To shed light on the legal debate over new forms of workplace collaboration, this Article reexamines the origins of the National Labor Relations Act of 1935. Professor Barenberg concludes that the Wagner Act scheme was profoundly cooperationist, not adversarial as is conventionally assumed. Revisionist historiography shows that, contrary to the claims of public choice theorists, Senator Wagner's network of political entrepreneurs was the decisive force in the conception and enactment of the new labor policy, amidst interest group paralysis and popular unrest. Drawing on original archival materials and oral histories, Professor Barenberg reconstructs the progressive ideology of Wagner and his circle. That elite network understood, consonant with recent critical theories, that legal symbols could shape worker consciousness. Their goal, however, was not to pacify but rather to galvanize workers to seek the collective empowerment that alone could secure democratic consent and cooperation in both the enterprise and in the polity in the era of mass production. Wagner rejected the leading interwar model of workplace cooperation – company unionism – because he believed it could not combine high-trust cooperation with protection of workers against instrumental and symbolic "domination" by employers. Unlike recent legal-economic theorists who presume a world of self-interested, rational behavior, Wagner understood that workplace hierarchies generate cultural contests over trust and resentment. Wagner's model is more akin to current theories that maintain that human interests and perceptions – including dispositions toward trusting cooperation – are constituted intersubjectively and self-reflexively.
The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation,
Harv. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/934