LAWYERS AGAINST LABOR: FROM INDIVIDUAL RIGHTS TO CORPORATE LIBERALISM by Daniel Ernst. Champaign, IL: University of Illinois Press, 1995. 334 pp. Cloth $49.95. Paper $18.95.

Reviewed by Richard A. Brisbin, Jr., Department of Political Science, West Virginia University
 

Among political scientists there is a tendency to locate the initiation of interest group litigation in the 1930s with first stages of the NAACP's campaign against racial segregation. Although briefly recounted in Lee Epstein's CONSERVATIVES IN COURT (1985), political scientists also have neglected the early years of anti-union litigation by conservative business interest groups. Viewing group litigation from the perspective of liberal groups, they associate conservative litigation with a Reagan-era reaction to liberal group successes. Daniel Ernst, a law professor at Georgetown University, debunks both of these assumptions in LAWYERS AGAINST LABOR.

Ernst's study is a legal-political history of the American Anti-Boycott Association (AABA) in the years from 1900 to 1920. Ernst employs the standard methodology of the "new" legal history by extensively citing documentary sources, many unpublished, to link labor law doctrinal developments with social and political activity. Consequently, he treats doctrinal development as a judicial response to the instrumental political litigation by the AABA. The litigation itself is a product of economic conditions affecting the profits of AABA members, their sense of elite moral status, less directly, the existence of the courts as an institutional forum respectful of traditional property rights. He also explains how doctrinal change stimulated further instrumental litigation by the AABA and labor unions. Despite its concern with the instrumental actions of the AABA, his study also considers in part how a shift in the constitutive perspective of labor law influenced AABA activity.

The opening three chapters of the book describe the formation of the AABA as a pro-open shop group representing the smaller "proprietary" Connecticut capitalists of the hat trade. These capitalists held their firms as sole proprietorships, were locked into competition with emerging multi-divisional corporations, and agreed with the traditional common law view of unions as conspiracies aimed at depriving owners of their "timeless" natural right to use their property. Charles Merritt, president of the AABA board, employed as its General Executive Agent an attorney, Daniel Davenport. Davenport was a master political entrepreneur. Through speeches and use of the media he preached the dangers of the union or closed shop, sought new AABA members for collective legal action to defend the open shop, and pursued federal litigation as the primary means to advance the AABA position. Relying on the political science literature on group formation, Ernst also shows how Davenport provided incentives for AABA membership dues, including legal advice and in some instances the direction of litigation of their case.

The next seven chapters describe the litigation and legislative campaigns of the AABA from 1903 to 1918. Most of these chapters attend to the litigation that resulted in U. S. Supreme Court pronouncements on the closed shop, including LOEWE v. LAWLOR (1908 & 1915) (the Danbury Hatters' case), GOMPERS v. BUCK'S STOVE AND RANGE CO. (1911), and PAINE LUMBER CO. v. NEAL (1917). In these cases the author recounts how Davenport modified his natural rights approach to attack labor by using anti-trust law. Another chapter considers the AABA lobbying effort, during the drafting of the Clayton Act, to influence Congress to make labor unions an unlawful trust.

Ernst reaches several significant conclusions as he recounts these events. First, the AABA under Davenport continued to pursue aggressively the natural right theory of proprietor control even as the courts developed a tort doctrine to protect proprietors from "malicious" interference with their enterprise. The tort doctrine, pioneered by judges like Oliver Wendell Holmes, Jr., did not treat all unions as conspiracies inimical to the rights of proprietors. Rather, only a range of union actions, like boycotts, could be judged harmful and then suppressed by injunction. In part, Davenport's arguments about precedent and statutes like the Clayton Act succeeded. Judges distinguished the encompassing scope of Davenport's version of the natural right theory, but it did not disappear from their opinions.

Second, Ernst illustrates how both Davenport and labor lawyers used the litigation to cement their groups' constituencies. They both knew that the outcomes of any judicial action were not a conclusive final verdict. Instead, the decision had to be used to mobilize supporters for further action in the halls of Congress and in other courts. Davenport especially knew that litigation was but part of an ongoing political struggle for the protection of his clients in the AABA as he pursued aspects of the Danbury Hatter's decision for a decade after the first Supreme Court action.

Third, Ernst discusses how the constitutive concepts of the legal status of labor came into question during the first decades of this century. He describes how economic power as an absolute individual possession, a natural right of owners, was challenged by a tort law approach that recognized the labor union as a legitimate collective that could engage in bargaining or transactions with proprietors in ways that diminished the power of owners while providing for the greater community goods of industrial peace and improved quality of life for many citizens. Law thus was providing new categories to shape economic life.

These three conclusions illustrate some of the strengths of Ernst's study. Besides being based on through research, he understands that complexities and partial legal victories are the norm, he appreciates the interweaving of sometimes shifting and diverse political objectives in group behavior, and he understands the greater political context in which group litigation and legal change efforts are located. Additionally, he illustrates how a relatively small association directed by one lawyer can have immense effect on capital and the nations workers, how the political philosophy of one lawyer can determine the behavior of a group and the direction of its litigation, and how incremental change can mark a group's use of litigation in pursuit of policy objectives.

However, Ernst's study has some limitations. Like many case studies of interest group litigation, it concentrates on one side of the conflict. The reader thus learns a great deal about the people and policy choices of the AABA, but Ernst treats the people and policy choices of the American Federation of Labor (AFL) only with regard to their interaction with the AABA and national political leaders. Ernst also could be more precise about the latitude Davenport had in directing litigation by adding more information about how the board of the AABA interacted with Davenport. Little is said about why the AABA chose the litigation strategy in the first place or how the internal organizational politics of the AABA shaped its ongoing litigation strategy.

Also, Ernst could better locate his AABA study in the history of American law and politics. In a recent book not cited by Ernst, Karen Orren (1991) describes labor law before the New Deal as constituting a "belated feudalism." The legal philosophy of the AABA, rooted in the pre-liberal natural rights assumptions of the common law of master and servant, indicates that liberal ideas of contract and community good had not yet affected some proprietors by the early twentieth century. Legal progressives, a phrase and a political movement ignored in Ernst's book, undertook to use tort law to constitute a liberal, contract-based labor law. Orren finds the legal progressives victorious in 1935, but as Ernst shows, the traditionalists were on the ropes two decades earlier. Indeed, in a brief final chapter that falls far short of being a conclusion, Ernst details how Walter Gordon Merritt, son of an AABA founder, took effective control of the AABA in 1918, had it renamed the League for Industrial Rights, and abandoned Davenport's natural rights defense of the open shop in favor of a tort approach. This point ought to be stressed, for it marks a critical change in the assumptions of American management-worker relations. No significant political group supported the natural rights of business proprietors against labor conspiracies after 1918. Business could only litigate the maliciousness of collective action by workers.

Despite these criticisms, political scientists of the Law and Courts Section and their graduate students will find Ernst's book a valuable contribution to our understanding of the politics of interest group litigation. Clearly it debunks the myth that interest group litigation is a late twentieth century phenomenon fashioned by liberals to misuse the courts as policy makers. Ernst tells us that businessmen did it earlier and for their own profit, social prestige, and moral self-justification.