Oldham's "Law and Politics at the National Industrial Relations Court"

New from Hart/Bloomsbury: Law and Politics at the National Industrial Relations Court 1970-75: "Rather Peculiar Things," by Peter Oldhan, K.C.:

 Constitutional and employment lawyers, and indeed anyone interested in the history of the times, will not want to be without this deeply researched yet entertaining work.

When the Heath Government came to power in 1970, it set up the National Industrial Relations Court to referee highly contentious disputes between unions and employers. Regarded with hostility by the labour movement from the start, the Court and its President, Sir John Donaldson, faced mounting suspicion, and were regularly front-page news. When Donaldson jailed five dockers in 1972 – the Pentonville Five – for defying the Court's orders, strikes erupted and the docks closed. With the country's food supplies dwindling, a state of emergency loomed. How had it come to this? Could a way through be found?

This is a revelatory account of the National Industrial Relations Court's defining crisis, set in the context of a wider, and frequently startling, exposition of how Donaldson went about his role as its President.

Peter Oldham KC combines decades of experience as a barrister with archival research to shine a bright new light on how and why the Court found itself doing – in Donaldson's own words – "rather peculiar things."

--Dan Ernst.  TOC after the jump. 

Classroom Materials on the Supreme Court, 1874-1921

[We have the following announcement from the Supreme Court Historical Society.  DRE]

Rights, Commerce, and Reform: A New Era of Supreme Court History Classroom Resources

Discover Supreme Court History from 1874-1921 with a new era of resources from Beyond the Bench, our civics education website. The new era, Rights, Commerce, and Reform, includes over 20 new case summaries, resources, and life stories from the Waite, Fuller, and White Courts ready for classroom use.

Featured resources include:

• Justice Oliver Wendell Holmes: The Boston native, Civil War soldier, and Associate Justice whose legal theories revolutionized modern understanding of the law; 

• Belva Lockwood: The educator, activist, and attorney who became both the first woman to argue before the Supreme Court and to run for President of the United States;  

• Civil Rights Cases (1883): The Supreme Court decision that held the Civil Rights Act of 1875 to be unconstitutional and paved the way for Plessy v. Ferguson (1896) and Jim Crow segregation; 

• Muller v. Oregon (1908): The Supreme Court decision that upheld a gender-based state labor law and created a clear legal distinction between men and women in the workplace;  

• Standard Oil Co. v. United States (1911): The Supreme Court decision that established the “rule of reason” in antitrust law and demonstrated the government’s power to regulate monopolies and increase competition; and  

• The Judiciary Act of 1891: The law that created the United States Courts of Appeals and helped shape the modern Judiciary.

Cherneff on Reconstruction-Era Racial Apprenticeship

Lyle Cherneff, a 2024 Yale Law graduate, has published Remembering In re Turner: Popular Constitutionalism in the Reconstruction Era, in the Yale Law Journal:

This Note presents a historical account of the underexamined movement to end racialized apprenticeship laws in the post-slavery era. Original archival research from census records, Union Army files, and newspaper articles illustrate the contributions of formerly enslaved men, women, and children to the ultimately successful movement to declare Maryland's apprenticeship laws unconstitutional. Relying on the insights of Critical Race Theory and feminist legal theory, this Note fills a gap in existing legal history by producing a consideration of Reconstruction Era constitutional lawmaking "from the bottom." This Note argues that our shared constitutional memory has been artificially narrowed by an underconsideration of freedpeople's constitutional theories and claims. Restoring the anti-apprenticeship movement to our constitutional memory strengthens contemporary efforts to end racial discrimination in the child welfare system and to vindicate familial rights under the Thirteenth and Fourteenth Amendments.

--Dan Ernst

Phillips-Sawyer on the Labor Exemption and Extraterritoriality in Antitrust

Laura Phillips-Sawyer, University of Georgia School of Law, has posted two papers.  The first is  Restructuring American Antitrust Law: Institutionalist Economics and the Antitrust Labor Immunity, 1890-1940s, which appeared last year in the University of Chicago Law Review:

Thurman W. Arnold (LC)

 Labor unions and their leaders were cast as the perennial antitrust defendants for the first fifty years of federal antitrust law, and this historic imbalance fostered a movement in economic scholarship and labor activism to restructure American antitrust law. The progressive liberal-institutionalist movement in economics played an important role in legitimizing trade unions by recasting them, not as anticompetitive cartels, but rather as a necessary corollary to the growing market power of industrial firms. Louis Brandeis, the litigator and future jurist, drew from institutionalists’ work to support antitrust reform. He argued that antitrust law was not necessarily anathema to the interest of labor organizations, and he advocated for both the application of the rule of reason to labor association activities and the revision of antitrust laws to exempt certain labor activities. The Clayton Act of 1914 created such an antitrust labor exemption, but as soon as union activity spilled over into interstate commerce the Supreme Court insisted on antitrust liability and applied it categorically against laborers. Even after the passage of additional labor exemptions in the 1930s, the reigning Commerce Clause doctrine rendered labor’s immunity from antitrust liability uncertain. This lingering uncertainty was exacerbated by a fracturing within the progressive liberal movement as some economic institutionalists, schooled in the legal realist tradition, revived the Department of Justice’s antitrust prosecutions in the late 1930s. Assistant Attorney General Thurman Arnold led this renewed antitrust agenda; armed with a more expansive interpretation of federal commerce power, he targeted labor groups in several headline-grabbing cases, enraging his former allies on the Left. Arnold, however, seemed to represent a divergent institutionalism that embraced both the Brandeisian distaste for economic concentration and the Keynesian macroeconomic policies of mass consumption. Ultimately, in 1941, an uneasy settlement was reached in United States v. Hutcheson, where the Supreme Court authorized a non-statutory labor exemption for secondary boycotts. The ruling helped establish guardrails for lawful labor union activities; however, it did not resolve this division on the progressive Left, and laborers continued to seek protective legislation and statutory immunities. Recasting antitrust law’s bias against laborers as historically contingent demonstrates the moments of possibility to reconcile this historic imbalance, and it implicitly argues that the progressive law and economics movement provided necessary groundwork but also required interest group organization and statutory interventions.

The second is Jurisdiction Beyond Our Borders: United States v. Alcoa and the Extraterritorial Reach of American Antitrust, 1909-1945:

In 1945 Judge Learned Hand wrote one of the most influential opinions in modern antitrust law. In declaring that the Aluminum Company of America (Alcoa) had illegally monopolized the industry for virgin aluminum and had participated in an illegal international cartel, Hand both revived and extended American antitrust law. The ruling is famous for several reasons: It narrowly defined the relevant market in favor of the government; it expanded the category of impermissible dominant firm conduct; it interpreted congressional intent as protecting an egalitarian business environment; and it established the extraterritorial reach of US antitrust laws. Although each of those contributions has incited legal commentary and critique, Hand’s decision to redraw the territorial application of US antitrust has remained largely unexamined. This essay offers a historical explanation for the origins of antitrust extraterritoriality and advances two arguments: First, before and during the interwar years, the antitrust doctrine of strict territoriality had been eroded through a series of distinguishing cases and contradictory congressional policies. Second, the well-documented connection between European fascism and cartelization provided strong external pressures to extend American antitrust law and policy abroad and to redouble anticartel and antimonopoly provisions at home. Thus, both internal and external pressures culminated in the Alcoa case, which signaled a new era in American antitrust law—renewing both anticartel and anti-monopolization policy while at the same time linking market competition to the protection of American territorial and popular sovereignty. By 1945 extraterritorial antitrust emerged as an acceptable means of governance to curtail international cartel behavior, discipline monopolies at home, and impose an American-led liberal—and hegemonic—internationalism on its trade partners.

--Dan Ernst

Legal History in the "The Oxford Handbook of Feminism and Law in the United States"

Oxford University Press has published The Oxford Handbook of Feminism and Law in the United States, edited by Deborah Brake (University of Pittsburgh School of Law), Martha Chamallas (Moritz College of Law - the Ohio State University), and Verna Williams (University of Cincinnati College of Law). A number of the chapters may interest readers of the blog. Here's an overview from the Press:

Combining analyses of feminist legal theory, legal doctrine, and feminist social movements, The Oxford Handbook of Feminism and Law in the United States offers a comprehensive overview of U.S. legal feminism. Contributions by leading feminist thinkers trace the impacts of legal feminism on legal claims and defenses and demonstrate how feminism has altered and transformed understandings of basic legal concepts, from sexual harassment and gender equity in sports to new conceptions of consent and motherhood. Its chapters connect legal feminism to adjacent intellectual discourses, such as masculinities theory and queer theory, and scrutinize criticisms and backlash to feminism from all sides of the political spectrum. Its examination of the prominent brands of feminist legal theory shows the links and divergences among feminist scholars, highlighting the continued relevance of established theories (liberal, dominance, and relational feminism) and the increased importance of new intersectional, sex-positive, and postmodern approaches. Unique in its triple focus on theory, doctrine, and social movements, the Handbook recounts the history of activist struggles to pass the Equal Right Amendment, the Anti-Rape and Battered Movements of the 1970s, the contemporary movements for reproductive justice and against campus sexual assault, as well as the #MeToo movement. The emphasis on theory and feminist practice animates discussions of feminist legal pedagogy and feminist influences on judges and judicial decision making. Chapters on emerging areas of law ripe for feminist analysis explore foundational subjects such as contracts, tax, and tort law, and imagine feminist and social justice approaches to digital privacy and intellectual property law, environmental law, and immigration law. The Handbook provides a broad picture of the intellectual landscape and allows both new and established scholars to gain an in-depth understanding of the full range of feminist influence on U.S. law.

A selection of chapters of possible interest:

Tracy A Thomas, "The Long History of Feminist Legal Theory"

Julie Suk, "The Equal Rights Amendment, Then and Now" 

Leigh Goodmark, "The Anti-Rape and Battered Women’s Movements of the 1970s and 1980s"

Mary Ziegler, "From Reproductive Rights to Reproductive Justice: Abortion in Constitutional Law and Politics" 

Deborah Widiss, "Pregnancy and Work: 50 Years of Legal Theory, Litigation, and Legislation"

Melissa Murray and Hilarie Meyers, "Constitutionalizing Reproductive Rights (and Justice)" 

h/t Legal Theory Blog

-- Karen Tani

Public Workers in Service of America

Public Workers in Service of America: A Reader, edited by Frederick W. Gooding Jr. and Eric S. Yellin, has been published in The Working Class in American History series of the University of Illinois Press:

From white-collar executives to mail carriers, public workers meet the needs of the entire nation. Frederick W. Gooding Jr. and Eric S. Yellin edit a collection of new research on this understudied workforce. Part One begins in the late nineteenth- and the early twentieth century to explore how questions of race, class, and gender shaped public workers, their workplaces, and their place in American democracy. In Part Two, essayists examine race and gender discrimination while revealing the subtle contemporary forms of marginalization that keep Black men and Black and white women underpaid and overlooked for promotion. The historic labor actions detailed in Part Three illuminate how city employees organized not only for better pay and working conditions but to seek recognition from city officials, the public, and the national labor movement. Part Four focuses on nurses and teachers to address the thorny question of whether certain groups deserve premium pay for their irreplaceable work and sacrifices or if serving the greater good is a reward unto itself.

The contributors are Eileen Boris, Cathleen D. Cahill, Frederick W. Gooding Jr., William P. Jones, Francis Ryan, Jon Shelton, Joseph E. Slater, Katherine Turk, Eric S. Yellin, and Amy Zanoni.

--Dan Ernst

Andrias on Labor's Antimonopoly Vision

Kate Andrias, Columbia Law School, has posted Beyond the Labor Exemption: Labor's Antimonopoly Vision and the Fight for Greater Democracy, which is forthcoming in Antimonopoly and American Democracy, edited by Daniel A. Crane and William J. Novak (Oxford University Press):

Although the labor movement and the antimonopoly movement both oppose concentrated economic power and bemoan rising inequality, their projects are frequently viewed as divergent, if not incompatible. After all, courts have long used antitrust law against workers’ collective activity, and antimonopoly advocates have tended to deemphasize problems of class, focusing on breaking up business in ways that do not necessarily provide workers more power. This Essay shows, however, that the industrial unions of the early and mid-twentieth century saw themselves as antimonopoly advocates. They sought not only to free workers’ collective activity from antitrust law’s sanction, but also to advance an affirmative antimonopoly agenda. Yet their agenda was different in important respects from that of prominent antimonopolists, including Louis Brandeis: Labor’s focus was not on making business smaller, but rather on building workers’ countervailing power and increasing democratic control over the workplace and the economy, through a range of strategies including industrial organizing; changes to antitrust, tax, and banking policy; new forms of national economic planning; and public control of key industries. By examining labor’s antimonopoly vision beyond the struggle for a labor exemption, this Essay draws a more complicated picture of the American antimonopoly tradition—one that challenges the dominant narrative about the relationship between labor and antitrust and enriches our understanding of what the Progressive and New Deal-era antimonopoly vision entailed. It also suggests that, to unite the interests of workers, consumers, and citizens, the primary focus of a reform agenda going forward ought not be the size or even the market power of the firms in question, although those are certainly important factors, but rather the degree to which firms’ autonomy and power are democratically constrained either by the public or by the firms’ workers—in short, a program for greater democracy.

--Dan Ernst

Landmark Cases in Labour Law

New from Hart Publishing: Landmark Cases in Labour Law, edited by Jeremias Adams-Prassl, Alan Bogg, and ACL Davies:

This book features essays by leading legal scholars on 'landmark' labour law cases from the mid-19th century to the present day. The essays are acutely sensitive to the historical and theoretical context of each case, and the volume provides original and sometimes startling new perspectives on some familiar friends.

There are few activities as distinctively human as work and labour. The book traces the development of labour law through the social struggles and economic conflicts between workers, trade unions, and employers. The narrative arc of its landmark cases reveals the richness and complexity of the human story played out in the working lives of real people. It also charts the remarkable transformation of the constitutional role of courts in labour law, from instruments of class oppression to the vindication of workers' fundamental rights at work.

The collection will be of interest to students, scholars, and legal practitioners in labour and equality law, as well as students in management studies, industrial relations, and labour history.

TOC after the jump. 

Adams's "Legal Concept of Work"

Zoe Adams, Lecturer in Law, University of Cambridge, has published The Legal Concept of Work (Oxford University Press):

"Why do we think about some practices as work, and not others? Why do we classify certain capacities as economically valuable skills, and others as innate characteristics? What, moreover, is the role of law in shaping our answers to these questions?"

These are just some of the queries explored by Zoe Adams's analysis of the legal construction, and regulation, of work.

Spanning from the 14th century to the present day, The Legal Concept of Work explores how the role of law and legal concepts comes to consider some forms of human labour as work, and some forms of human labour as non-work. It examines why perceptions of these activities can change over time, and how legal constitution impacts the way in which work comes to be regulated, organised, and valued.

As part of the analysis, the book presents a series of case studies, ranging from the publishing industry, academia, medicine, and retail, with a view of illustrating some of the regulatory challenges different types of work face, in the context of capitalism.

--Dan Ernst

JSCH 47:3

Journal of Supreme Court History 47:3 has been published.  Here’s the TOC:

Introduction
Timothy S. Huebner

Articles

Anatomy of a Presidential Campaign from the Supreme Court Bench: John McLean, Levi Woodbury, and the Election of 1848
Rachel A. Shelden

A Forgotten First: Everett J. Waring, First Black Supreme Court Advocate, and the case of Jones v. United States  
John G. Browning

"Lost Laws" to "Eat Anywhere":  D.C. v. Thompson and the Road to Brown
Charles J. Sheehan

An Accident of History: The Fourth Amendment as Applied to Schools and New Jersey v. T.L.O.
Andrew H. Meck

Book Reviews 

Making Minimum Wage: Elsie Parrish versus the West Coast Hotel Company by Helen J. Knowles
Paul Kens

Judicial Bookshelf
Donald Grier Stephenson Jr.

Judt on the Wagner Act and the "Social Self"

Daniel Judt, a PhD candidate at Yale University, has published The Tragic Pragmatism of the Wagner Act in the American Journal of Legal History:

The Wagner Act established a right to collective action as the keystone of industrial democracy. In doing so, it also articulated a radical conception of the self: that individuals form genuine desires and attain full self-actualization through collective action. This conception ran counter to the traditional liberal idea of selfhood, which took possessive individualism as the fundament of democratic governance. This paper places the Wagner Act and its reception in the context of changing conceptions of the self in American political thought from 1920 to 1950. The Wagner Act derived its conception of democratic activity from a pragmatist and progressivist theory of the “social self.” But its reception took place amidst a very different intellectual context. By midcentury, a liberal hostility to “mass society” and its deleterious effects on individual choice had repudiated the older pragmatist collectivism. In other words, the Act’s core provision—the notion of collective action as central to the formation of workers’ individual desires—was born of a dying moment in American thought. The immediate hostility that the new labor law regime faced in Congress and the courts was a consequence, in part, of that disjuncture.

--Dan Ernst

Legal Historians in Berkeley's CSLS Speaker Series

The Speaker Series at the Center for the Study of Law and Society at Berkeley Law includes some legal
historians this fall:   

On Monday, October 3, Bruno Rodriguez de Lima, a Researcher at the Max Planck Institute for Legal History and Legal Theory, presents “Luiz Gama: Brazil’s Frederick Douglass”

On Monday, October 17, Hidetaka Hirota, Associate Professor of History at UC Berkeley, presents “The Influence of the Alien Contract Labor Law on the Development of U.S. Immigration Policy”

--Dan Ernst

Tushnet's "Hughes Court"

It's now out in print, from the Cambridge University Press: Mark V. Tushnet, Harvard Law School, has published The Hughes Court: From Progressivism to Pluralism, 1930 to 1941, the latest volume in the Oliver Wendell Holmes Devise History of the Supreme Court of the United States:

The Hughes Court: From Progressivism to Pluralism, 1930 to 1941 describes the closing of one era in constitutional jurisprudence and the opening of another. This comprehensive study of the Supreme Court from 1930 to 1941 – when Charles Evans Hughes was Chief Justice – shows how nearly all justices, even the most conservative, accepted the broad premises of a Progressive theory of government and the Constitution. The Progressive view gradually increased its hold throughout the decade, but at its end, interest group pluralism began to influence the law. By 1941, constitutional and public law was discernibly different from what it had been in 1930, but there was no sharp or instantaneous Constitutional Revolution in 1937 despite claims to the contrary. This study supports its conclusions by examining the Court's work in constitutional law, administrative law, the law of justiciability, civil rights and civil liberties, and statutory interpretation.

Here are some endorsements:

‘No one understands the politics of law better or takes the law more seriously than Mark Tushnet. With a complete mastery of the decisions of the Hughes Court, Tushnet shows us the justices as they saw themselves, professionals of disparate backgrounds, temperaments, and talents, dispatching, with the tools at hand, the disputes that ceaselessly came to them. Familiar constitutional landmarks are here, as is the high drama of Franklin D. Roosevelt’s ‘Court-packing’ plan, but so are more gradual changes in the law of the presidency, the administrative state, the federal courts, civil liberties, and civil rights that ended with the nation on the verge of a new constitutional order. Despite economic calamity and social strife, the Supreme Court thrived, not by being above politics, but by proving its worth by doing its job.’ Daniel R. Ernst, Carmack Waterhouse Professor of Legal History, Georgetown University Law Center

'In this tour de force, a master doctrinalist unpacks some of the twentieth century's most significant cases. In the process, he brilliantly unlocks the mystery of the Constitutional Revolution of 1937 that did not happen, investigates the invention of federal jurisdiction, explores the evolution of the administrative state, and illuminates the transformation of modern American liberalism. Bravo!' Laura Kalman, Distinguished Research Professor, University of California, Santa Barbara

 You can get a sense of the book’s scale from the TOC, after the jump:

SAPD 35:2

Studies in American Political Development 35:2 (October 2021) has been published:

From civil rights to social policy: the political development of family and medical leave policy
Kumar Ramanathan

Naturalizing affection, securing property: Family, slavery, and the courts in Antebellum South Carolina, 1830–1860
Gwendoline M. Alphonso

Select No Gestapo: J. Edgar Hoover's world-wide intelligence service and the limits of bureaucratic autonomy in the national security state
Harry Blain

The 1982 Voting Rights Act Extension as a “Critical Juncture”: Ronald Reagan, Bob Dole, and Republican Party-Building
Richard Johnson

When Think Tanks Refuse Thinking: Why American Pro-Market Conservatives Oppose Market Integration
Benedikt Springer 

--Dan Ernst

Treanor to Deliver Chase Lecture on Gouverneur Morris

The Supreme Court Historical Society and the Georgetown Center for the Constitution will hold the 8th Annual Salmon P. Chase Lecture on November 17 at 6 pm EST.  William Treanor, Dean of the Georgetown University Law Center, will deliver The Case of the Dishonest Scrivener: Gouverneur Morris and the Creation of the Federalist Constitution in person in the Hart Auditorium in Georgetown Law’s McDonough Hall, 600 New Jersey Ave., NW.   The sponsors will livestream the event.  You may register here.

The Society is still accepting registrations for two other lectures.  The Original Meaning of the 14th Amendment, with Randy Barnett and Evan Bernick, will be held at noon on November 10. Making Minimum Wage: Elsie Parrish v. The West Coast Hotel Company with Helen Knowles will be held on December 8 at noon.  

--Dan Ernst

Weekend Roundup

• The Historical Society of the New York Courts has posted the podcast Litchfield Law School’s Influence on NY State Bench & Bar and a Young Nation.  Host David L. Goodwin, Society Trustee, interviews Paul DeForest Hicks. 
  

• Joseph D. Kearney, Marquette Law, and Thomas W. Merrill, Columbia Law, “discuss the shenanigans that ultimately gave the city and the state of Illinois one of its most priceless parcels of land and preserves it for public use” in a podcast on the ABA Journal’s Legal Talk Network.  They are the authors of  Lakefront: Public Trust and Private Rights in Chicago (Cornell University Press).
  

• The abstracts for papers in the Asian Legal History Conference, July 24-25, are here.
  

• Congratulations to William & Mary Assistant Professor of History Brianna Nofil, the recipient of the 61st annual Allan Nevins Prize by the Society of American Historians for her dissertation, “Detention Power: Jails, Camps, and the Origins of Immigrant Incarceration, 1900-2002.”  (More.)
  

• 
  New online from Law and History Review and Cambridge Core: From Disestablishment to Dartmouth College v. Woodward: How Virginia's Fight over Religious Freedom Shaped the History of American Corporations, by Alyssa Penick, and Policing, Profits, and the Rise of Immigration Detention in New York's “Chinese Jails,” by Brianna Nofil.
  

• More on those indexes to those unpublished Office of Legal Counsel opinions, on Just Security.
  

• More CRT: The New Hampshire attorney general says that “teaching about the country’s history of slavery, its racist Jim Crow Laws, the Civil Rights Movement of the 1960s and the modern Black Lives Matter movement won’t violate state law even if those lessons make students uncomfortable, according to legal advice from the state Attorney General’s Office" (Concord Monitor).  
  

• And still more: Over 140 organizations, have signed onto this Joint Statement on Legislative Efforts to Restrict Education about Racism in American History, authored by American Association of University Professors, the American Historical Association, the Association of American Colleges & Universities, and PEN America. 

• From the History News Network: Ronald A. Smith (Penn State University), "How Historians Convinced SCOTUS that the NCAA's Idea of Amateurism is a Myth."
  

• We recently discovered the "Now & Then" podcast, hosted by historians Joanne Freeman (Yale University) and Heather Cox Richardson (Boston College). For a particularly relevant recent episode, checkout "Judging the Supreme Court."   

• The Law Library of Congress invites you to a webinar on federal statutes.
  

• From the Washington Post's "Made by History" section: Adam R. Shapiro, "When opponents decry critical race theory, they’re really fighting against change: the lessons of the Scopes trial for today."
  

• Fire in the White House!  At 7 PM EDT on July 28, the Elk Rapids Area Historical Society hosts a live stream of Craig G. Wright, Herbert Hoover Presidential Library and Museum, discussing the fire that gutted the West Wing and ruined the Oval Office on Christmas Eve, 1929.

• For anyone working on socio-legal history and technology: check out the new Law and Society Fellowship at the Simons Institute at Berkeley.

• ICYMI: George Thomas on America’s Imperfect Founding (The Bulwark). A notice of The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero, by Peter S. Canellos (Courier Journal). Woman suffrage and Prohibition in Iowa (Cedar Rapids Gazette).  The Buffalo-Niagara LGBTQ History Project’s first historic marker recognizes “local gay rights activist Bob Uplinger,” whose battle in an entrapment case contributed to decriminalization in New York (Buffalo Rising).
  

• Update: Colbert King on Karen Hastie Williams (WaPo).
  

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers.

Weekend Roundup

• From the Washington Post's "Made by History" section: Magdalene Zier (JD/PhD candidate, Stanford University) and John Fabian Witt (Yale Law School) on how, "For 100 years, the filibuster has been used to deny Black rights"; historian Rebecca DeWolf on why "2021 could finally be the moment for the Equal Rights Amendment"; Harrison Diskin (PhD candidate, University of Southern California) and Keith Pluymers (Illinois State University) on "what early American infrastructure politics can teach the Biden administration"; and more.

• Various media outlets have offered historical context for the mass shooting this past week in Georgia and the recent surge of anti-Asian harassment and violence. MSNBC ran a piece by Kevin Kruse (Princeton University) on "The Atlanta shootings, Vincent Chin and America's history of anti-Asian racism." NPR's The Takeaway spoke with Beth Lew Williams (Princeton University) about "the Deep History of Anti-Asian Violence in the U.S." History.com published an article on the 1875 Page Act.  The LA Times reminded readers of "the racist massacre that killed 10% of L.A.’s Chinese population and brought shame to the city."  
  

• Do you have thoughts on the academic letter of recommendation (LOR) system? Our blogger Mitra Sharafi and Ronit Stahl welcome your feedback here by Friday, March 26. This is for a LHB blogpost and/or a piece elsewhere.

• In the opinion pages of the New York Times, historian Gabriel Winant (University of Chicago) makes the case for better treatment of care workers and stronger government regulation of the care economy,
  

• From Environment, Law, and History: Soviet Water Law.
  

• Via Balkinization: Akhil Amar (Yale Law School) has started a podcast on "America's Constitution.

Weekend Roundup is a weekly feature compiled by all the Legal History bloggers. 

Bruce on Epic Systems and Labor Legal History

Stephen Bruce, a Washington, D.C. attorney, has posted Epic Errors: The Supreme Court Ignores the History of Collective Actions and Decades of Struggle to Establish 'Living Wage' Standards:

If an employer can take away the right of “acting together” from its employees and force them to proceed only “individually” to enforce rights related to their wages and other terms and conditions of employment, the employer has interfered with or restrained the “collective power of individuals” that Alexis de Tocqueville observed in Democracy in America. The Norris-LaGuardia Act of 1932, the National Labor Relations Act of 1935, and the Fair Labor Standards Act of 1938 are all New Deal era statutes – all of which are still in force today – which provide for the right of employees to proceed collectively or in concert. These statutes were the culmination of decades of struggle in workplaces and communities, state and federal legislatures, and state and federal courtrooms. Each rests on detailed Congressional findings that individual employees do not “commonly” enjoy “actual liberty of contract” or “full freedom of association” and have an “inequality in bargaining power” vis a vis the employer, and that “collective” actions to resolve disputes over the terms and conditions of employment are in the interest of employees and the public. And while it is rarely noticed today, from 1923 to 1925, the Supreme Court issued three unanimous decisions on the unconstitutionality of “compulsory arbitration,” holding that compulsory arbitration implicates the due process and liberty of contract protected by the Fourteenth Amendment, except in temporary emergencies. See, e.g., Charles Wolff Packing Co. v. Court of Indus. Rel., 267 U.S. 552, 565-66 (1925).

In Epic Systems Corp. v. Lewis, 138 S.Ct. 1612, 1624-25 (2018), a 5-4 majority opinion, written by the then-new Justice Neil Gorsuch, upheld compulsory arbitration agreements with “class action waivers” in three companion cases, even though the waivers clearly constituted unbargained-for restraints on the collective enforcement action provided in Section 16(b) of the Fair Labor Standards Act. All of the cases involved the right to receive overtime pay, which applies even when employees earn more than the minimum wage. In upholding the class/collective action waivers, the majority opinion in Epic displayed a near total ignorance of class and representative actions in “the old, nearly forgotten world before 1966," Elizabeth K. Spahn, “Resurrecting the Spurious Class,” 71 Geo. L.J. 119, 120 (1982). It also displayed a woeful ignorance of the history of the use of “liberty of contract” theories to block the enforcement of wage and hour standards, and Congress’ rejection of those theories in the legislative findings and declarations of policies of the New Deal legislation.

--Dan Ernst

Cummings on Lawyers and the Struggle for LA

Scott L. Cummings, UCLA Law, has published An Equal Place: Lawyers in the Struggle for Los Angeles (Oxford University Press, 2020):

An Equal Place is a monumental study of the role of lawyers in the movement to challenge economic inequality in one of America's most unequal cities: Los Angeles. Breaking with the traditional focus on national civil rights history, the book turns to the stories of contemporary lawyers, on the front lines and behind the scenes, who use law to reshape the meaning of low-wage work in the local economy.

Covering a transformative period of L.A. history, from the 1992 riots to the 2008 recession, Scott Cummings presents an unflinching account of five pivotal campaigns in which lawyers ally with local movements to challenge the abuses of garment sweatshops, the criminalization of day labor, the gentrification of downtown retail, the incursion of Wal-Mart groceries, and the misclassification of port truck drivers.

Through these campaigns, lawyers and activists define the city as a space for redefining work in vital industries transformed by deindustrialization, outsourcing, and immigration. Organizing arises outside of traditional labor law, powered by community-labor and racial justice groups using levers of local government to ultimately change the nature of labor law itself. 

Cummings shows that sophisticated legal strategy — engaging yet extending beyond courts, in which lawyers are equal partners in social movements — is an indispensable part of the effort to make L.A. a more equal place. Challenging accounts of lawyers' negative impact on movements, Cummings argues that the L.A. campaigns have achieved meaningful reform, while strengthening the position of workers in local politics, through legal innovation. Dissecting the reasons for failure alongside the conditions for success, this groundbreaking book illuminates the crucial role of lawyers in forging a new model of city-building for the twenty-first century.

--Dan Ernst

Fisk and Salter on the Law of Playwrights and Theatre Producers

Catherine Fisk, University of California, Berkeley School of Law, and Brent Salter, Stanford Law School, have posted Assumptions about Antitrust and Freelance Work and the Fragility of Labor Relations in the American Theatre, which is forthcoming in the Ohio State Law Journal:

Lee Shubert (NYPL)

As we look for examples of collective self-regulation in a gig economy, commercial theatre offers a century of experience with freelance work. Yet the Dramatists Guild and commercial theatre producers have negotiated collectively for nearly a century under a cloud of legal uncertainty at the intersection of antitrust law and labor law that dates to the pre-New Deal era. The revival of theatre after the catastrophe of the pandemic provides an opportunity to reconsider the four longstanding but unnecessary assumptions about antitrust, labor law, and copyright law that have shaped organizational structures and mediated relations between stage producers and writers:

Assumption #1: Playwrights, unlike actors or directors, cannot unionize under the National Labor Relations Act because playwrights are independent contractors.

Assumption #2: Playwrights must have the legal status of independent contractors under federal labor law, lest they lose control of the copyrights in their work under the work for hire provisions of the 1976 Copyright Act.

Assumption #3: Unionization of playwrights is not merely unprotected by the National Labor Relations Act (see Assumption #1), but it is affirmatively prohibited by federal antitrust law.

Assumption #4: The precarious legal status of playwrights as outlined in Assumptions 1-3 is necessary to protect their creative autonomy. Whatever economic security and stability writers could attain if the Dramatists Guild were a union and if there were real collective bargaining would be at the cost of dramatists’ creative freedom, independence, and ability to prevent the rewriting of their work. In short, to be a real artist, a dramatist necessarily must run the risk of being impecunious.

This article offers a detailed history, based on previously unavailable archival sources, of the origin of these assumptions, and how writers, producers, and various intermediaries struggled to create a functional system in the face of legal doubt. The history shows why it is time to abandon the assumptions about the significance of antitrust and copyright law in structuring relations between writers and producers.

--Dan Ernst