American Labor and American Law: Exceptionalism and its Politics in the Decline of the American Labor Movement

Abstract

Since Werner Sombart visited the United States at the beginning of the 20th century, scholars and activists have debated whether the American labor movement is “exceptionally” weak and conservative, and why. While some have accepted Exceptionalism and attributed it to the conservative values of American workers, others have attributed it instead to the power of business and the repressive posture of the American government. This article argues that the American legal tradition contributed to “exceptionalism” by privileging individual rights over collective action, and by limiting the power of organizations, including governments as well as unions, over individual choice. While this individualist bias was modified in the 1930s, the Supreme Court quickly restored the individual bias in American labor law, leading to the collapse of unions in the later 20th century.