Date of Award

1989

Document Type

Dissertation

Degree Name

Doctor of Philosophy (PhD)

First Advisor

William F. Campbell

Abstract

The purpose of this dissertation is to analyze the development of the doctrine of "conspiracies in restraint of trade" in the labor market by means of an application of two models of economic regulation. As heuristic devices, these models are utilized to explain the formation of English and American labor law in three different eras. The market failure model posits that labor market regulators seek to remedy unequal bargaining power and asymmetric information so as to achieve economic efficiency. This model's 'liberty and virtue' component emphasizes the normative end of character formation. According to the interest group model, organized labor and other interest groups demand various forms of regulation. This theory's rent-seeking component highlights the role of the legislature and judiciary as self-interested suppliers of regulation. The approach to labor market regulation taken by the common-law jurist and legislator Sir Edward Coke in sixteenth- and seventeenth-century England is best understood in terms of the liberty and virtue component. Coke validated regulation consistent with the avowed ends of guilds to promote quality workmanship and moral virtue, yet also broadened the right to pursue a trade by invalidating guild ordinances which were arbitrary restraints of trade. This distinction shapes the origins of the economic conspiracy doctrine. In nineteenth-century England, labor legislation first included and subsequently exempted unions from the criminal and civil aspects of common law conspiracy. This change, which reflects in part the influence of Adam Smith's arguments that both apprenticeship and combination laws were ineffectual, is best attributed to elements in the liberty and virtue component and the interest group model. The latter theory best explains the acquisition by organized labor of legal immunities in early twentieth-century British legislation. The liberty and virtue component best describes the approach taken by nineteenth-century and twentieth-century American law towards the right of labor to organize and the 'substantive due process' Supreme Court rulings that formed the boundaries of the legitimate use of police powers in regulating labor markets. The interest group model best explains the New Deal legislation which conferred upon unions special privileges and immunities in the law.

Pages

402

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