Jefferey Kahana, The Unfolding of American Labor Law: Judges,Workers, and Public Policy Across two Political Generations, 1790-1850
The overlap of labor history and legal history has been fertile ground for historians and legal academics for well over two decades now. Studying the evolving notions and debates about the proper allocation of legal rights to workers, unions, and employers can re-veal much about the larger values of a society. Perhaps because of this, various historians of labor and employment law have drawn very different lessons from largely the same body of cases and doctrine. Jeffrey Kahana’s understanding of these values are central to his interpretation of laws governing both individual workers and early forms of unions in his new study, The Unfolding of Labor Law.
In this book, Kahana takes strong positions on two debates in the field of nineteenth-century labor law: (1) the extent to which American law in this area was largely based on English common law; and (2) the extent to which American legal rules were a product of class-bias and/or anti-union sentiment, as opposed to other principles and ideologies. On both issues, scholars have ranged considerably. As to the first, Karen Orren has insisted that U.S. law was not only based on English common law, but was essentially feudal, and Christopher Tomlins has argued that much of American law was at leastsignificantly based on English common law; on the other hand, Robert Steinfeld and Victoria Hattam found more differences between American law and English common law. On this issue, Kahana is the furthest away from Orren, arguing that post-revolutionary America engaged in an almost wholesale rejection of English common law. On the second issue, Kahana also stakes out a position on the far end of the spectrum, arguing not only that laws regulating workers and unions were driven by concerns much different than class bias but also that by 1840, unions had largely been liberated from the constraints of conspiracy law. Overall, one is unlikely to find a more positive, upbeat view of early American labor and employment law.
