Version classiqueVersion mobile

Liberté / Libertés

Sylvia Ullmo

III. Libertés incertaines et nouvelles incertitudes

A Counterfeit Liberty? The Wagner Act and its critics: an assessment

Jean-Christian Vinel

Texte intégral

1Once seen as the cornerstone of a legislative revolution that brought liberty and democracy to the workplace, the New Deal labor relations regime and its centerpiece, the 1935 Wagner Act, have come under increasing criticism in the last 20 years. In the 1960s and 1970s when labor unions still seemed well entrenched in the American political economy, their legitimacy accepted and their contribution acknowledged, it was still natural to celebrate the achievements of a law which, since 1935, had sustained the labor movement and its claims to industrial democracy. Labor's precipitous decline in the 1980s and 1990s, however, cast a cloud of doubt on the true nature of the protection that labor had been granted during the New Deal. If the law indeed provided American workers with a protection akin to that enjoyed by European workers, why was the American labor movement in such disarray by the 1980s? And why were labor leaders sometimes calling for changes in the law, if not calling for its outright abrogation?

2Thus, by the 1980s, times were ripe to reevaluate the blessings of the New Deal and the very nature of the "labor-management accord" that had stemmed from it. The need to reconcile historical scholarship and social and industrial reality led a group of historians and legal scholars to take a much more critical view of the law –far from freeing workers from employer control and enhance their living standards, the Wagner Act, in the words of the most famous of these commentators, actually granted workers a “counterfeit liberty” which only serves to enlist workers in a system that ensures their submission. The New Deal was therefore nothing but a snare and a delusion.

3To be sure, at first this fresh interpretation of 20th century political history generated a large controversy. Yet, by the late 1980s it had become accepted as the standard account, and had reached intellectual maturity: it fitted squarely with the idea that the militancy and radical potential of the 1930s had been defeated and reduced to a much more moderate (or even conservative) New Deal Order in the 1940s (Fraser and Gerstle, 1989). The dissenters were few and far between at first, and in the last 20 years, very few historians have taken issue with the idea that the right to organize is "counterfeit liberty". The shattering impact of the theory of the legal scholars, combined with the declining interest in things legal and political, turned the “counterfeit liberty” theory into the standard account (Lichtenstein, 1993, ppl-19).

4The thrust of this article is to show that we yet have to fully understand the contribution of the legal scholars – far from simply reinterpreting the history of the state and labor, they have redefined the terms and the terrain of that history, producing a full paradigmatic shift that I call the "critical school". The goal of this article is to trace the ideological and methodological origins of that paradigm, and critique it. The critical school, I shall argue, is not devoid of problems or contradictions. Before accepting that the history of American labor law is little more than the story of ever more sophisticated methods designed to entice workers to participate in their own subjugation, and before endorsing a reversion to the AFL-style voluntarism (as many practitioners of the critical school apparently urge), we should at least question the findings of the critical paradigm, and assess its implications for labor history methodology. As unions seek to reinvent themselves, healthy and vigorous debate on the nature of the liberty granted during the New Deal is more necessary than ever. Thus, let us now turn to the task of opening up a debate on the Wagner Act and its critics.

The Critical School: Origins and Underpinnings

The liberal interpretation of the Wagner Act

5In the early 1980s, historical scholarship on the Wagner Act and its aftermath was still dominated by the progressive analysis after WW2 in books such as Irving Bernstein's The New Deal Collective Bargaining Policy. According to Bernstein, the Act had tilted the legal system in favor of the workers by granting them the incontestable right to organize and bargain collectively (Bernstein, 1950). Key to this interpretation was the idea that workers had fought for this right, and gained it by shifting the emphasis of New Deal politics from recovery to reform. The progressive analysis was echoed by labor law historians like Charles O'Gregory, for whom the significance of the Wagner Act was only matched by the 1842 Massachusetts Supreme Court ruling Commonwealth ν Hunt, which protected unions against conspiracy charges (O'Gregory, 1958, 224):

The employers thought that it was bad enough, under the Norris-LaGuardia Act, to have federal courts forbidden to enjoin outside unions from moving in on open or non union shops...After this Act they could not even defend themselves against what many still regarded as a menace to our national economy. It was a bitter blow for rugged individualists brought up in the tradition of American economic free enterprise.

6Naturally, the progressive interpretation of the New Deal had been challenged. In the wake of William Appleman Williams's The Tragedy of American Diplomacy, and Gabriel Kolko's The Triumph of Conservatism, a group of New Left historians centered on Studies on the Left derided the New Deal as a conservative impulse. New Deal legislation, they claimed, had passed because a few sophisticated corporate liberals had supported it (Unger, 1971). Organized labor was conservative movement whose leaders had entertained a partnership with corporate America and accepted to integrate labor in the corporate order (Radosh, 1970).

7The New Left assault on liberalism, however, had not really altered the dominant vision of the significance of the Wagner Act. Indeed, it had not altered the liberal vision of the relationship between law and historical change. According to this somewhat whiggish vision, societies evolve on the path toward ever greater liberty. Law, although a somewhat separate and disconnected category from society, accompanies that evolution, for historically the legal system has adapted to changing social needs (Gordon, 1984, 60-67). Hence, the prevailing account had it, the Wagner Act had tilted the legal order in labor's favor by eliminating the imbalance between judicial decisions and social reality.

8This idea, however, was dealt a severe blow in the late 1970s and early 1980s. In the context of the fall of the labor-liberal accord, a group of legal scholars associated with the critical legal studies movement reworked the New Left impulse, bringing it to bear upon the history of American labor law. The result of that effort was a scathing revisionist analysis of the National Labor Relations Act and its impact on the labor movement.

Critical legal studies, the New Left, and the origins of the critical synthesis

  • 1 Duxbury 1995 is a rare attempt to tell the social, political, and cultural history of that movemen (...)

9The critical legal studies movement was above all a political project –debunking the assumptions of mainstream legal scholarship. By the end of the 1960s, many law students were disenchanted with the way law was taught in America. There was a patent disparity, they thought, between the liberal pluralist theory they were presented with and the actual use of law, which they saw as an instrument of social control.1 Liberal society, they argued, is structured by domination and hierarchy. The existence of hierarchy, however, is masked by the rule of law (Hutchinson, Monahan, 1984). Hence to CLSers the idea that there might be even a partial distinction between law and politics was untenable. Law was politics, and "a game heavily loaded in favor of the wealthy and the powerful" (Burton, 1986, 359).

  • 2 “It's really a rag-tag band of left over ‘60s people and people with nostalgia for the great event (...)

10There was a clear Marcusean cast to this argument. Indeed, Herbert Marcuse —an intellectual godfather of the New Left— argued that in modern liberal societies, liberty operates as "powerful instrument of domination", for liberalism grants citizens a liberty that entices them to believe their wishes are met by their freedom to produce and consume (Marcuse, 1964). Although CLS came too late to be part of the New Left, it had strong political and institutional links to it. Many CLS members had actually participated in the New Left as a political movement.2 Thus in 1970, Duncan Kennedy, one of the founders, denounced the authoritarian system of Yale in a review published by the university: the Vietnam war, he said, "has made young people...more reluctant than in the past to commit a part of a legal system which they know to be brutal...Students see professors as people who want to hurt them" (Duxbury 1995, 421). In what has become a cause célèbre, Staughton Lynd, another important member of the group, was denied tenure in the History department at Yale because of his well-known opposition to the war.

11Institutional links to the New Left as an intellectual movement were also significant. Mark Tushnet, one of the founders of CLS, studied history with Eugene Genovese. His “Marxist Analysis of American Law”, a founding text of the movement, appeared in Marxist Perspectives in 1978. New Left journals published two other early important pieces of CLS work: Kathryn Van Wezel Stone's “the Origins of the job structures of the Steel Industry” which was published in Radical America in 1972, and Karl Klare's “Law Making as Praxis”, published in Telos in 1979.

12Hence it is not surprising that the critical scholars critique of new Deal collective bargaining Law should sound New Left themes. The point of departure of their work is a critique of the very pluralism the New Left rebuked. Accordingly, critical scholars recurrently used the concept of “participatory democracy”, for they found too little of it in the shape assumed by the collective bargaining system. As Duncan Kennedy once remarked, CLS represents “the emergence of a new left intelligentsia committed at once to theory and to practice, and to creating a radical left world view in an area where there were only variations on the theme of legitimization of the status quo” (Kennedy, 1981, 506).

13“We are engaged in an active, transformative anarcho-syndicalist political project", Mark Kelman remarked in 1984 (Kelman, 1984, 326). Indeed, from the beginning CLS attacked liberalism on several fronts —it embraced a wide range of topics ranging from labor law to legal theory. More recently, critical legal scholars have dealt with race, gender, and feminist studies (Tushnet 1991, 1517). The CLSers who turned to the history of labor law, however, were by far the most active and the most successful group. They built on the theoretical insights of CLS to produce a full-fledged revisionist interpretation of the New Deal labor relations regime's history.

The critical school

14Although their politics came from the New Left, the scholars who built the critical school did not endorse the form of Marxism that underpinned the work of the historians linked to Studies on the Left. Instead, they turned to an emerging body of Marxian social theory which had taken an important role in repudiating the theory of "corporate liberalism" the early New Left historians propounded (Tomlins 1985, xii).

15Indeed, the Corporate Liberal idea was rebuked by neo-Marxist scholars who derided the belief that the State was the simple tool or instrument of the capitalists. That rebuke was largely predicated on the work of social theorists like Nicos Poulantzas, who, in the sixties had given a new impetus to Marxian theory (Poulanzas, 1969). Against the classic, “instrumentalist” view of the State, Poulantzas, advocated a "structural" Marxism, based on the idea that the state has "relative autonomy" from the capitalist class. Rejecting the idea of a class conscious ruling class, Poulantzas argued that the State need not be purposive, for its processes and structures make for conservative results. Poulantzas's work was used in the late 1970s by political scientist Fred Block to challenge the Corporate liberal theory, which largely relied on an instrumental view of the State (Block 1977).

16In many ways, the critical school arose out of this debate on the nature and distribution of power in America. Thus, Tushnet opened his “Marxist Analysis of American Law” with a reference to the “revival of interest in Marxist theory in political science” (Tushnet, 1978). Indeed, like the neo-Marxists, the critical school rejects the instrumentalism inherent in the Corporate liberal synthesis and-in Tomlins’ words— its “conspiratorial model of politics and decision making”(Tomlins 1985, xiii; Klare, 1978, 275). Rather, it relies on the idea that law is a coercive apparatus protecting capitalism. As Tomlins wrote (Tomlins, 1985, xiv):

Historically, state institutions have escaped political and ideological constraints arising from private capital's strategic influence (...) Even then, the very form and structure of the state, and the law which is the state's language, has continued to exhibit and "essential identity" with the essence of capitalism (...) Indeed, it is precisely this historic homology of legal form and commodity form underpinning the capitalist state that gives it the capacity to take action which does not necessarily accord with the interests of particular capitalists and yet meet the demands of the greater capitalist system.

  • 3 See Christopher Tomlins 1985, 81: "It was plain that for Leiserson the object in advocating joint d (...)

17Key to the analysis of law at the heart of the critical school are two ideas. First, legal doctrine is incoherent, which makes it possible to satisfy specific groups that may require a particular piece of legislation and yet protect capitalism in the long run (Tushnet, 1991 105; Klare, 1981, 452). Second, the critical school draws on the Gramscian concept of "organic intellectuals", that is, intellectuals who devise ideological forms favoring the interests of the ruling class. In the history of labor law, such intellectuals are lawyers, judges, National Labor Relations Board members and labor economists. This is particularly apparent in Tomlins's analysis of William Leiserson's work or Kathryn Van Wezel Stone's account of the influence of labor economists such as John Dunlop and lawyers such as Archibald Cox.3

18The primary focus of the critical school is the industrial pluralist system that prevailed from the end of WW2 to the 1970s. As they tackled the history of the New Deal labor law regime, those authors wondered why the regulation of the workers' collective activity had evolved into collective bargaining in an essentially contractual framework. Their answer is twofold: collective bargaining law articulates an ideology aiming to legitimate employer domination in the workplace, and as such has devised an institutional architecture that reinforces this hierarchy and domination (Klare, 1981, 452). According to the critical school, the democratization of the workplace brought by the Wagner Act was a fraud because it robbed the working class of its militant power. Indeed, the Act emphasized collective bargaining contracts as a method of conflict resolution, at the expense of more traditional forms of protest such as the strike. Yet collective bargaining is a process in which workers are at a strong disadvantage. Contracts, moreover, often entailed no-strike pledges, and were considered binding on both parties by the courts. Most importantly, unions took a crucial role in the enforcement of contracts and the disciplining of workers. Hence the critical school faults the New Deal labor relations regime for establishing in the workplace an authoritarian structure conducive to the deradicalization of the labor movement. In Tomlins's words, “what the State offered workers and their organizations was ultimately no more than the opportunity to participate in the construction of their own domination” (Tomlins 1985, 327).

19While the critical school forcefully advances the idea that the New Deal Labor Relations Regime is a fraud, its appeal is somewhat diminished by problems that speak to the need to carry further research in labor law history. Some legal scholars have voiced strong doubts on the merits of the CLSers' vision of labor history (Finkin 1984, Rabban 1987). Today it is vital to supplement their remarks with a critique from an historian's viewpoint to understand the challenge with which the Critical School has presented historians.

The Critical School: A Critique

20The idea that the right to organize is a counterfeit liberty suffers from three major problems. First, strong tensions between the works that constitute the critical school weaken its main point. Second, the teleological tendencies of the critical school histories are such that much of the historical record recedes into insignificance. Finally, when one reads these works closely, a strong undertow emerges, revealing a possible alternative reading of the historical record.


21Despite their shared conclusion that the New Deal labor relations regime is a system that serves to entice workers to participate in their own submission, the analyses of the Critical scholars are far from being totally reconcilable. Karl Klare explains that in the late 1930s, the Supreme Court eschewed the contours of a new jurisprudence to deal with the new status of unions and collective bargaining (Klare 1978). In a series of decisions, it created a “new legal consciousness” that preserved the status quo in industrial relations and deradicalized the Wagner Act. By contrast, Kathryn Van Wezel Stone believes that the main legal evolution took place in the late 1940s and 1950s, when labor economists and lawyers convinced the Supreme Court to adopt a model of labor relations —namely, industrial pluralism— that denied employees substantive rights under the NLRA (Van Wezel Stone, 1981).

22Christopher Tomlins agrees with Stone that industrial pluralism was the system that came to be adopted, but unlike Stone, he believes it was already in place before the Taft-Hartley Act was voted in 1947, and was largely the work of the NLRB. Stone, by contrast, portrays the NLRB as the victim of the Court decisions in the 1940s and 1950s. Unlike these three authors, Atleson does not single out a specific period as a turning point, and sees no doctrinal evolution in the Court's jurisprudence. Indeed, he takes issue with both Klare and Stone, expressly rebuking the idea that the Court devised a new legal consciousness or endorsed the theory of industrial pluralism. Rather, the Supreme Court has interpreted the Act in light of older common law notions, all of which were in wide use prior to the enactment of the NLRA (Atleson, 1983). Thus, in its 1938 McKay decision, the Supreme Court ruled that a company had the right to hire replacement workers –a ruling which shows that after the New Deal, the law still considered an employer's need to maintain business operations at all times as a priority.

23This of course presents us with three important problems. First, if historians are to gauge the impact of Supreme Court decisions on the labor relations regime, they need to understand their nature and their doctrinal and ideological underpinnings more fully. As long as there are such disagreements among legal scholars on the Court's work, it will remain difficult to accept the theory that it was the catalyst of the deradicalization of the Wagner Act. Second, for historians to link the work of the Court to the evolution of the labor movement, a better chronological understanding of the history of legal doctrine is essential. If we cannot ascertain the key moments of the history of the Court's jurisprudence, then we cannot fathom the impact of this jurisprudence on the labor movement's history. Third, because of these tensions, the relationship between the NLRB and the Court remains difficult to understand, as does the role that each of them played in the development of labor policy following the Wagner Act.

24The main problem with the critical school, however, is that it is made of teleological histories that rarely show the paths not taken. This determinism is noticeable at three different stages of the elaboration of the critical synthesis – in the framing of its underlying assumptions, in the construction of its analytical framework, and in its overall assessment of the labor relations regime.

Teleological Histories

25First, key to the conceptualization of the critical school is the assumption that had the New Deal labor relations regime given them the chance, workers would clearly have subverted the capitalist system and transformed relations of power in the industrial world. According to Klare,

The treatment of workers as sellers of labor power and as consumers of commodities, but not as producers, hindered them from achieving an alternative perspective in which worker self activity, the process by which workers produce value by embodying their labor power in things, services and relationships, would be recognized as the basis of all production in, and reproduction of society” (Klare, 1981, 321).

26Indeed, in a Gramscian perspective, the critical school posits that the NLRA betokens the theory of bourgeois cultural ideology because it co-opted the workers’ movement. “Perhaps the divine right of Kings was dead, but the result was closer to a constitutional monarchy than a codetermination model”, Atleson remarks (Atleson, 1983, 63). In reifying and essentializing the unify and the radicalness of the labor movement, those authors feel no need to demonstrate that workers were, in fact, radical. Nor do they seek to demonstrate the impact of the evolution of legal doctrine on the labor movement. The only evidence of such an impact is the repeated calls for a revision or an abrogation of the Wagner Act. The history of legal doctrine and that of the labor movement still run on separate tracks. They are brought together only through a juxtaposition that invites the reader to infer the links between the two histories.

27Here the critical school suffers in light of more recent analyses of labor law history before the New Deal. Victoria Hattam has shown that class consciousness and the way it translates into political ideology can be historicized, while William Forbath has convincingly argued that the emergence of the AFL's voluntarism in the early twentieth century largely resulted from Supreme Court decisions. By way of contrast, for the post-1935 period historians have been much less able —or willing— to demonstrate the ways in which a legal framework shapes the structure and orientation of the labor movement.

28Determinism, moreover, is evident in the analytical framework of the critical school, which provides us with a self contained and self-sufficient history. It reduces labor law history to the agency of the Courts, and in Tomlins's work to the NLRB, thereby leaving the political, social, and cultural realms without historical importance. This is particularly visible in the State and the Unions, where Tomlins, grounds his analysis of nineteenth century labor law in the broader context of the American political economy, slowly narrowing the focus of the book on the polity for his analysis of the passage of the Wagner Act, and finally focusing on the NLRB as he moves on to analyze of the impact of the New Deal. As for Klare, Stone, and Atleson, their focus on the legal process is much narrower straight through.

29This makes for several problems. First, the relations of power between the NLRB and the Courts remain unclear. No author has dwelt on the strategies adopted by the NLRB to push through its policies and maintain its power. Van Wenzel Stone argues that the Supreme Court largely weakened the Board by giving precedence to private arbitration, but without attempting to find out if the Board actually sought to fight back, and how. Second, Congress –an obviously important actor in the development of labor law— makes scant appearances in the critical synthesis. Because Congress can at any time repeal or amend the Court's interpretation of the Wagner Act, it seems essential to understand when it has done so and why. Taft-Hartley obviously looms large in the history of labor law, but its importance is diminished by both Stone and Tomlins. Yet if the Court or the NLRB did subject the labor relations regime to broader conservative political aims, why did Congress modify a regime that had been, or was in the process of being tamed? Historians further need to know along which lines Congress divided on labor issues. Who in Congress supported labor, and why?

30In the same fashion it seems clear that the critical school scholars pay insufficient attention to politics. Truman's failure to push for a revision of Taft-Hartley is well known and much more could probably be gained from a closer study of presidential labor politics. This is quite apparent in Tomlins's The State and the Unions, where W.Leiserson's appointment to the NLRB is the fulcrum the narrative is built around. Yet Tomlins says little on the appointment itself. Recently, James Gross argued that successive conservative nominations to the Board foreclosed the possibility of a more radical interpretation of the law. As Robert Zieger has remarked, Gross thus reintroduced politics in the history of labor relations —how could nominations to the NLRB have any impact if the fate of the labor relations regime is determined by Supreme Court decisions (Zieger 1997)?

31Naturally, shedding light on other political institutions ultimately brings us to assess the strategy and the influence of unions on the political process. Indeed, union leaders seldom appear in the work of the critical school scholar. Only Tomlins devotes some time to them – though his analysis partakes of the same strategy, for he totally ignores the CIO. The unions’ absence in the critical school is particularly striking in Kathryn Van Wezel Stone's article. If indeed the Supreme Court was under the influence of lawyers and labor sociologists like A.Cox and J.Dunlop, historians need to assess the influence of labor leaders. Such an analytical framework simply precludes any analysis of the way workers and unions responded to NLRB and Supreme Court decisions. Overall, we simply do not know how workers adapted to a law that had thoroughly politicized and institutionalized labor relations.

32Furthermore, historians should certainly cringe at historical analyses conducted without regard for their broader political context. The cold war, for one, certainly had an influence on the development of labor law, if only an indirect one. Similarly, the changing political climate in the 60s must be considered, for it notably led to a change in federal labor policy, with Kennedy issuing an executive order legalizing collective bargaining law in the public sector.

33Finally, determinism also undermines the critical school in its assessment of the impact of the Wagner Act on the labor movement. As with the CIO —whose role is never analyzed— this can lead to gaping holes in the narratives. Thus, towards the end of his analysis, Christopher Tomlins explains how the NLRB grappled with the issue of supervisory unionism. After having assented to the foremen's organizing drive, Tomlins explains, the Board changed its position under the influence of Gerard D.Reilly. Tomlins sees in this reversal evidence that the Act was interpreted in a way that would favor labor peace, not the rights of employees (Tomlins, 1985, 264). Tomlins, however, fails to mention that the Board reversed itself once more the following year, and that its decision to support supervisory unionism was subsequently sanctioned by the Supreme Court –hardly evidence for the theory that labor law always preserves management's power. Indeed, Congress soon moved to override the Supreme Court's interpretation of the Act with the Taft-Hartley Act, which expressly prohibits supervisory unionism.

A Strong Undertow

34There are times, however, when ignoring the benefits of the act is not possible. In such cases, these authors acknowledge the benefits and then proceed to belittle them. Thus, in the pages following his analysis of the 1938 McKay decision, James Atleson discusses the 1963 Erie Resistor Supreme Court decision, which prevents companies from granting seniority to employees who returned before the strike ended. Atleson, however, did not think that his analysis should be modified, simply acknowledging that "the result of Erie Resistor is that the employer's need to maintain operations is not necessarily decisive in every situation" (Atleson 1983, 26). Indeed. Yet if Mackay really was the seminal decision Atleson says it was, one wonders why 24 years later, the Erie Resistor Company went to such lengths to avoid proceeding to strike replacements.

35In the same fashion, Karl Klare, in his discussion of the Pittsburgh Plate Glass decision, criticizes the NLRB and the Supreme Court for deciding that the six plants of the Pittsburgh Plate Glass Company would constitute a single bargaining unit. This, Klare argues, made it impossible for any independent union to emerge in any of the plants. Consequently, the NLRB enjoyed the power to "delimit the contours of the class struggle". Yet as Klare himself admits (albeit not as clearly), this decision was also aimed at preventing one of the employers’ favorite tactics against unionism-the concentration of operations in one plant where production was untrammeled by the larger union, thereby greatly limiting the impact of the strike (Klare, 1978, 76).

36Such elements, although they appear as details in those works, are significant. They constitute a strong undertow in the narrative warning readers that the implementation of the Wagner Act was not a lopsided game in favor of the ruling class. Most importantly, implementing the law sometimes presented the NLRB and the Courts with contradictory objectives: the protection of the right to unionize did not necessarily dovetail with that of the independence of unions.


37In the final analysis, the critical school presents us with an ironical paradox –though predicated on the idea that law and politics are not separate categories, its account of the history of law is one in which law is autonomous from social and political struggles. Indeed, the efficiency of the concept on which it relies-law as an instrument of domination—is such that it leads its practitioner to slight the institutional political and ideological realms. The conclusions to which it leads seem so compelling that they entice the scholar to discard evidence to the contrary as unworthy of attention.

38My point here is not to downgrade the important work of the critical scholars. On the contrary, I emphasize how much their analysis has changed the way we look at labor political history. Yet, impressive and elaborate though they may be, those studies remain too short on historical thickness —rather than a definite account, they should be seen as a crucial step in the development of new analytical framework which would acknowledge the centrality and structuring function of legal concepts in labor history. In the meantime, the current woes of the labor movement notwithstanding, it seems a bit premature to conclude that indeed, the Wagner Act provided workers with a "counterfeit liberty". Indeed, the recent publication of Nelson Lichtenstein's State of the Union shows that the historiographical ground is slowly shifting, and that labor historians are poised to take a fresh, more positive look at the liberty that workers won during the yeasty years of the New Deal.


Works cited

Atleson, James, 1993. Values and Assumptions in American Labor Law. Boston: The University of Massachussets Press.

Bernstein, Irving, 1950. The New Deal Collective Bargaining Policy. Berkeley: University of California Press.

Block, Fred, "Beyond Corporate Liberalism", Social Problems, vol 24, N° 3, 1977, p. 352-360.

Brody, David, “Workplace Contractual ism in Comparative Perspective”, in Industrial Democracy in America: the Ambiguous Promise. H.Harris and N.lichtenstein Eds. Cambridge’ Mass: Cambridge UP, 1993, p. 176-205.

—, "Thinking about Industrial Unionism". Workers in Industrial America.

Burton, Stephen J., "Legal Reasoning and the Left", Journal of Legal Education 36, September 1986, p. 358-370.

Collomp, Catherine, et M. Debouzy, "L'histoire ouvrière", in Chantiers d'Histoire Américain., J.Heffer and F. Weil, eds. Paris: Belin, 1994, p. 375-406.

Duxbury, Neil, 1995.Patterns of American Jurisprudenc., Oxford: Oxford U.P.

Finkin, Matthew, 1984. "Revisionism in Labor Law". Maryland Law Review, vol 43.

Gregory, Charles O, 1958. Labor and the Law, 2nd ed. New York.

Gordon, Robert, 1984. “Critical Legal Histories”, Stanford Law Review, vol. 36, p. 58-125.

Greenberg, Edward S, 1990. Ed, Changes in the Stat. London: Sage.

Hutchinson, Allan C, and Patrick J. Monahan, 1984. “Law, CLS and Politics”, 36 Stanford Law Review.

Kennedy, Duncan, 1981. “CLS: A Comment”. Industrial Labor Relations Law Journal, vol 4, N°3.

Kelman, Mark, 1984. "Trashing", Stanford Law Review, vol 36.

Klare, Karl, 1978."Judicial Deradicalization of the Wagner Act and the Origins of Modern Legal Consciousness. 1937-41". Minnesota Law Review, vol 62, p. 265-339.

—, 1979. “Law Making as Praxis”, Telos N° 40, p. 123.

—, 1981. “Labor Law as ideology: Toward a New Historiography of Collective Bargaining Law”, Industrial Relations Law Journal, vol 4.

Lynd, Staughton, 1996.Ed. We Are All Leaders: the Alternative Unionism of the early 1930s, Urbana: University of Illinois Press.

Marcuse, Herbert, 1964. One Dimensional Man: Studies in the Ideology of Advanced Industrial Society.

Rabban, David, 1987. "Has the NLRA Hurt Labor? The State and the Union, Christopher L.Tomlins", University of Chicago Law Review 54.

—, 1984. "Radical Assumptions About Labor Law", Columbia Law Review, vol 84.

Radosh, Ronald, 1970. “The Corporate ideology of American Labor from Gompers to Hillman”, in J.Weinstein, and D.W Eakins, eds, For a New America: Essays from Studies on the Left". New York.

Tomlins, Christopher, 1985. The State and the Unions, New York: Cambridge.

Tushnet, Mark, 1991. “CLS: A Political History”, Yale Law Journal, vol 100.

—, “A Marxist Analysis of American Law”, Marxist Perspectives, Spring 1978.

Van Wenzel Stone, Katherine, “the Post-War Paradigm in American Labor Law”, Yale Law Journal, vol 90, N°7, June 1981.

Zieger, Robert H, 1997. “Historians and the U.S. Industrial Relations Regime”, Journal of policy History.


1 Duxbury 1995 is a rare attempt to tell the social, political, and cultural history of that movement For a dissenting view, see Kalman, 1997.

2 “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 1995, 435.

3 See Christopher Tomlins 1985, 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 suscribe 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 Kathryn Van Wezel Stone, 1981,1515-1516.


Jean-Christian Vinel est ATER à l'Université François Rabelais à Tours et spécialiste d'histoire ouvrière américaine. Lauréat de la bourse Fulbright, il a rédigé une thèse sur l'histoire de la définition de la notion de travailleur aux États-Unis (Université Lumière Lyon 2, 2004).

© Presses universitaires François-Rabelais, 2005

Conditions d’utilisation :

Cette publication numérique est issue d’un traitement automatique par reconnaissance optique de caractères.


Rechercher dans OpenEdition Search

Vous allez être redirigé vers OpenEdition Search