Book Review

This is an intriguing and deftly argued book that both rounds out our critical legal understanding of New Deal labor policy and challenges that understanding on key points of interpretation. O'Brien argues that the core premises of New Deal labor policy were forged by legislators and jurists during the half-century of Republican governance that preceded the New Deal. Over this time, state and federal courts gradually hammered out a doctrine of "responsible unionism" that granted workers and their unions a narrow range of procedural rights closely tied to federal regulation. For O'Brien, the familiar parade of landmark labor cases is less important than the political and legal debates that raged behind those cases and the dress rehearsal for the New Deal afforded by the Railway Labor Boards of the 1920s. The irony, ultimately, is that a confluence of interests generally hostile to statist solutions—including Republican legislators and jurists and the avowedly "voluntarist" American Federation of Labor (AFL)—pieced together a labor policy whose central premise was that unions be made responsible to the state.	1
O'Brien kicks off this story by sketching the confrontation between the AFL and the Progressive Movement, arguing that labor policy and law were shaped less by the politics of the injunction than by the different ways in which the AFL and Progressive reformers tried to negotiate around the courts; to accomplish, each in their own way, a "subtle reform of labor law that fell somewhere between repudiation of the labor injunction and immunity for organized labor" that exchanged "one form of legal restraint—the injunction—for another—the enforceability of collective bargaining agreements" (42). The middle chapters carry this confrontation to the arena of railway labor regulation in the 1920s—a neglected but crucial chapter in the history of American labor law and policy. Occupying the one corner of the economy in which the commerce clause did not question a federal presence, the two Railway Labor Boards (the first established by the Transportation Act of 1920 and fizzling out in the wake of the 1922 Shopmen's Strike, the second established by the Railway Labor Act of 1926) juggled all the basic questions of collective and individual rights, workers' representation, and federal oversight that would animate the labor policy debates of the 1930s.	2
The final chapters recast the history of New Deal labor policy in light of these Republican precedents. Faced with the task of mopping up after the demise of the National Recovery Administration (NRA) in 1935, as O'Brien argues, the architects of the National Labor Relations (Wagner) Act looked not to the NRA's gestures at corporatism but to the earlier experience of the Railway Labor Boards. The New Deal's boldest contribution, in this view, was to reconcile a general labor policy with the commerce clause. But the basic premises of that policy were less a product of New Deal liberalism than they were the harvest of a long history of Republican progressivism rooted in turn-of-the-century conceptions of the "public good," nurtured by a decade of railway labor regulation, and flowering in the passage of anti-injunction legislation (Norris-LaGuardia) on the eve of the New Deal.	3
Workers' Paradox supplements and sustains the arguments of a range of critical legal historians, while managing to connect the largely neglected dots between the late nineteenth century and the New Deal. O'Brien challenges the work of Daniel Ernst, William Forbath, Victoria Hattam, and others, who focus on the law's decisive impact on labor's strength and strategy in the late nineteenth century, by showing both how substantive debate over labor's place in the political economy continued through the 1910s and 1920s, and how the labor movement shaped the law as well. And O'Brien challenges the work of Christopher Tomlins, who glides past much of the first twenty years of this century without comment and who attributes the limits of the New Deal largely to abstractions about corporate power. In the end, O'Brien joins all of these scholars in a lament for both the timidity of the New Deal and the future it set for the labor movement while—in her attention to a long and complex history of progressive politics and legal discourse that cut across party lines—makes a better case than any of them.	4
I do think (and this criticism has more to do with the genre than with this particular account) that O'Brien ultimately puts too many of her causal eggs in one basket. The discussion of the 1910s and 1920s tends to slide past much of the actual—and remarkably diverse—experience of private collective bargaining. Just as they drew on public experiments such as the Railway Labor Boards, both Republican and Democratic labor policies attempted to codify private experiments in worker representation, union-management cooperation, or welfare capitalism as well. And the discussion of the New Deal is too dismissive of the immediate influences (including the experience of labor and industry under the NRA and the emergence of radical alternatives to the AFL) that shaped the drafting and passage of the Wagner Act. In an otherwise fascinating account, it is simply unnecessary (in my mind) to pose the prehistory of Republican labor policy as an alternative and exclusive causal explanation.	5
Colin Gordon University of Iowa

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