The Kansas Court of Industrial Relations (KCIR) was created in January 1920, an economically unsettled moment when the country’s political and intellectual leaders were keenly concerned about the incomplete, incoherent labor policy of the United States. The KCIR’s founders promised that its judicial model of managing disputes – a model that gave the court astonishingly wide powers to investigate the operation of industry, fix the material terms of working life, and criminally punish those who made the least threat to disrupt the orderly progress of commerce – would be an immediate “substitute for strikes” and would in time evolve a new, complete “common law of industry.” The KCIR, and its judgments, commanded immediate national attention. It was to remain prominent and divisive until its demise in 1923, when, in the span of a few months, the KCIR’s architects left office in Kansas, some of its leading national supporters (including President Harding) died, the country’s key forum for the development of model law banned it as a topic of discussion, and a landmark Supreme Court ruling dealt it a major political reversal. A century on, there is no reason to disagree with the verdict of 1923: In practical terms, the KCIR was a spectacularly unsuccessful policy, now most commonly regarded as a mere curiosity when it is thought of at all.Footnote 1
However, this book will show that the controversy surrounding this ill-designed, short-lived court was of wider importance. The KCIR episode is the key to understanding a comparatively significant but generally unrecognized aspect of American labor policy: Unlike every plausible point of legal, institutional, economic, or geographic comparison, the United States never used specialized courts as part of its framework for managing labor relations. The KCIR’s failure discredited a wider class of court-based policy designs that were extensively and successfully employed throughout the world during the interwar period. (The repressive corporatist features of the KCIR were also America’s introduction to the applied political logic of fascism.) Further, the debate on the KCIR had important effects on the direction of labor policy in the run-up to the New Deal: Although support and opposition did not follow the party or ideological divisions of the moment, the reactions clearly trace out the emerging view of labor policy – long on procedure, short on worker rights, and abstaining from direct government intervention in the material terms of employment – that became the basis of America’s unique labor policy regime in the 1930s.
Before turning to a fuller description of the eventful life of the KCIR and the general plan of the book, the following two sections set forth an overview of the respective comparative and historical contexts of the study. Because the exposition will be tightly focused by time, place, and topic, it is important at the outset to state the larger investigative stakes clearly. The comparative problem is simple: Why are there no labor courts in the United States? The KCIR episode completes the underdeveloped explanation for the extinction of what had been fairly serious American interest in labor court designs precisely when these designs spread most rapidly throughout the world. The historical problem is somewhat more complex. At the end of World War I, there existed both wide political agreement on the need for a better developed labor policy and wide ideological consensus about what such policy should and should not do. These conditions did not in fact produce major labor policy reforms, though scholars increasingly appreciate that the early 1920s were a period when other defining features of the modern American political order took shape; major New Deal legislation was in many ways a delayed solution to a problem that had appeared tractable fifteen years earlier.
Controversy over the KCIR contributes, partially but meaningfully, to the understanding of the period leading up to the New Deal. Supreme Court doctrines arising from the unique questions posed by the KCIR played a role in concluding a remarkable process of state social and economic policy innovation that remained quite vibrant through the 1920s – in doctrinal afterlife, rulings about the KCIR thereby worked to constrain the ability of states to meet the challenges of the Great Depression. And because the KCIR elicited nearly universal and often remarkably intemperate opinions from political, legal, and intellectual leaders of its time, position-taking on the KCIR, though not decisive for the subsequent evolution of policy, was a remarkably revealing test of where matters were trending and what kinds of organization were to be important. The KCIR controversy was the immediate context for decisions by which the legal profession, in its various organized capacities, took itself out of the business of social legislation. And in rejecting the KCIR’s central premises, Americans interested in labor policy began to cut themselves off from important international experiences and flows of ideas.
1.1 The Comparative Problem: Why Are There No Labor Courts in the United States?
Disputes between workers and employers may be prevented or resolved by any number of means. In the period between the world wars, almost all of the countries in the common law world, in the Americas, and in industrialized Europe made some use of specialized courts to manage industrial relations. The designs and names of these courts varied significantly. The most common terms used at the time may confuse the nature of their work a century later: Many of these bodies were called courts of “arbitration,” and in the United States, the most common term to describe these models was “compulsory arbitration.” Today, almost by definition, arbitration refers to a private rather than a public method of resolving disputes.
In the interest of providing a working introductory understanding, these judicial bodies may be generically referred to as labor courts, which shared a handful of features. Labor courts exercised power in a judicial or quasi-judicial form: They dealt with cases and characteristically resolved them by issuing a written ruling. Although they were generally embedded in a larger institutional framework that encouraged negotiated, consensual resolutions to disputes, labor courts themselves were adversarial settings. The work of labor courts was public. Labor courts, even if they had very modest caseloads, were standing rather than ad hoc bodies. Formally or by implication, their rulings therefore constituted a body of norms and precedents that informed the handling of subsequent cases. Their rulings were legally binding and in principle enforceable. In marked contrast to the umpire’s role defined for the United States National Labor Relations Board (NLRB), they had powers to fix material terms of the employment relationship such as wages, hours, and conditions of work.
Cross-national variation in labor court design in the interwar period was considerable.Footnote 2 In some polities, a labor court was a court of first instance for a fresh dispute, while in countries with very high union density it was usually a point of appeal or last resort after private or conciliatory public methods failed. In some polities, especially fascist ones, judges were chosen by the state alone, though it was more common for labor and employers to play a role in appointment. The use of a court was sometimes obligatory. The intensity of sanctions for noncompliance ranged from token censures to lengthy terms of imprisonment. And the underlying rationale varied: In some polities, courts existed mainly to protect worker interests, and in some, to protect the public’s interest in economic order.
Judicial models for managing industrial relations and disputes had spread widely around the globe by the advent of World War II. They became the foundation of industrial relations in Australia and New Zealand in the 1890s but spread most rapidly in the years after World War I.Footnote 3 In the United Kingdom, Norway, Sweden, and Denmark, industrial courts were founded during this period to create a public authority to stabilize a well-developed private industrial ordering between employers and trade unions; the British Industrial Court design ultimately spread to much of the Commonwealth.Footnote 4 A labor court system evolved gradually from Mexico’s 1917 social democratic constitution; labor courts diffused widely throughout Latin America by the early 1930s.Footnote 5 Mexico was certainly an influence upon the post-World War I constitutions of Germany and various newly independent Central and Eastern European polities that developed labor courts. In Germany, building upon the Weimar Constitution as well as deeper traditions, labor courts had acquired a systematic jurisdiction in working life by the late 1920s.Footnote 6 France and Belgium, likewise combining new designs with older statist economic traditions, developed a less complete labor court model. Labor courts, suitably enhanced with draconian penal sanctions, became a core feature of the economic policies of fascist and related authoritarian corporatist polities in Italy, Portugal, and Brazil, among others.Footnote 7 Canada had a short-lived experience with a labor court that covered a substantial portion of its industrial labor force in the early 1940s.Footnote 8 Thus, the United States was the lone major capitalist polity that never made substantial use of a labor court model.
1.1.1 Labor Courts: A Layered Path to Worker Rights and Wage Protections
Although policy ideas circulated freely around the world in the early decades of the century, few were adopted in such numerous and varied polities as labor courts: They answered a widely felt need. Courts are, in a nonideological sense, conservative: They are to some degree constrained by what has been said before and deal with specific disputes. Labor courts therefore won acceptance as a suitably measured, indirect means of confronting what reformers of all kinds regarded as a problem in their countries’ respective labor laws and institutions – forms of legal individualism that impeded the adaptation of law to industrial realities. Labor court designs varied widely according to the particular form this legal problem took. Where they succeeded, they did so by a process of change by layering, creating new rules that left existing law in place, but in time altered that law’s operation.
In Australia and New Zealand, the common law furnished no plain means to recognize labor unions and therefore provided no way of moderating the effects of disputes as labor movements grew in size and assertiveness. In the United Kingdom and Scandinavia, law had not kept pace with the dramatic expansion of private economic ordering, creating a deficit in public authority and a consequent risk of unmanaged escalation of industrial disputes. In Latin America, law had not adapted to the growth of wage labor, leaving the basic arrangements of working life seriously underdefined. In polities where fascists were attempting to convert political office into broader social control, due process and the recognized rights of the individual in the civil law tradition baffled the development of the collective categories of a corporative law.
Basic legal arrangements of this kind are difficult to change, in two respects. Politically and economically, many powerful actors are in a position to defeat efforts to alter the law of working life. This includes lawmakers and constitutional courts that may block or countermand change, and economic actors such as employers and unions whose opposition may practically doom what government attempts to do. Nor can the prevailing rules simply be reinterpreted to mean something else – the law, even if archaic, illogical, or unfair, was often plain enough to understand.
As James Mahoney and Kathleen Thelen observe, these conditions – strong possibilities to veto institutional change, coupled to rules unamenable to sweeping reinterpretation – are most susceptible to alteration by a strategy of “layering,” whereby new rules are superadded to old rules that retain their ostensible force and meaning.Footnote 9 Labor courts worked in precisely this way. They could be, and were, created with specific mandates and jurisdictions that left the main body of relevant law unaltered. In some polities, the new rules elaborated by labor courts did eventually transform the institution of labor law in quite profound ways. This strategy requires cooperation among actors with somewhat various visions for change. Fink puts this abstract observation about institutional change in context when he observes that the development of labor law in the Americas in the interwar period depended upon the cooperation of liberal intellectuals with labor.Footnote 10 The gradual emergence of a working trust between liberal industrial jurists and labor unions was likewise the key to the success of Australia and New Zealand’s respective court models.
Where labor courts succeeded, they tended to alter the institutional arrangements of labor law and policy in two specific ways. First, as they elaborated norms and procedures that would allow them to function, labor courts almost unavoidably generated a range of legal protections for workers. In Australia and New Zealand, courts obliged unions to register. This rendered unions subject to legal liability and sanctioning, but thereby also recognized unions as legitimate organizations with a place in the legal order.Footnote 11 In Latin America, labor courts working toward a definition of what an employment relationship is – and thus where jurisdiction existed – elaborated along the way a number of rights for workers, and friendly interpretive presumptions where law was silent or uncertain.Footnote 12
Second, labor courts developed wage doctrines tending toward the recognition of a baseline living wage, as well as a higher fair wage linked to features of a particular job. It was apparent to comparative law scholar Max Rheinstein by the late 1930s that the development of these general wage doctrines was inevitable, even when labor courts were founded with much more limited mandates to resolve specific disputes.Footnote 13 Pay was bound to be an issue in almost all disputes, particularly during a period when labor’s demands, throughout the world, were shifting from shorter hours to higher pay.Footnote 14 Courts could not reasonably hope to temper disputes without coherent approaches to wage claims. As Thelen observes, labor market institutions are not mere assemblages of problem-solving rules; they are undergirded by power and charged to answer basic questions of material distribution.Footnote 15 Labor courts could not have secured themselves any measure of legitimacy without facing up to labor’s key distributional demand. And judges needed doctrines because they could not deal with the merits of wage questions de novo in each dispute in the way that a more deeply resourced administrative agency might have done.
The wide adoption of labor courts, albeit with quite diverse designs, can be broadly understood as a solution to the same institutional problem across a wide range of polities: Law that was, from the reformer’s point of view, maladaptive but hard to reinterpret or discard. Labor courts, because they could layer over the existing law rather than directly attacking it, were an attractive model for reformers committed to orderly change – as well as nascent fascist regimes that needed the cooperation of existing professions and institutions.
A summary, in a few pages, of the founding and accomplishments of dozens of national institutions is, quite obviously, a stylization. But it brings two matters to the fore. First, the wage and rights protections developed by labor courts are largely absent from the New Deal labor policy regime. Second, labor courts were a means of addressing precisely the problems that reformers understood to be urgent for American law and policy at the end of World War I: the lack of a reliable mechanism to resolve major industrial disputes without strikes and disruptions, and archaic law that treated workers unfairly and provided no straightforward means of incorporating unions into the institutional order.
1.1.2 America’s Missing Labor Courts: Two Incomplete Explanations
The worldwide diffusion of judicial industrial relations models by the 1930s makes it puzzling that the United States made no significant trial of some labor court model as its own labor policy regime took more definite shape during the interwar period. Labor court models were certainly familiar to policymakers and intellectuals at the time. The New Zealand model had been prominent in the United States since around 1900, when William Demerast Lloyd extolled New Zealand as a country without strikes, and future People’s Party leader Conrad Reno founded the League for Industrial Courts to advocate American adoption of the model.Footnote 16 Australian Court of Conciliation and Arbitration Judge Henry Bournes Higgins was intellectually and personally well known to leading American legal and social reformers, and his “basic wage” concept was much admired.Footnote 17 Specialized courts also enjoyed a measure of favor in the 1920s: At this time, women’s courts, juvenile courts, and domestic relations courts were spreading through American cities, and there existed several specialized federal courts for handling economic matters, such as the Commerce Court, Tax Court, Court of Claims, Courts of Customs Appeals, and Court for China.Footnote 18 Specialized courts also held some attraction for the legal profession, which had enjoyed little success in capturing the new work generated by the early twentieth-century growth in American administration.Footnote 19
To the degree that scholars have regarded the absence of labor courts as a matter requiring at least some explanation, they have pointed to familiar institutional factors often invoked to make sense of the distinctive features of American law and social policy. However, only a modest look at comparative and historical evidence is required to show that these factors, while certainly relevant, are not at all complete explanations for the absence of labor courts in the United States.
1.1.2.1 Incomplete Explanation 1: Labor Union Hostility
The American labor movement evolved under unfavorable legal conditions. The legal definition and classification of unions was an unresolved question at the end of World War I, and neither the right to organize nor to act collectively was well established. Judicial repression was frequent. Courts constrained labor by the application of pre-industrial common law doctrines, as well as by the distinctive American use of judicial injunctions against strikes and other collective behavior. The American labor movement developed a strong commitment to “voluntarism” – that is, a preference for government abstention from industrial relations, with particular skepticism about the involvement of the judiciary.Footnote 20 Ross’ history makes the broad suggestion, arising from this voluntarist impulse, that union hostility may explain the absence of labor courts.Footnote 21 But this is contradicted by important comparative and American evidence.
Comparatively, labor courts had been created in other countries over the objections of labor movements that were far more economically powerful and politically integrated than American labor. This was so, for instance, in Australia and Sweden.Footnote 22 That those courts proved to be successful and long-lived is a testament to the flexibility of the design, as well as to the success of industrial jurists in rendering decisions that could gradually earn the confidence of labor.
Turning to the United States, it may be stressed that although voluntarism remained a broad preference in American labor through the 1920s, concern about industrial relations policy at that time focused heavily on two key industries, coal and railroads, where disputes were common and disruptions had pervasive effects on economic life. In these industries, labor showed a greater pragmatic openness to cooperation with government. The unions that actually ran trains – the operating brotherhoods – had successfully pressed the federal government to give them a number of specific protections in the Adamson Act during the Wilson Administration in 1916, and railroad unions generally showed a willingness to place their claims before government bodies. Sailors had likewise sought stronger government involvement and protection. Under the leadership of John L. Lewis, the United Mine Workers (UMW) had been willing to accept government awards and showed a growing interest in relying on government help in securing large, enforceable working agreements.Footnote 23 The relationship between government and transportation and mining unions around 1920 was, to be sure, extremely guarded and uneasy. But the views of many labor leaders of the moment stopped far short of pure voluntarism. Thus, labor opposition is an incomplete explanation for the absence of labor courts, given that American labor would surely not have been strong enough to bar their creation by a sufficiently determined lawmaking coalition, and many unions would likely have been prepared to see what gains they could win from a specialized court system. The KCIR experience itself shows this: Although the court attracted celebrated opposition from the Kansas district of the UMW, most of the KCIR’s important cases were in fact voluntarily initiated by labor unions in railroads, skilled trades, public utilities, and meatpacking.
1.1.2.2 Incomplete Explanation 2: Conservative Judicial Hostility
A second explanation offered for the absence of labor courts in the United States is the purported hostility of the regular judiciary, particularly the US Supreme Court.Footnote 24 This view arises from a misunderstanding of specific decisions, especially those about the KCIR itself, as well as an insufficiently clear retrospective distinction between the Court’s views about particular economic interventions and the generally anti-regulatory temper of the Taft Court. These issues will be explored in depth in Chapters 7 and 8 of this book. But the notion can be baldly dismissed now: The Supreme Court did not rule that it was impermissible for government to resolve industrial disputes by compulsory methods. In the 1920s, it was in fact understood that the cases that dealt major political reversals to the KCIR clearly implied that states could impose binding terms in certain industries, and that the federal government could do so across many industries.Footnote 25
Further, the Taft Court’s thinking about the government’s role in the economy is easily misunderstood, because it rested on distinctions that many scholars considered dubious at the time, and that appear profoundly illogical a century later.Footnote 26 Quite simply, the Court did not think about government intervention in the economy as a continuum along which more intrusive policies might face greater skepticism. The Supreme Court was very dubious of policies that fixed minimums or maximums on prices, wages, or rates. But much more direct interventions by government might be considered entirely unproblematic. For instance, North Dakota’s Nonpartisan League government built a set of institutions – state-run mills and financial institutions – that amounted to virtual socialization of the economy.Footnote 27 The Supreme Court unanimously upheld the constitutionality of this scheme.Footnote 28 The Supreme Court held that the KCIR could not raise wages in a small meatpacking plant. But when the KCIR effectively commandeered all the state’s mills and grain elevators, the millers did not even attempt to mount a legal challenge, though they complained bitterly about the KCIR’s intrusion.
Though explanations for the absence of labor courts in the United States are presented in passing by excellent scholars, there has evidently been no study directly concerned with explaining why the country did not make use of labor court designs during the interwar period when they were spreading throughout the world. The national political, legal, and intellectual debate about the KCIR provides this explanation – and along the way, helps to explain how the United States developed workable labor policy that lacked the material and rights protections labor courts tended to elaborate.
1.2 The Historical Problem: How Did the United States Fail to Develop a Labor Policy in the Early 1920s?
The significance of the KCIR owes a great deal to its precise historical context. Its creation was a self-conscious provocation in a national debate about the proper course of labor policy, which was occurring at what both contemporaries and later scholars recognized as the opening of a new era of government intervention in American economic life. The end of World War I, and the expiration of war-duration contracts in America’s major industries, made 1919 a year of strikes and inflation. The most pressing problem of transition – the return of the railroad industry to private control – was unresolved at the start of 1920. The working resolution to that problem, the Transportation Act, was in Skowronek’s words nothing less than “a new order in the relations between state and society in industrial America.”Footnote 29 Yet the Transportation Act, though opening an epoch, was to be short-lived, merely papering over, in one troubled industry, the great gap in the center of American government’s otherwise strong and growing control over economic life: its archaic, incoherent labor law and badly underdeveloped labor policy.
A reasonably complete policy regime, of course, was not in place until the 1930s: The Norris-LaGuardia Act, Social Security Act (SSA), Fair Labor Standards Act (FLSA), and National Labor Relations Act (NLRA), in aggregate, provided imperfect but workable, enduring solutions to the basic legal and policy concerns about workers, singly and collectively. These solutions were arrived at without providing national government any direct powers to fix the material terms of employment relationships, and created a robust system of collective bargaining without categorically recognizing any collective, expressive rights for workers – an approach that has long been recognized as a singular, distinctively American design.
The New Deal arrangements were a delayed solution to a problem that appeared both well-defined and soluble in 1920. This section, which presents the key aspects of the historical context in which the KCIR created interest and controversy, shows that labor law and policy was a serious, salient problem in 1920, that the United States had the institutional capacity to carry out major reform, and that there was an ideologically broad consensus about what acceptable solutions would look like. Nationally, the early 1920s were an era of forceful economic intervention, but little tangible progress was made on labor matters. Some reasons for the futile efforts of the early 1920s have long been recognized. The judiciary, despite or perhaps because of efforts carried out in better faith than is now remembered, moved the law farther from doctrinal positions about labor that would have been either politically acceptable or logically tenable. Similarly, the latter years of the Wilson Administration, and the succeeding Harding Administration, were a period of bad presidential leadership, as well as years of opportunistic anti-union behavior by employers. Another consideration, which is made clearer by the history of the KCIR, is that there existed too-numerous conceptions of labor policy design that were plausibly constitutional and approximately concordant with the era’s ideological consensus. Policy ideas and political actors were not well-aligned at this moment; it is in the debates of the early 1920s that the new alignments that would be decisive by the mid-1930s began to take definite shape.
1.2.1 The American Labor Problem circa 1920
The preceding summary of experiences with labor courts argued that industrializing polities, one way or another, needed to create institutions that could supersede or circumvent maladaptive legal conceptions of the individual in working life. Through labor courts, semi-compulsory investigative models, or political accommodation of private ordering, the rest of the common law world had gone quite some way in solving this problem by 1920.Footnote 30 The United States had not. Legally, the individual employment relationship retained or had only lately shed a number of feudal characteristics.Footnote 31 Workers’ efforts to forge a new, collective legal relationship with employers were positively frustrated by the continued application of common law conspiracy doctrines, as well as the distinctively American use of the judicial injunction.Footnote 32 This problem was deepened by judges’ inability to coherently define what a union was in the eyes of the law and Congressional inability to supply a definition by statute. The confused status of unions is not precisely the same as judicial repression, for an important ruling such as the Coronado Coal case might be friendly in the case at hand, but confusing to doctrine. Similarly, Congressional exemption of unions from anti-trust law in the Clayton Act, though much desired by organized labor, also served to muddle the status and classification of unions.Footnote 33
The retrogressive or simply confused law of labor sat alongside a remarkably weak, ineffective body of national labor policy. In the early twentieth century, national involvement in labor matters often took the form of commissions that assembled impressive intellectual talent and evidence but yielded no definite results. The 1919 failure of President Wilson’s first Industrial Conference, and the practical irrelevance of his second Industrial Conference in 1920, followed the paths laid down by the 1902 United States Industrial Commission, and the 1915 Commission on Industrial Relations.Footnote 34 Factional division in Congress largely prevented the passage of labor legislation.Footnote 35 What did pass was invariably flimsy, industry-specific, or short-lived. At the state level, reformers had elaborated the premises of a more complete labor policy that combined protective and social legislation with conciliatory, expert government intervention.Footnote 36 These practices were particularly associated with Wisconsin, where labor-friendly economists played a central role in state policy and administration.Footnote 37 But it was only in Wisconsin, and perhaps New York state, where the foundations for a complete policy had been laid down. Policy ideas circulated across the states freely but singly, with uneven uptake and implementation of widely varying quality. Workers’ compensation systems were perhaps the lone nearly universal success achieved in the states by 1920.
1.2.2 The Tractability of the Labor Problem in 1920
Labor was the greatest gap in the economic policy of a national government that was, by 1920, institutionally strong enough to sustain any design that could win political acceptance. Further, there was a major recent success to draw upon. Following American entry into World War I, the National War Labor Board (NWLB) was created with the mandate to prevent disruptive disputes in industries key to mobilization. The NWLB achieved this, in part, by important concessions to labor: an eight-hour day in war industries, as well as the right to join a union and collectively bargain, a guarantee of a living wage, and equal pay for equal work.Footnote 38 Labor historian Leon Fink calls the NWLB’s model “the nearest thing the U.S. ever got … to the institutionalization of labor unionism within a politically circumscribed industrial order.”Footnote 39
The NWLB certainly intended its work to be the prelude to a new order. Its principles had been conceived as “precedents to outlast the war.”Footnote 40 And, at the war’s end, both NWLB Co-Chair William Howard Taft and American Federation of Labor (AFL) President Samuel Gompers publicly affirmed these principles as the best basis for peacetime labor policy.Footnote 41 The wartime experience was also a demonstration that the national government had the capacity to “govern working conditions in American industries.”Footnote 42 Although the authority of the bodies empowered to do so was fixed to the duration of the war and a term of unwinding in peace, it was an important proof that strong national involvement could exist within the traditions of voluntarism and federalism in American public life.Footnote 43
The legal, fiscal, and institutional basis for an expanded national labor policy certainly existed. As scholars like Prasad and Sanders show, the United States had what was, comparatively, a notably strong regulatory regime, albeit one oriented toward farmer and consumer interests.Footnote 44 Similarly, Novak shows that the American state had grown quite strong by the beginning of the interwar period, and that the reformers who had made it strong saw, through public utility and public interest concepts, clear legal means of making it stronger still.Footnote 45 The national government had a secure fiscal capacity through the 1913 ratification of the Sixteenth Amendment, authorizing a permanent federal income tax. And although the 1920s are often caricatured as an era of laissez-faire, the political appetite for economic intervention was high. The epoch-making Transportation Act was followed, in the next three years, by a great range of activity: legislation regulating packinghouses and stockyards, as well as the futures market; federal investigation and prosecution of collusion and price fixing through business associations; expanded federal financing programs for farmers; intervention and planning to manage unemployment created by the business cycle; the Sheppard-Towner Act, a first trial of the delegated welfare state model that came to define American social policy; the first major investment in a federal highway network; and major subsidy and investment in merchant shipping.Footnote 46 This is a fairly impressive list, but there are no labor policies on it.
1.2.3 Visions of Labor Policy in 1920: Ideological Consensus and Design Disagreement
The lack of major labor policymaking in the early 1920s belies the existence at this time of a fairly broad consensus about what such policy ought to look like: It would preserve a recognizably capitalist economy, improve the economic circumstances and security of workers, and discourage the articulation of social class in political life. This view held from mainstream parts of the labor movement like the AFL to many fairly conservative Republicans. Many of the dominant figures of the Harding and Coolidge Administrations were deeply suspicious of big business, and Taft’s experience on the NWLB had increased his understanding and sympathy for the lot of workers.Footnote 47 Herbert Hoover made remarkably frank claims for the right of workers to a fair share of the fruit of American industry.Footnote 48 However, several basic designs were compatible with this ideological outlook. Each had important supporters. The debate about labor policy, then, was less about basic social and economic realities, and more about policy design and the proper role of the government. At least four prominent, distinct visions of industrial relations had currency in the early 1920s, and appeared to represent plausible directions of institutional development.
A first vision of industrial relations, probably enjoying the widest political currency in the early 1920s, contemplated an active but generally conciliatory role for government. Forms of American administrative involvement in industrial and labor issues up to that time were concordant with this view: Bodies nearly always used “tripartite” designs in which labor, capital, and the public had comparable or precisely equal representation. The 1920 report of President Wilson’s Second Industrial Conference, composed by noted academics and men of affairs, gave a systematic statement of this outlook, urging the creation of a permanent government structure of conciliation as the basis of American industrial relations.Footnote 49 This approach rested upon a belief that government publicity of the facts of industrial problems and disputes would be effective in fairly resolving them. This conception of publicity was particularly associated with William Lyon MacKenzie King, an era-defining Canadian politician who spent the war in the United States as the head of the Rockefeller Foundation’s industrial relations division.Footnote 50 The efficacy of publicity was a widely-subscribed article of liberal faith.
The track record of this approach had been undistinguished. But through the 1920s, the active, conciliatory approach was most strongly associated with Herbert Hoover, who offered influential statements of its premises, and was to prove, by far, its most effective practitioner.Footnote 51 During his ascent from the Commerce Department to the White House, Hoover greatly expanded the role for technical experts in important discussions of labor and economic policy.Footnote 52 His broad credibility with organized labor and even the most intransigent employers enabled him to use informal methods of conciliation to make progress on significant problems.Footnote 53 As Hoover’s role broadened over the decade, the use of this approach also expanded, gradually moving from specific matters of labor policy to a general model of governance grounded in informal conference and modest planning.Footnote 54
A second prominent vision was the elaboration of a peaceable industrial order with little active government involvement. The United Kingdom furnished an important international example. In the United States, the garment industry had developed a distinctive model for private order: Enormous collective agreements, covering the workers and major firms in the largest urban manufacturing centers, which guaranteed continuity of production and created private arbitration systems that could provide legally binding resolutions of disputes and grievances. Important progressives like Louis Brandeis and William Leiserson had major, direct involvements in the creation and development of this model.Footnote 55 This arbitration model provably worked at a large scale: Though geographically localized and industry specific, the agreements covered hundreds of thousands of workers. This model appealed to many employers in industries like soft coal mining and garment manufacturing because it could curb destructive competition on wages.Footnote 56
After World War I, visions of private order clustered about the nebulous concept of “industrial democracy.”Footnote 57 Some views were inspired by British workplace councils, some by “shop committee” plans, and some were largely notional.Footnote 58 There was considerable ambiguity about the end envisioned by proponents of industrial self-government, suggested by the quite various groups that supported it. The idea had some currency within organized labor, where it appeared to be a path to worker power. Yet similar models also enjoyed support within emerging technocratic worldviews that considered unions to be an intermediate form that would disappear under proper methods of management, and among employers that sought to use ostensibly participatory management methods to forestall genuine unionization.Footnote 59
The KCIR was to be the most notable American trial of a third policy vision, in which the government sought to secure steady economic output by imposing binding terms on both labor and capital. Although direct peacetime control of the terms of employment was untested in the United States in 1920, it reasonably appeared to build upon the many technical and legal successes of public utilities regulation, as well as the stable labor policy model in Australia and New Zealand. Positive support for this model was to be strongest among relatively conservative Republicans who felt that the tumultuous return to peacetime economic control showed a need for new kinds of government intervention. President Warren Harding strongly favored the KCIR as the basis for a national labor policy model. Influential lawyers like NAACP President Moorfield Storey and Columbia Law Professor Charles Thaddeus Terry threw aside long-held scruples to embrace it as a model for all the states. Some progressives like economist Rexford Tugwell, Veblen student and influential labor counselor Jett Lauck, and eminent legal reformer John Henry Wigmore also saw many virtues in it.
A fourth view was an industrial “pluralism” that would combine protective legislation with government respect for unions as a basis of a self-generated order, a conception strongly shaped by earlier experiences in Belgium and France.Footnote 60 This view was favored by John R. Commons and his economic circle, as well as legal thinkers who supported constitutionally grounded civil liberties protections and reforms to administrative and legal procedure. The practical interconnections between these groups were strong and enduring.Footnote 61 Although this position lacked an advocate in the federal government with the power of Harding or Hoover, it was the basis of labor policy reform in many of the most forward-looking states. And this view was closely associated with an increasingly coherent, successful new structure of policy advocacy centering upon organizations like the American Association for Labor Legislation (AALL), the American Civil Liberties Union (ACLU), the National Civic Federation (NCF), and the National Consumers League (NCL).
These policy designs, of course, were not mutually exclusive. The other common law polities blended approaches by creating institutional backstops for industrial relations models that had routine success with voluntary or conciliatory arrangements. And readers may recognize, in the fourth vision, the greater part of the labor policy regime of the 1930s: the Norris–LaGuardia Act, which curbed the use of injunctions; the Social Security Act (SSA) and Fair Labor Standards Act (FLSA), which provided for income in retirement or in the case of disability, and set minimums of pay and acceptably safe, decent conditions of work; and the National Labor Relations Act (NLRA), which created a framework for promoting collective bargaining that reduced to the absolute minimum government intrusion into negotiation or the internal governance of businesses or labor unions.
And this is the point: The important ideas of this enduring model, as well as its immediate predecessor, the National Industrial Recovery Act (NIRA), were already fairly well-developed in 1920. But so were many other ideas. Given that the Supreme Court’s truly anti-regulatory turn did not begin until 1923, and intensified only in the latter part of the decade, all of these visions were plausibly consonant with the constitution. A great impediment to major labor policy reform was, precisely, that too many ideas enjoyed support, and in no case was there a sufficiently clear alignment between policy design preferences and party, factional, or basic ideological leanings; to some degree, the field needed to be cleared for any one design to prevail.
1.3 Plan of the Book
The book will show that the creation and failure of the KCIR was consequential: It contributed to the clarification and simplification of the confused situation obtaining in 1920. Its legal, political, and intellectual defeat extinguished interest in labor courts in the United States. The doctrinal residuum of that defeat had consequences for organized labor and greatly curtailed the power of state governments to regulate new industries or respond to the Great Depression. In reacting strongly against the premises of the KCIR, liberals who had taken an active interest in international labor policy models cut the United States off from institutional innovations in other polities during the 1920s, helping turn the country toward the unique model elaborated in the 1930s. The exposition proceeds in two parts. Part I examines the KCIR in the context of Kansas: How its design extended patterns of institutional and legal development distinctive to Kansas, what its key supporters believed, how those beliefs shaped the KCIR’s design, and how the KCIR did its work – and failed to do it well. Part II turns to the KCIR in a national context; the only context in which it becomes wholly intelligible. Successive chapters describe the strong media and policymaker interest in the KCIR’s model, sharply divided intellectual reception within economics and the law, and the legal and policy consequences of the several US Supreme Court cases about the KCIR and its enabling legislation, the Kansas Industrial Court Act (KICA).
Parts of the argument rely upon archival materials.Footnote 62 However, much of the evidence for the book’s major claim that contention over the KCIR shaped the course of labor policy must, by definition, be public. This evidence includes national newspapers and magazine articles, editorials and opinion pieces, and scholarly studies in law and the social sciences; speeches, hearings, and debates; organizational minutes and proceedings; and a great volume of judicial opinions.
In design, this book is a conventionally executed case study of a single state policy; the policy simply proved to be far more complex and important than could have been suspected at the outset. The research approximately followed the approach to state policy case studies described by Basseches, Campbell, and Schoenfeld, proceeding from the public media account, to the government records, to the backstage study of political and legal insiders.Footnote 63 The media record of the KCIR is substantial, including hundreds of articles in The New York Times (and ten or so front-page stories), hundreds more in other national newspapers, dozens of stories and editorials in magazines of informed opinion like The New Republic, The Survey, and The Nation, dozens more in general interest magazines, and academic articles in most of the era’s prominent legal and economic journals. This record shows that the KCIR commanded a great deal of national interest, and made many people remarkably angry. All previous scholarship on the KCIR has noted, and usually focuses upon, organized labor opposition. It was the similarly intense hostility of prominent conservative voices, like the editors of The Wall Street Journal, anti-union lawyer Walter Gordon Merritt, former Attorney General and Taft ally George Wickersham, and prominent liberals, like Felix Frankfurter and the many students of John R. Commons, which suggested the wider practical and intellectual stakes in the KCIR. The government record plainly disclosed that the handful of Kansas politicians and judges who created and operated the KCIR had been far more concerned with making precisely this sort of provocative intervention than they were with fashioning a reasonably functional labor court.
The backstage story, of the kind a contemporary case study might build from interviews and observation, was accessible in the enormous body of archival material preserved from this period. The archival material is most useful in understanding the unusually intense and protracted litigation over the KCIR. Private correspondence disclosed, as published material and rulings did not, that the state, its challengers, and Supreme Court Justices all saw the KCIR as a singular chance to test and settle uncertain matters of law.
1.3.1 Part I: The KCIR in Kansas
Chapter 2 describes the pattern of settlement and state development in Kansas in the nineteenth century and its effects on progressive era reform in Kansas and the personal character of the era’s leading figures. The atypically violent colonization of Kansas, and the unusually coercive model of reform emerging out of it, created the political and legal conditions in which the creation of the KCIR won ready – indeed, enthusiastic – acceptance. Territorial Kansas was beset by violence that blurred together material self-interest and political allegiance; violence that greatly intensified during the Civil War. The state’s constitutional design, adopted to secure a working peace among contending factional and regional interests, imposed enduring fiscal constraints that prevented the state from raising the revenue needed to effectively govern newly settled territory or promote homesteading. In the latter part of the nineteenth century, Kansans had the highest levels of private indebtedness in the United States. The state’s weak, perennially underfinanced government struggled to suppress mob violence and violent political contention over control of government itself.
At the opening of the progressive era, Kansas was institutionally underdeveloped, but had evolved a legal and political culture extremely favorable to government compulsion to protect the public interest. Settlers with significant personal experience of upheaval dominated the state’s politics; in the first decades of the twentieth century, the state employed an inexpert, administratively crude, but legally assertive model for regulating economic and personal conduct. Kansas was an early or first adopter of many forms of economic regulation, which were virtually always found to be constitutional in the state courts, but frequently challenged and reversed by the US Supreme Court. On average, the US Supreme Court overturned a Kansas Supreme Court decision annually from 1900 until 1919.
Chapter 3 describes the creation of the KCIR, and the political worldview it advanced. At the end of 1919, during a nationwide coal strike, Governor Henry J. Allen commandeered the state’s strip mines and reopened them with a volunteer labor force. Allen called a special legislative session for January 1920, and in the final weeks of the year, Allen and future KCIR Presiding Judge William L. Huggins conferred extensively with the state’s politicians, lawyers, and judges on the proposed KICA.
Outside the state, the passage of the KICA was regarded at the time and afterward as a hasty overreaction to the coal strike. Drawing from a range of archival material, the chapter forcefully rebuts this view. The initial drafting and revision of the KICA systematically advanced two goals. First, design choices maximized the KCIR’s powers of compulsion and assured that its power over capital was comparable to its power over labor. Second, the design sought to maximize its chances of withstanding adverse federal court rulings. That administrative experts were not consulted in the drafting, nor economists given an important place in the KCIR’s wage-setting, was a deliberate choice consistent with the state’s decades-old model of reform.
The KCIR’s design embodied three political beliefs that Allen, Huggins, and their advisors shared. First, a sufficiently strong, well-developed government had a positive obligation to suppress industrial conflict, which was in essence a form of extralegal violence: The KCIR was an extension of the state’s successful suppression of frontier and mob violence. Second, they believed the common law was socially evolutionary. Courts were superior to new public administrative models as a means of confronting the social problem of industrial conflict. Third, they believed that an individualized model of civil justice was the best means of adjudicating labor matters. Labor unions had an undoubted right to exist as a form of self-defense against capitalist predation where government was too weak to intervene. A strong court system that provided workers speedy, cost-free access to justice would supersede the conditions of industrial anarchy in which strikes were justified. Such a system could correct the well-known failings of existing civil courts by abolishing all court costs and fees and providing workers with state-employed counsel.
Chapter 4 turns to the KCIR at work, showing that a range of internal and external factors contributed to its practical failure. Judge Huggins’ early decisions strongly defended the social rights of workers, asserted that worker interests should take priority over firm profitability, and proclaimed generous ideas of fair and equal wages. Some of these rulings were the first endorsements of these principles by an American judge, and others had never before been endorsed anywhere. The progressive thrust of these rulings was blunted by the manner in which they were written. Huggins, a self-taught lawyer of restrained temperament, did little to explain his bold conclusions, and nothing to connect his own ideas to the emerging outlook of legal realism. Further, the KCIR’s staff consisted almost entirely of lawyers and courtroom personnel; it had no economists or accountants. Thus, KCIR wage awards relied upon guesswork. Materially, these awards regularly fell short of the court’s own definition of a living wage. Further, the KCIR refused to take jurisdiction in cases where workers had already gone on strike.
Governor Allen’s frequent interference in the work of the KCIR undermined the credibility that Huggins’ early rulings might have secured for it. The use of the criminal provisions of the KICA also created escalating contention. Through strikes and refusal to participate in cases, the coal miners of District 14 of the United Mine Workers conducted a peaceful, disciplined campaign of civil disobedience to the KCIR. The national railroad shop workers strike in summer 1922 was met in Kansas by repression. Allen’s efforts to break the railroad strike spurred the Ku Klux Klan to make its first major public demonstrations in Kansas. In the 1922 electoral campaign, in which the KCIR was the defining political issue and was closely coupled to Allen’s efforts to suppress the Klan, Democrat Jonathan Davis narrowly won the gubernatorial election. Although he was unable to secure the abolition of the KCIR, Davis skillfully subverted it, bringing its practical work to an end in 1923. Overall, Part I shows that the creation of the KCIR was concordant with what was by 1920 a long-standing and nationally recognized approach to heavy-handed economic policy in Kansas. Its design flowed from a coherent, illiberal political philosophy. Many of its practical failures are traceable to these deliberate choices about policy design, or political strategy consistent with Allen and Huggins’ respective views about the supremacy of state authority.
1.3.2 Part II: The KCIR in the World
Part II turns to the national context of the KCIR. Chapter 5 describes the KCIR’s rapid ascent to national visibility in mainstream media and politics. Allen and Huggins, from the start, advocated the creation of a federal industrial court and the adoption of the KCIR model in other states. Its designers had no interest in waiting for results before promoting it, nor did its key promoters ever represent its practical results very accurately. Indeed, Governor Allen had begun to tout the KCIR as a “substitute for strikes” even before a full draft of the KICA had been written. Publicly, Allen was the source of a constant flow of speeches and articles. Privately, he and William Allen White actively promoted the KCIR model as part of the Republican platform for 1920; a Republican National Committee (RNC) survey of party insiders showed strong support for the KCIR’s model in government employment and public utilities. As its visibility grew in early 1920, the KCIR began to attract prominent critics like Herbert Hoover and Samuel Gompers. Allen, who was one of the era’s most talented publicists, used this opposition to stoke further interest, most notably in his Carnegie Hall debate with Gompers, which was national front-page news. In late 1920, Judge Huggins’ rulings began to attract significant attention in their own right. By the time of major strikes in 1922, the KCIR was firmly established as one of a handful of basic labor policy models receiving serious consideration in the United States.
Policymakers immediately took a strong interest in the KCIR. In spring 1920, it became the focus of US Senate hearings. Governor Allen gave lengthy addresses to the New York and New Jersey legislatures and Illinois and Nebraska constitutional conventions, all of which were considering the model; most states ultimately considered such legislation. However, for distinct reasons, the policy environment disfavored emulation in other states, or adaptation of the model federally. At the state level, a shortage of policy information, and unresolved questions about the KCIR’s constitutionality, stayed the action of sympathetic officials in states where labor might have been too weak to prevent adoption. In New York, organized labor’s considerable mobilized strength defeated a major push for industrial court legislation.
At the federal level, Harding’s weak leadership and sharp factional divisions within the Republican Party precluded the Administration from developing any coherent labor policy. In successive yearly messages to Congress, Harding called for the creation of a federal industrial court. At the same time, however, Secretary Hoover and Attorney General Daugherty were pursuing their own visions of labor policy. The leader of the ascendant Farm Bloc, Iowa Senator William Kenyon, was also Chairman of the Senate Labor and Education Committee; he answered Harding’s call for industrial court legislation by publicly criticizing the KCIR and introducing a different proposal of his own.
Given that political circumstances impeded immediate diffusion of the KCIR model, its survival depended on the views of policy intellectuals. Chapter 6 examines the divided views about the KCIR in law and economics. In legal scholarship, there were well-developed progressive and conservative legal arguments for and against the KCIR. The most visible position was that of social evolutionists like John Henry Wigmore, Yale law professor William Reynolds Vance, an early leader in the realist movement, and Harvard labor law professor Francis Bowes Sayre. Influenced by the work of notable Australian industrial jurists W. Jethro Brown and Henry Bournes Higgins, these scholars greeted the KCIR, and the Kansas Supreme Court’s forceful vindication of it, with great enthusiasm. Legal thinkers aligned with the established model of protective labor legislation, such as Felix Frankfurter, or the emerging civil libertarian view embodied in the newly founded ACLU, such as Ernst Freund, were quiet but effective opponents of the KCIR model. Progressive economists also split. The many students of John R. Commons, prominently placed in the academy and the era’s key networks of policy advocacy, forcefully criticized it. A more heterogeneous group, including Rexford Tugwell and W. Jett Lauck, took a more sympathetic view, and praised some of the key decisions. However, Allen and Huggins were publicly critical of the economists who showed the greatest sympathy for the KCIR.
Key proponents of these intellectual views also occupied important roles in the organized legal profession, which was then seeking to resolve several internal conflicts: disharmony between the legal academy and the practicing bar; elite resistance to the democratization of the profession’s key organizations; and tensions between lawyers’ broadly conservative political views, and the prospect for social legislation to open new professional territory that lawyers might occupy. The KCIR, which became a focus for these larger conflicts, was a visible and contentious topic in legal organizations in the early 1920s. The National Conference of Commissioners of Uniform State Laws (NCCUSL), with the prompting of Moorfield Storey and the support of Wigmore and former Conference president Charles Thaddeus Terry, considered endorsing the KICA, in virtually unaltered form, as a model for state industrial relations policy. Such an endorsement could have been consequential, as the Conference was “the main axis of the social life of the American Bar Association,” and an influential and trusted supplier of bills.Footnote 64 An enormous majority of Commissioners evidently favored endorsing the KICA; key unelected leaders in the organization succeeded in opposing it. The KICA crystallized long-latent disagreements in the Conference about the relationship between “uniformity” and “reform.”
The values conflict was resolved by systematic changes in procedure that effectively precluded the Conference from having any involvement in social legislation. In addition, the NCCUSL aligned itself with the American Law Institute (ALI). The ALI, a powerful force for legal standardization that took shape in the early 1920s, coalesced around a working coalition of progressive legal academics and elite corporate practitioners; its long-serving founding president was conservative KCIR critic George Wickersham. The ALI, at its founding, was expressly prohibited from engaging in any official discussion of industrial tribunals, a gag rule criticized by some economists, but defended by legal academics as a compromise necessary for the Institute to function.
This pattern of intellectual reception, in which labor courts became an unwelcome topic in the legal profession, and potentially friendly economists were actively discouraged by Kansas officials, serves in tandem with political and legal reversals to account for the rapid disappearance of American interest in labor courts. Because the KCIR brought forward the cleavages within both progressive and conservative visions of law and policy, there was no organizational setting where influential supporters did not encounter comparably influential detractors.
Chapter 7 turns to the United States Supreme Court, which issued five opinions about the KICA between 1922 and 1926. The repressive, criminal features of the KICA were repeatedly held to be constitutional. And although later discussions of the KCIR often contend that the Supreme Court held compulsory arbitration to be unconstitutional, in the 1920s it was clearly understood that the Court’s rulings, though a practical blow to the KCIR, had by implication approved of compulsory arbitration in various industries.
This litigation was important because the highly principled (or obstinate) behavior of the KCIR’s judges and their organized labor opponents created singularly simple, clear controversies over two of the era’s important open problems in economic and labor law: when the public’s interest justified economic regulation, and whether the constitution guaranteed a right to strike. Taft and his conservative counsellor, Justice Willis Van Devanter, seized upon the Wolff Packing Company case to present a typology of industries and the sorts of regulation proper to them. The ideas Taft put forward in this opinion were the “linchpin of the substantive due process jurisprudence,” which would be central to the sharply anti-regulatory rulings of the Court later in the decade.Footnote 65 And Brandeis’ ruling in the Dorchy case – a pure test of the right to strike – flatly denied that the Fourteenth Amendment absolutely protected strikes, even if they were peaceful and orderly; this ruling became “the leading case on the constitutional right to strike.”Footnote 66
Chapter 8 traces out the afterlife of the KCIR. The 1923 Wolff ruling practically ended both the work of the KCIR and most active American interest in the industrial court model. Yet reaction against the KCIR’s underlying premises was part of American development toward the New Deal’s distinctive labor policy arrangements. First, the defeat of the KCIR was an early rejection of fascism, as the conjunction between the enactment of Italy’s KICA-informed Labor Charter and American debate leading up to the enactment of the Railway Labor Act (RLA) shows. Inasmuch as compulsion in industrial disputes was always an important early step toward consolidation of power in the fascist and authoritarian corporatist polities of the era, the rejection of this model in the United States was significant.
Soon after the passage of the RLA, the Wolff case came to be cited with increasing frequency in courts. Though it had won the approval of Brandeis when decided, the conceptual failings of Wolff’s typology – which categorically rejected the evolutionary view of law undergirding the KCIR and other common law labor courts – became plainer as the Great Depression opened. The development of Wolff’s reasoning was central to rulings that effectively ended a generation of state-led economic policy innovation. Brandeis’ famous celebration of states as “laboratories of democracy” was in fact a eulogy for a closing era, which he offered in a dissent unsuccessfully pleading for Wolff to be overturned.
After the passage of the NLRA, Brandeis’ Dorchy ruling was revived by state and federal judges seeking to impose a strictly limited view of labor’s expressive rights. Chief among them was Felix Frankfurter. Dorchy’s afterlife illustrates both that labor-friendly legal and economic intellectuals of the 1920s had a very narrow vision of labor’s place in the American institutional order, and that this vision did not expand with time or these reformers’ eventual dominance in policymaking. The position was not solely an effort to shield labor from a hostile judicial climate, but marked a deeper aversion to basing labor policy directly in courts and rights, as the KCIR had done.
The view implied by the rejection of the three tenets of the KCIR’s founders is precisely the view institutionalized in American labor policy. Each of these rejected views was elaborated systematically in other polities in the 1920s: repressive industrial courts spread with fascism; social evolutionist views continued to animate common law labor courts; and labor courts with general jurisdiction, open to and protecting the rights of individual workers, developed throughout Latin America. It was the liberals who had long participated in cross-national dialogues about labor policy who, in reacting against the KCIR, began to turn the United States away from international labor policy models. The KCIR debate shows how the leading thinkers were in many ways locking into New Deal liberalism, just as many other defining features of the modern public order were assuming definite shape in the early 1920s.
The book then turns from the 1920s to the present. The Afterword shows that organized labor today faces a recurrence of the problem it faced in 1920: Profoundly unhelpful federal labor law that is impeding organizing efforts under economic conditions and a climate of public opinion that are in other respects extraordinarily favorable for union growth. The Roberts Court is, indeed, returning important features of labor and employment law to the conditions of the later Taft Court. There is a specific lesson to learn from the early 1920s: Remarkable opportunities to protect and promote the right to organize are available in the states even when the federal environment is unfavorable. Scholars today – like the many practically influential social scientific and legal scholars of the 1920s – can tangibly advance these efforts by immersing themselves in the present affairs of any specific state. The Supreme Court’s doctrines on unions, contracts, access to civil courts, and the work of federal administrative agencies are not returning the law to an earlier period by chance; the Court bases this change on its own, conservative reading of the past. The 1920s were in fact a period of remarkable change, and astounding variety in policy design and public administrative form. There is a pressing need for historically informed scholarship to intervene and recover the promise of this often misunderstood moment.
