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Institutions, Antinomies, and Influences in Labor Governance

I will take up the editors’ invitation to respond to Catherine Fisk‘s remarks on Belated Feudalism within the framework of the two general questions she sees raised by each of the books in her review.’ The first question is the extent to which “judicial decisions shape social and political movements,” in particular the American labor movement. The second is whether this “shaping” explains the character of public social provision in the United States today. Fisk minimizes and doubts, respectively. Contrary to what I understand to be her reading of its argument, Belated Feudalism would agree with her on both counts. This may seem surprising, considering its emphasis on legal institutions and decisions. However, whereas Hattam and Forbath study courts in an attempt to explain the development of labor ideology, and trace labor’s emphasis on voluntarism to the role of the judiciary, my concern was with political development and how the labor movement’s actions-not its ideology-displaced ancient forms of workplace regulation that were constitutionally enforced over the first century and a half of the nation’s history. Because prior to the New Deal, courts were the institution of state labor governance, all change had to be negotiated through them and through the amalgam of common law rights they protected.