William W. Fisher III 46 questions of framework and structure within which substantive conflict would take place.” Peller then steps back (or chronologically forward) and reveals a fundamental defect in the Legal Process argument. According to these theorists, the reason why courts should defer to legislatures when controversies cannot be resolved by neutral principles is that legislatures are democratically elected and thus their determinations reflect the will of the people. That rationale logically requires a court reviewing a legislature’s resolution of a particular controversy to take seriously a claim advanced by the losing party that some social or political practice prevents the legislature frombeing democratic. In the 1970s, legal theorists (like John Elv and Jesse Choper) pursuing analogous inquiries did just that, but none of the Legal Process theorists of the 1950s was willing to do so. In Peller’s view, the reason is that they were all white males from the Northeast intellectual elite who, because of their class position, sawthe world as essentially just and fair. The net effect of this overtly judgmental reading is compelling - and lends credence to the Textualists’ advocacy of such a deliberately compromised, anachronistic stance. A recent article by Mark Barenberg on the origins of the Wagner Act (the foundational statute of modern American labor law) combines explication and evaluation in a similarly illuminating fashion.The article contains a detailed investigation of the ideas of Robert Wagner and his contemporaries concerning the ways that law could and should respond to labor strife. Barenberg carefully maps the economic and ideological setting of Wagner’s venture - including mass labor unrest, various other forms of political disruption, and the configuration of power in Congress. Against that background, he tries to make sense of Wagner’s outlook, contending that it interwove several strands of progressive thought, including the (anti-)epistemology of popularized Deweyan pragmatism, the vision of law and society propounded by Legal Realism, the social psychology of communitarian progressives, and the political economy of second-generation institutionalist economists. Finally, he shows how the content of the Wagner Act issued from those commitments. All of this Pocock and Skinner would find familiar and commendable. The article does not stop there, however. Barenberg goes on to ask of Wagner questions that a committed contextualist historian would condemn as hopelessly anachronistic: Are all “cooperationist innovations” bad? Is self-interested rationalism or symbolic reconstructionism a better methodology for understanding labor relations? Barenberg acknowledges that Wagner did not address such issues in terms we would find familiar. More importantly, he concedes that the context in which Wagner was working was substantially different fromour own. The principal challenges Wagner faced were pulling the country out of the Great Depression and reconstituting “a democratic, capitalist order during the class-fractured Mark Barenberg, “The Political Economy of the Wagner Act: Power, Symbol, and Workplace Cooperation,” Harvard LawReview 106 (1993): 1381.
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