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66 Tex. L. Rev. 919 (1987-1988)
Issue 5

handle is hein.journals/tlr66 and id is 951 raw text is: Texas Law Review
Volume 66,      Number 5,       April 1988
Labor Conspiracies in American Law, 1880-1930
Herbert Hovenkamp*
An intransigent judicial hostility toward labor activities marked the formative
years of the American labor movement. Professor Hovenkamp reexamines the legal
doctrines ofAmerican courts at the turn of the century and concludes that their hostil-
ity sprang from changing views of political economy that regarded collusion, either
among businesses or among laborers, as injurious to the public interest. Professor
Hovenkamp first studies the origins of the conspiracy theory of labor organization,
which condemned a simple agreement among workers to strike for higher wages. He
analyzes the antagonistic attitude toward labor organizations that turn-of-the-century
treatise writers adopted-many urged courts to embrace a conspiracy theory of labor
activity. Professor Hovenkamp then traces the emergence of the economic theory of
competition, which at last established a theoretical basis for the conspiracy theory. Fi-
nally, he relates the unions' peculiar vulnerability to legal attack that occurred once
the Sherman Act brought the conspiracy theory into the court&
I. Introduction
One of the most successful union-busting devices in nineteenth cen-
tury America was the law of labor combinations, which was employed
countless times to restrain labor strikes, picketing, boycotts, and de-
mands for closed shops. The law held that although labor organizing
was not illegal per se, many union activities were illegal under the com-
mon law of trade restraints.' After 1890 courts declared many organized
labor activities unlawful under section one of the Sherman Act,2 which
condemned contracts, combinations, or conspiracies in restraint of
trade.3 In addition, courts condemned some railroad industry strikes
under the Interstate Commerce Act of 1887,4 and a few courts enjoined
strikes directly under the commerce clause through the assertion of the
federal government's power to keep interstate commerce flowing
* Professor of Law, University of Iowa College of Law. B.A. 1969, Calvin College; M.A.
1971, Ph.D. 1976, J.D. 1978, The University of Texas.
1. See infra subpart IV(A).
2. See 15 U.S.C. § 1 (1982).
3. See infra text accompanying notes 219-55.
4. Ch. 104, 24 Stat. 379 (codified as amended in scattered sections of 49 U.S.C.); see infra text
accompanying notes 205-18.

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