Abstract
American labor history sometimes presents difficulties in finding a starting point. For some, it is the 1877 railroad strikes. Others would tag the Haymarket riots in 1886 or perhaps the Pullman strikes of 1894. Some historians would wait until the twentieth century, looking toward the 1911 Triangle Shirtwaist Factory fire, the 1935 Wagner Act, or the Battle of the River Rouge in 1937. Jeffrey Kahana places the origins of labor law and labor history years before any of those events—during the period from the signing of the Constitution until shortly before the Civil War.
In The Unfolding of American Labor Law, Kahana raises the interesting argument that the theory of independence, as articulated in the Declaration, influenced the early American interpretation of traditional master servant law. In particular, he argues that the feudal aspects of this relationship, which was still part of the English common law at the time, were soon overturned in a series of decisions that granted workers much more flexibility in the relationship with their employers.
Kahana highlights the influence of Massachusetts Chief Justice Lemuel Shaw, who served almost thirty years in that position. In Commonwealth v. Hunt, Shaw affirmed, “resulting public benefits [were] derived from collective action and associations of all types” (p. 291). However, a case decided later that same year of 1842 would seem to argue the opposite. In that case, Farwell v. Boston and Worcester Railroad, the judge established what was to later be called the “fellow servant” rule, making it difficult for workers to secure compensation from employers for on-the-job injuries (p. 250). These two cases, decided almost contemporaneously, demonstrate that during this time the law was still evolving. It was nearly a century later when the first key labor legislation was enacted.
While Kahana has made an interesting argument that the law of 1850 had greatly changed from that of 1790, the idea of a robust labor movement would have been as foreign to the 1850 bench and governing class as it would have been in 1790. This book is more designed for the legal community than for labor practitioners. As a companion volume to Philip Dray’s There Is Power in a Union, Kahana’s book could provide an interesting and in-depth look at the early legal issues of U.S. labor history, but it is too technical to be a labor history text that is useful for the general public.