Labor Conspiracies in American Law, 1880-1930

48 Pages Posted: 10 Dec 2021

See all articles by Herbert Hovenkamp

Herbert Hovenkamp

University of Pennsylvania Carey Law School; University of Pennsylvania - The Wharton School

Date Written: 1988


The formative years of the American labor movement were marked by intransigent judicial hostility toward organized labor activities. This legacy piece examines the legal doctrines of American courts at the turn of the century and concludes that their hostility sprang from changing views of political economy that regarded collusion, either among businesses or among laborers, as injurious to the public interest. Historically the common law conspiracy theory of labor organization would condemn a simple agreement among workers to strike for higher wages, just as it condemned a horizontal price fixing conspiracy in the product market. These developments in economic theory which occurred simultaneously with the passage of the Sherman Act, led early interpreters of that statute to embrace an aggressively anti-union approach. Indeed, the Sherman Act went further. At common law wage-fixing agreements were unenforceable but they were typically not challengeable by third parties or the government. As a result, labor unions fared more poorly under the Sherman Act than they had previously. These results were further exacerbated by a conclusion that was popular among Gilded Age economists – that product market cartels were prompted by efficiency concerns while agreements to fix wages did not create such possibilities.

Keywords: labor, conspiracies, antitrust, sherman Act

Suggested Citation

Hovenkamp, Herbert, Labor Conspiracies in American Law, 1880-1930 (1988). Texas Law Review, Vol. 66, No. 5, 1988, Available at SSRN:

Herbert Hovenkamp (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States
319-512-9579 (Phone)

University of Pennsylvania - The Wharton School ( email )

3641 Locust Walk
Philadelphia, PA 19104-6365
United States

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