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Reason, Contract, and Law in Labor Relations, 68 Harvard Law Review 999 (1955)


HOLMES did not have much occasion as judge to deal with the organization of labor and collective bargaining. But when he did, he stated what he called "the less popular view of the law." To Holmes, our system of free enterprise and democratic government required the state, subject to the limitations of public order, to permit workers to organize and to extend their organization for the purpose of strengthening their bargaining position in the struggle for a better share in return for their services. Their shares were to be determined by the parties to the struggle, not by the state; and the state should not interfere so as to make the struggle unequal. Thus, when dealing with picketing to enforce a wage demand, he said in 1896: One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way.

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