“‘A Sweat Shop of the Whole Nation’: The Fair Labor Standard Act and the Failure of Regulatory Unionism”

Abstract

The history of the American welfare state is often recounted as a long line of missed opportunities. As the story goes, the absence of a labor party, or American exceptionalism, helped create a weak welfare state. Initially, some political scientists, labor economists, and historians attributed American exceptionalism to the pure and simple unionism of the American Federation of Labor (AFL). In the 1990s, however, a number of political scientists and legal historians revised their understanding of American exceptionalism. Given the legal bias within the common law that benefited individuals rather than groups, conservative state and federal court judges pursued peremptory legal strategies, like the labor injunction, that shaped the course of the American labor movement. It was repressive state action, the revisionists argue, that explains why organized labor, and the unions that came to dominate the movement, pursued a less expansive vision of trade unionism and the American state.