” and, increasingly, on Unger's attempts to infuse legal theorizing and political action with postmodern social theory. For the indeterminacy thesis, see e.g. Tomlins, “What is Left of the Law,” 160–62. For the fundamental contradiction and its abandonment, see Kennedy, “The Structure of Blackstone's Commentaries,” 205–382, particularly 211–21; Gabel and Kennedy, “Roll Over Beethoven,” 1–56. (In “Critical Legal Histories,” at 114, Gordon can be found using “the fundamental contradiction” as the basis of law's “indeterminacy” notwithstanding Kennedy's abjuration only a few pages earlier.) For the mounting influence of Unger on CLS, see Unger, The Critical Legal Studies Movement. For Unger's brand of radical political democracy, see in particular Unger, Politics: A Work in Constructive Social Theory.

^23. See e.g. Bernstein, The New Deal Collective Bargaining Policy; Bernstein, The Lean Years; Bernstein, Turbulent Years; Derber, The American Ideal. For an assessment, see Brody, “Labor and the Great Depression,” 231–44.

^24. See e.g. Galenson, The CIO Challenge to the AFL.

^25. See e.g. Montgomery, Workers' Control in America, particularly 153–80. The left-revisionist critique of industrial pluralism was one element in a wholesale reevaluation of how labor history should be written that raged in the 1970s. See e.g. Montgomery, “The Conventional Wisdom,” 107–36; Zieger, “Which Side Are You On?,” 279–90; Brody, “The Old Labor History and the New,” 111–26; Montgomery, “To Study the People,” 485–512.

^26. See e.g. Epstein, “A Common Law for Labor Relations,” 1357–1408; Dickman, Industrial Democracy in America.

^27. The most complete restatement of this position is Dubofsky, The State and Labor in Modern America. See also Brody, Workers in Industrial America; Zieger, American Workers, American Unions. For a more recent and more realistic appraisal, see Brody, Labor Embattled.

^28. By this I mean that my graduate school education and research was never undertaken under the direction of a recognized labor historian or a recognized legal historian. Not only did I originate “outside” America but I also worked at a fairly considerable remove from the direct influence of scholars specializing in the two main components of what came to interest me most. This dual alienage may explain why some labor historians and some critical labor lawyers each had a little difficulty figuring out The State and the Unions. “This is a strange book indeed.” Dubofsky, “Book Review,” 470. And see also Hyde, “Book Review,” in Re-Working, a kind of samizdat publication distributed by the indefatigable Ken Casebeer of the University of Miami Law School. Unfortunately I have lost my copy of Hyde's review, but as I recall he thought I was “a sympatico fellow” but that NLRB lawyers would laugh at the book.

^29. The former became my master's thesis, “The Economic Basis and Political Expression of Agrarian Radicalism in the Western and Southern United States, 1870–1896” (Graduate Division of American Studies, University of Sussex, 1974) of which I remain inordinately proud. The latter, sadly, never came to anything beyond notecards.

^30. See Galambos, “The Emerging Organizational Synthesis,” 279–90, and Galambos, “Technology, Political Economy,” 471–93.

^31. Taft, The A.F. of L. in the Time of Gompers; Taft, The A.F. of L. from the Death of Gompers to the Merger; and Taft, Organized Labor in American History.

^32. Tomlins, “AFL Unions in the 1930s,” 1021–42. Some years later a CIO patriot who shall remain nameless told me that reading the article had made him “very angry.”

^33. See e.g. Tomlins, “After Critical Legal History,” 31–68, particularly 32–41; Tomlins, “History in the American Juridical Field,” 323–98, particularly 384–98; Tomlins, “What Would Langdell Have Thought?,” 187–247, particularly 225–47.

^34. Gordon, “Critical Legal Histories,” 63–4, 71–100.

^35. Ibid., 114.

^36. Ibid., 125; and see Gordon, “New Developments in Legal Theory,” 281–93, particularly 289–92.

^37. This problem is acknowledged in Gordon, “The Past as Authority and as Social Critic,” 365.

^38. Tomlins, “What is Left of the Law,” 164.

^39. Although I do not discount law as ideology, I am in agreement with Rogers that what is of particular importance is “how the general structure of the legal regime shape[s] the formation and the pursuit of interests.” See Rogers, “Divide and Conquer,” 3 (n.7).

^40. Dezalay and Garth, “Legitimating the New Legal Orthodoxy,” 306–34, at 311–12; Bourdieu, “The Force of Law,” 814–53.

^41. For a statement of my “position” at that time and subsequently, see Tomlins, Law, Labor and Ideology, xi–xvi.

^44. Ibid., xiii–xiv.

^42. On politics as CLS's escape hatch, see Tomlins, “What is Left of the Law,” 161–2. By these measures, Forbath's Law and the Shaping of the American Labor Movement is a more appropriate representative of critical labor law history in book form than The State and the Unions.

^43. Tomlins, The State and the Unions, xiii (emphasis added).

^45. Ibid., 328.

^52. Quoted in “President Obama tips his hand on Boeing and the NLRB,” (emphasis added) (Los Angeles Times, 30 June 2011). Accessed 2 July 2011. http://opinion.latimes.com/opinionla/2011/06/president-obama-tips-his-hand-on-boeing-and-the-nlrb.html. See also Hananel, “Boeing-NLRB Labor Dispute Turns Into Headache for Obama” (Real Clear Politics, 29 June 2011). Accessed 2 July 2011. http://www.realclearpolitics.com/articles/2011/06/29/boeing-nlrb_labor_dispute_turns_into_headache_for_obama_110403.html. Seeing as I have become autobiographical in this response to Vinel, I will add that throughout my adult voting life whether in the UK, or Australia, or the United States, I have never failed to vote for parties that would represent themselves as motivated by some form of social democracy (in other words the Labour Party, the ALP and the Democrats) nor to be disappointed by the outcome (with the single exception of Paul Keating's ALP Government in 1991–1996).

^46. Vinel, “Tomlins's The State and the Unions Today,” (ms 2). This is as good a place as any to register my disagreement with Vinel's title: the unions have not gone, although they are sorely pressed.

^47. Gordon, “Critical Legal Histories,” 125.

^48. Though the level of internal consensus is not otherwise great, recent opinion, at least as represented by the Labor History Symposium on David Brody's Labor Embattled , would seem united in skepticism on this score. See Stein et al. 547–81.

^49. On which see Klein, “What Happened to the ‘Fierce Urgency of Now?’” (Washington Post, 4 April 2011), Accessed 2 July 2011. http://www.washingtonpost.com/business/economy/what-happened-to-the-fierce-urgency-of-now/2011/04/04/AFFsyzfC_story.html.

^50. Vinel, “Tomlins's The State and the Unions Today,” (ms 2).

^51. I feel bound to observe that what I argued at the Industrial Relations Research Association annual meeting in January 1995, in the midst of the last Democratic Administration, still holds true now, in the midst of this one: “given a legal culture that especially in recent years has consistently followed a trajectory of harassment and limitation of labor law's breadth of application, just how realistic is it to hold out to the uncovered the prospect that the same legal culture … is now going to give them what so many of its denizens have worked so assiduously for so long to make sure they don't get?” Tomlins, “Revitalizing the Law of Work (Discussion),” 216–20, at 218.

^53. “Supreme Court Reinstates Collective Bargaining Law” (Milwaukee Wisconsin Journal Sentinel, 14 June 2011). Accessed 2 July 2011. http://www.jsonline.com/news/statepolitics/123859034.html.

^54. American Law Institute, Restatement of the Law Third Employment Law. Endorsement of duties of loyalty as established components of the employment contract would continue an established modern tendency to return (explicitly) to the common law of master and servant as the generic discourse of the employment relation. See e.g. NLRB v. Town & Country Electric, Inc. , 85.

^55. “Protest signs at a union rally in April 2011, in Cleveland, Ohio” (photo caption) (Guardian, 1 July 2011). Accessed 2 July 2011. http://www.guardian.co.uk/commentisfree/cifamerica/2011/jul/01/nlrb-boeing-unions.

^56. Vinel, “Tomlins's The State and the Unions Today,” (ms 1).

^57. Brudney, “Neutrality Agreements and Card Check Recognition.” On the long and lamentable history of NLRB representation elections, see Becker, “Democracy in the Workplace,” 495–603; Logan, “Representatives of Their Own Choosing,” 549–67; Tomlins, “The Heavy Burden of the State,” 618–21.

^58. Tomlins, The State and the Unions, 328.