PRELIMINARY DRAFT: DO NOT QUOTE OR DISTRIBUTE WITHOUT PERMISSION OF AUTHOR
Political Entrepreneurship in the Progressive Era Regulation of Women’s Labor
Jayme Lemke*
ABSTRACT: Many of the advancements in women’s rights that took place over the course of the 19th
century can be characterized as expansions in freedom of contract. However, by the end of the 19th
century, legislative and popular initiatives designed to improve women’s status had shifted from
emphasizing freedom and independence to emphasizing a more interventionist set of programs. In this
paper, I employ the theory of political entrepreneurship to explore how an aspiring political
entrepreneur’s choice of strategies is affected by both their own past actions and environmental factors
outside of their control. In the historical case at hand, I find that both Progressive social reformers and
labor unions adapt towards the use of formal legal strategies as the expected payoffs associated with
these strategies increase relative to the payoffs of alternative reform strategies.
KEYWORDS: political entrepreneurship; social change; institutional economics; women’s rights; labor
law; Progressive era; dynamics of intervention
*
Senior Fellow, F. A. Hayek Program for Advanced Study in Philosophy, Politics, and Economics and Senior Research
Fellow, Mercatus Center at George Mason University; Fairfax, VA 22030. Email: [email protected]. Thank
you to the students and faculty of the Free Market Institute at Texas Tech University for comments on an earlier
version of this paper.
I. Introduction
Many of the advancements in women’s rights that took place over the course of the 19th century
can be characterized as expansions in freedom of contract. In particular, expansions in married women’s
property rights and the recognition of women’s independent legal status were tools that enabled
women to exercise greater choice over the arrangements they were permitted to make with others
regarding the employment of their labor efforts and the disposition of the fruits of those efforts. These
changes had been sought by women’s rights advocates and were generally perceived as desirable
improvements for women in terms of equality, autonomy, and well-being (Lemke 2016; Salmon 1986;
Warbasse 1987; Zaher 2002). However, by the end of the 19th century, legislative and popular initiatives
designed to improve women’s status had shifted from emphasizing freedom and independence to
emphasizing a more protectionist set of programs.
There were many alternative strategies that could have been taken by groups interested in
seeing the women of the late 19th and early 20th century work better jobs, in better conditions, for
better pay. They could have worked to break down barriers to women’s education. They could have
strengthened the position of working women in negotiations with employers by facilitating collective
bargaining. They could have started their own businesses in which they hired women to work at wages
and in conditions they deemed more appropriate. And in some times and places, these strategies were
adopted. However, as the 19th century drew to a close, reform-minded individuals increasingly turned
their attention to legislative solutions to the problems that were perceived as plaguing working women.
The most significant of these were maximum hours laws, minimum wage legislation, and restrictions on
occupational choice. The shifting paradigm is perhaps best illustrated by the decision of the United
States Supreme Court in Muller vs. Oregon, which upheld the state of Oregon’s decision to limit the
working hours of a female employee in a laundry:
Though limitations upon personal and contractual rights may be removed by legislation, there is
that in [women’s] disposition and habits of life which will operate against a full assertion of
2
those rights… she is properly placed in a class by herself, and legislation designed for her
protection may be sustained, even when like legislation is not necessary for men and could not
be sustained (Muller vs. Oregon (208 U.S. 412, 28 S. Ct. 324, 1908).
By 1920, this sentiment had been embraced so completely that there were maximum hours laws in
effect in 43 states, laws prohibiting women from working at night in 20 states, and minimum wages for
women established in 13 states (Landes 1980; Woloch 2015: 87-93).
In this paper, I will address the dynamics of the process through which legislative action in the
name of women’s well-being came to restrict rather than expand women’s economic rights and
freedom to contract. To do so, I begin with Israel Kirzner’s (1973) insight that entrepreneurship is a
universal feature of action, and that entrepreneurs will become aware of new opportunities to advance
their goals as the constraints in their environment change. This description applies to all varieties of
entrepreneurs, including the social reformers who defended and advocated for laws designed to protect
women from work. Like all entrepreneurially minded actors, any group that holds the objective of
generating some kind of social change will be constantly evaluating and re-evaluating their strategies as
they act and then interpret the responses those actions invoke in others in their environment. Every
attempt to accomplish an objective will invoke these responses and therefore potentially alter the
perceived value of pursuing any given reform strategy.
Employing the Kirznerian entrepreneur in a non-market context requires modification of the
concept to an environment in which resources and permission to act are not always obtained based on
the mutual satisfaction of wants. Once entrepreneurship becomes directed not towards market activity,
but instead at the realm of social or political action, the question of when this entrepreneurship will be
productive and when it will be destructive of social welfare becomes critical (Baumol 1996; Boettke and
Piano 2016; Martin 2011). Despite this serious complication, the concept of the entrepreneur has been
successfully applied in a variety of non-market environments (Chamlee-Wright and Storr 2010; Shockley
and Frank 2011; Storr, Haeffele-Balch, and Grube 2015). The most significant challenge with respect to
3
application to a particular case is specifying the cost structure within which the political entrepreneur is
acting in sufficient detail for the form of the institutional change and the strategies of the reformers to
be understood as rational, ends-directed choices.
This paper proceeds as follows. In Section II, I discuss the theory of political entrepreneurship,
with particular attention to the issue of how the entrepreneurial reformer will adapt strategy over time.
In Section III, I introduce in greater detail the history of the protective laws enacted in the United States.
In Sections IV and V, respectively, I apply the logic of the political entrepreneurship to two particularly
salient reform-minded groups active in this historical case: the consumers’ leagues and the labor unions,
both of which adapted into increasingly legislation-focused strategies over time. Section VI concludes
with a discussion of what is learned in this case through use of the construct of political
entrepreneurship.
II. Political Entrepreneurship
In her 1965 dissertation, Elinor Ostrom “raises the question of whether there is a comparable
function performed by those who undertake to provide public goods and services in the public sector,
which might appropriately be characterized as public entrepreneurship” (Ostrom 1965, p. 4-5). Her
answer is that there is such a corollary agent, but that the political institutions they operate within alter
the feasible set of goals and strategies for the attainment of those goals relative to the entrepreneur in
the private sector. These alterations are in the form of both constraints, such as constitutional and
regulatory limits on authority, and additional powers, such as the right to exercise eminent domain
(Ostrom 1965, p. 7-9). Richard Wagner (1966, p. 165) employs similar concept in his early discussion of a
“political entrepreneur” who “in his search for profit opportunities” brings about political outcomes that
cannot be easily explained as the outcome of lobbying and other direct rent-seeking activities.
4
Shockley et al. (2006) survey the variety of modes of analysis and conceptions of
entrepreneurship that have been used in the analysis of political entrepreneurship since its early
explication in the 1960s. The concept of an entrepreneur who brings about social change has also been
employed outside a narrow political framework. Douglass North describes “ideological entrepreneurs”
who invest in trying to affect attitudes, and thereby institutions, because either their preferences or the
relative prices they face have changed in such a way that a shift towards an alternative institutional
arrangement would pay off for them (North 1981; Storr 2009). Theories of political, institutional, or
ideological entrepreneurship have been explored in cases as diverse as the establishment of property
rights in the American West (Anderson and Hill 2002); the attitudes towards and legal treatment of
surrogate motherhood (Kuchař 2015); and cross-country studies of economic growth (Sobel 2008).
The first step in building up a theory of political entrepreneurship for purposes of analyzing the
historical case at hand is recognizing the ubiquity of entrepreneurial activity. Israel Kirzner identifies an
“entrepreneurial element in human decision-making…that is responsible for our understanding of
human action as active, creative, and human rather than as passive, automatic, and mechanical”
(Kirzner 1973, p. 35; emphasis original). This entrepreneurial element is what enables people to discover
and take advantage of hitherto unexploited profit opportunities. The fact that individuals continually
identify opportunities for mutual benefit in the world around them is not an “implausible series of
happy accidents,” but rather the result of the fact that individuals are “at all times spontaneously on the
lookout for hitherto unnoticed features of the environment (present or future) which may inspire new
activity” (Kirzner 1997, p. 72). In other words, the fact that people are constantly alert to changes in the
costs and benefits associated with particular courses of action means that as the environment changes
around them, they will identify newly superior strategies to accomplish their goals and adapt their
behavior in response.
5
Although Kirzner usually applies this theory of entrepreneurship to the realm of market
production and exchange, there is no reason why its scope should be so delimited. Public choice
economics is a discipline that has had great success in taking analytical tools developed for application
to markets as traditionally conceived and adapting them for application to political markets. The transfer
is imperfect, particularly to the extent that welfare properties are tied to the functioning of markets. In
the political arena, individuals are less likely to be asked to consent to a particular action, even when it
may affect them greatly. Action in political contexts is therefore more likely to impose externalities in
excess of the private benefits created than in a situation in which all significantly affected parties must
give their consent, such as in a standard market exchange (Buchanan and Tullock 1962). The basic
framework of viewing human activity as entrepreneurially minded is, however, applicable to all spheres
of action (Chamlee-Wright and Storr 2010, p. 151). Whether or not the activity they are engaged in is
commercial, individuals who identify opportunities to profit by changing existing rules or patterns of
resource use are engaged in entrepreneurial activity. This observation itself says nothing about the
secondary consequences or externalities that may be created through the identification of these new
opportunities. This is consistent with Kirzner’s observation that new discoveries may come about purely
as a response to opportunities created through the regulatory process that would not have existed at all
independent of the process of regulation. From the perspective of the individuals involved, this process
of regulation and subsequent discovery may very well be “wholly superfluous” with respect to their
initial state (Kirzner 1979 [1985], p. 144-45).
This Kirznerian framework is particularly important for the analysis of rent-seeking and social
reform undertaken in this paper because “once we become sensitive to the decision-makers’ alertness
to new possibly worthwhile ends and newly available means, it may be possible to explain the pattern of
change in an individuals’ decisions as the outcome of a learning process generated by the unfolding
experience of the decisions’ themselves” (Kirzner 1973, p. 36). The unique emphasis that this
6
perspective on entrepreneurship brings is on how the goals, strategies, and likelihood of success of
social reformers will change as environmental circumstances and prevailing ideologies change, including
when those changes are brought about by the past actions of the reformers themselves. It is this last
insight that is of particular importance for the historical episode addressed in this paper. Every time a
reform-affected group acts, whether they achieve their goal or not, the relative payoffs associated with
alternative strategies have the potential to change. This leads to an adaptation of strategy and a new
series of entrepreneurial actions.
The basic logic of entrepreneurship in a political environment is as follows. First, the political
entrepreneur evaluates alternative strategies for achieving their goal and selects a strategy or mix of
strategies to pursue according to what they think will have the greatest payoff in the current
institutional environment. The range of strategies they consider could include any combination of
private, public, or cooperative activities that appears to the reformer to be within the feasible set.
Second, the political entrepreneur acts. As one would-be change agent acts, others will be
simultaneously pursuing related goals. These related goals may be either similar or contradictory. This
simultaneity complicates the ability of reform groups to make long term plans—they are trying to effect
change in a world that is itself continually changing, and in unpredictable ways. Third, the political
entrepreneurs’ actions invoke a set of responses, both from actors the political entrepreneur was trying
to influence and potentially from individuals she never had any intention of influencing. These responses
could take the form of either changes in behavior, changes in rules, or changes in beliefs and
expectations. As behavior, rules, and expectations change, the payoffs associated with the reform
strategies already considered may change, and the political entrepreneur may identify new strategies or
intermediate goals to consider. This prompts a re-evaluation of alternative strategies and starts the
cycle over again. The loop of action, reaction, and evaluation is visualized in Figure 1.
7
[Insert Figure 1]
Another way to think about this feedback loop is as a variant of the dynamics of
interventionism. The core insight of the dynamics of interventionism is that intervention begets
intervention. Any imposition into privately ordered activity will generate unintended consequences
which will require the intervening party to further intervene if they wish to achieve the goal of their
original intervention (Mises [1929] 1996, p. 7-12). As each subsequent intervention also generates its
own unintended consequences, the cycle of intervention, error, and attempted correction continues.
Adam Martin describes this as a “vicious cycle” in contrast to the “virtuous cycle” that can perpetuate
when the innovation of more efficient methods of satisfying the same objectives free up resources that
can be invested in further innovation (Martin 2011). Depending on their goals and the institutional
environment they are operating within, political entrepreneurs have the potential to feed into either
type of system.
In the context of the labor reform movement discussed in this paper, a key question is when the
evaluation or re-evaluation of strategy in response to past actions and reactions will lead a social
reformer to shift in to the more interventionist strategy of advocating for and defending legal
restrictions on women’s work that came increasingly to be favored by a particular set of political
entrepreneurs. William Baumol’s (1990) distinction between productive, unproductive, and destructive
entrepreneurship is useful here. He posits that entrepreneurial effort will be directed towards one of
these types of entrepreneurship according to the relative payoffs associated with each. If an
entrepreneur expects unproductive entrepreneurship to generate greater returns than productive
entrepreneurship, they will direct their efforts towards unproductive entrepreneurship, and so on
through the possible variations.
8
In sum, whether or not a political entrepreneur adopts a partiular strategy will depend upon the
relative payoffs of alternative strategies as they are perceived by the entrepreneur at the moment of
choice. The payoffs of the alternative strategies will, in turn, be in part a function of past decisions made
by the political entrepreneur or other agents acting within the same space. In the remainder of this
paper, I take the logic of political entrepreneurship as outlined here and apply it to the particular case of
the boom in the protective laws designed to regulate women’s labor that occurred in the period from
roughly 1895 to 1920.
III. Protectionist Legislation
Limitations on women’s employment contracts were advocated for a variety of reasons and
took on a similarly wide variety of forms. So-called protective labor legislation, already pervasive
throughout much of Europe by the 1890s, was slower to gain acceptance in the United States (Woloch
2015: 6). Once introduced into the American legal system, however, diffusion was rapid.
The most common early protective laws dictated a maximum number of hours that women
could work in a day or in a week. Commonly referred to as eight-hour or ten-hour laws, these limits
were most often enacted and upheld when advocates could draw a persuasive connection to health or
safety. The first laws establishing maximum hours specifically for women were enacted in the 1870s.
These laws were most common in states with major textile industries and usually applied to both
women and children. By the 1920s, maximum hours laws were in effect in forty-three states, including
the District of Columbia and Puerto Rico, and had been extended to cover a wider range of occupations
(McCammon 1995; Woloch 2015: 87-93). There is agreement in the labor economics literature that the
passage of these hours laws was followed by a decrease in hours worked, but disagreement as to
whether it was the disemployment effect of the law or the broader slate of attitudes and activities of
the labor activists that caused this decrease (Landes 1980; Goldin 1988). There is also some evidence
9
that industries that employed significant numbers of women, such as the textile industry, may have
changed the way they operate in response to the passage of these laws. A report by former National
Women’s Trade Union League member Helen Marot found that in the aftermath of New York’s
maximum hours law, “wages are reduced or efficiency methods are introduced or new machinery is
introduced or some change is made in the management of the shop” (quoted in Woloch 2015: 24). To
the extent maximum hours legislation made it profitable for mill owners to shift towards more capital
intensive forms of production, protective laws may have had a permanent effect on the nature of the
manufacturing industry.
States also regulated women’s working hours by prohibiting women from working in particular
occupations overnight, often defined as between 10 p.m. and 6 a.m. Some reformers, including
Josephine Goldmark, viewed night work laws as a way to make it easier to enforce maximum-hours laws
by completely closing the factory floor to women for one-third of the day. By 1920, night work laws
were in place in twelve states (Woloch 2015: 93). Night work laws were particularly problematic for
working women. Being barred from work after 10 p.m. made it difficult for women to procure relatively
safe, higher-paying jobs in printing or as waitresses (Woloch 2015: 94). Further, multiple studies,
including by the New York Factory Investigating Commission and the National Consumers’ League, found
that women who worked at night often did so in order to be able to take care of young children during
the day (Woloch 2015: 94-95). Further, in addition to the responsibilities of childcare, Chicago
settlement worker Mary McDowell found that many women took on night work because their husbands
were deceased, absent, unemployed, or did not make enough to maintain the household. McDowell
suggested that it would be better for these women if they were fired so they wouldn’t be tempted to
neglect their responsibilities to their households (Woloch 2015: 95).
Another common form of protective labor law was to explicitly bar women from involvement in
occupations deemed dangerous to either physical or moral health. Banning women from working in
10
mines was a common early version of this type of protective law. During and in the aftermath of World
War I, barriers to women’s entry were expanded to include a wider range of occupations. Some of these
laws were general prohibitions. For example, Kansas, Michigan, and Washington excluded women from
dangerous occupations writ large (Woloch 2015: 8-9). Other states were more specific. In 1919, Ohio
barred women from working as
crossing watchmen, section hands, express drivers, molders, bellhops, taxi drivers…jitney
drivers, and gas or electric meter readers; from work in blast furnaces or smelters, mines and
quarries (except in offices), shoeshine parlors, bowling alleys, pool rooms, barrooms, saloons,
and delivery services (wagons or automobiles); from operating freight or baggage elevators;
from baggage or freight handling and “trucking of any kind”; and from jobs that involved
frequent or repeated lifting of weights over twenty-five pounds (Woloch 2015: 111).
Finally, minimum wage laws were another type of protective labor legislation that began to
emerge during the Progressive Era in connection with concerns about the wellbeing of working women.
A minimum wage for woman workers became an official goal of the National Consumers’ League in
1909-10 and of the National Women’s Trade Union League in 1911. The first minimum wage law was
passed in Massachusetts in 1912 (Zimmerman 1991). The following year, minimum wages were enacted
in California, Oregon, Washington, Colorado, Utah, Nebraska, Minnesota, and Wisconsin (Woloch 2015:
104). By 1920, thirteen states had enacted minimum wage legislation, but only for the women working
in those states (Landes 1980). Although women still had a relatively small role in the wage economy at
the beginning of the 20th century, a 1911 study conducted on behalf of the United States Bureau of
Labor found that many workers only employed women at all because they would accept jobs at lower
wages (Dalrymple 1987: 43). Consequently, the enactment of minimum wage likely contributed to the
disemployment effect of Progressive labor reforms.
In the remainder of this paper, I use the logic of political entrepreneurship as outlined in Section
II to analyze the strategies two critical groups of political entrepreneurs—Progressive social reformers
and labor union organizers—and how those strategies changed over time as they worked to change the
rules governing women’s work.
11
IV. The Social Reformers
The well-being of working women was a pet cause of many social reform groups by the 1890s. If
reform strategies are adopted by groups according to relative payoffs as perceived by the reformers,
then we should expect to see these social reform groups adopt different strategies as the relative
payoffs of the alternatives available to them change. As the payoff to a particular strategy increases
relative to other imaginable alternatives, social reformers should be observed to shift resources towards
those behaviors.
Who were these social reformers? Nancy Woloch (2015: 6-7) describes early advocates of labor
reform in the United States as “Well off and well educated… Middle class or upper middle class, they
saw themselves as interlocutors between social classes and as mediators between business and
labor…Concerned though judgmental, they often sought to make other Americans more like
themselves.”1 Some prominent advocates of protective legislation for female workers were involved in
the Progressive era transmission of socialist ideology from Europe to the United States (Rodgers 1998).
They had a vision of a broader socialist program that could correct harmful power imbalances between
the working and capitalist classes. Most reformers, however, had an apparently more modest goal in
mind: to “help women workers overcome disadvantages in the workplace and society” under the
reasoning that working women were physically weaker, more likely to work low paying jobs, and
exhausted from the dual burden of wage labor and domestic responsibility (Woloch 2015: 21).
Consumers’ leagues, organizations dedicated to improving working conditions for retail and
factory workers, were some of the first social reform groups to come out in support of protective
1
This facet of the progressive vision often disregarded the working conditions of black women workers. Black
women were more likely to work in agriculture and domestic service than in occupations such as retail and factory
work that were targeted for reform; this occupation segregation persisted at least in part because of white factory
workers striking to limit hiring of black workers (Woloch 2015: 18-19).
12
legislation. The Consumers’ League of the City of New York, the first of these organizations, was founded
in 1890 by Josephine Shaw Lowell. Less than a decade later, in 1898, Lowell partnered with Jane Addams
to form the National Consumers’ League (NCL). By 1916, the NCL had sixteen thousand members across
forty-three states and affiliations with consumers’ leagues in France, Belgium, Germany, and Switzerland
(Woloch 2015: 14). The NCL still exists today as an organization dedicated to the belief that “the working
conditions we accept for our fellow citizens should be reflected by our purchases, and that consumers
should demand safety and reliability from the goods and services they buy” (“A Look Back”). This
contemporary statement is remarkably similar to how the NCL described its vision in 1901: “When there
are no more indifferent purchasers, the work of the League will be a perfect work” (quoted in Woloch
2015: 14).
In addition to being known for their later work advocating maximum hours and other protective
laws, the first strategies adopted by the consumers’ leagues were the creation of “white lists” of ethical
employers and “white labels” for mass produced products so that consumers could more easily identify
products being sold and produced in conditions considered to be acceptable by the reformers (Storrs
2000: 13-40). This is significant because many of the reformers’ initial activities were not interventionist
strategies that drew upon the authority of the legal system, but instead private activities designed to
increase the cost to employers of offering low wages or poor working conditions. Their engagement
with these types of alternatives demonstrates that social reformers were clearly aware of these nongovernmental alternatives and considered them within the feasible set. This raises the question of what
changed with respect to the perceived relative costs and benefits of these alternative strategies such
that social reformers seem to be compelled to shift their energy and resources towards state and
national legislation? To answer this question, I will in the remainder of this section consider the case of
Florence Kelley, an entrepreneurially alert social reformer and one of the most critical figures in the
13
transition to attempting to solve perceived problems in labor relations through appeal to legislative
solutions.
Florence Kelley and the National Consumers’ League
Florence Kelley, the first general secretary of the NCL, is credited with much of the
organization’s direction and success during its early years (Novkov 2001: 82). She was a well-off and
well-educated woman. After graduating from Cornell in 1882, Kelley moved to Switzerland, where she
studied law and government. It was there where she first encountered the ideals of socialism, partly
through the work of Friedrich Engels. After returning from Switzerland, Kelley moved to Hull House in
Chicago, a well-known “social settlement” founded in 1889 by Ellen Gates Starr and future founder of
the NCL, Jane Addams. While at Hull House, Kelley completed her law degree at Northwestern
University, acquiring legal expertise she would use to draft, advocate for, and defend a variety of
protective legislation throughout her career (Woloch 2015: 11-12). So not only did Kelley’s history
inform her commitment to socialist ideals, but her expertise in law made her more alert to potentially
fruitful legal strategies throughout her work as a reformer.
Although much of Kelley’s social advocacy would focus on women, she was first and foremost
concerned with giving workers an edge in the great class struggle. Her view was that “the inequality of
men among themselves is so frightful that to make each woman (rich or poor) merely equal to the men
of her family, or her class, is to leave the sum total of inequality now cursing society almost unchanged”
(quoted in Woloch 2015: 12). As such, the primary reason for Kelley’s initial advocacy of protective laws
for working women is probably that she viewed reform on behalf of women’s workers as an “entering
wedge”. Once the use of legislation for the benefit of workers was accepted, she believed, it would be
easier to use legislation for the benefit of all workers. This is an attitude she would hold throughout her
career as a reformer. In 1933, she wrote with respect to minimum wage legislation: “It is going to be
14
hard enough to get a law for women sustained... Until that is done, I think the inclusion of men in this
state legislation invites failure in the courts” (quoted in Zimmerman 1991: 199).
Legal precedent sent a clear message to social reformers about the ability of arguments for
labor reform based on gender to succeed where others had failed. Although states had been enacting
piecemeal protective acts for nearly fifty years by the time of Kelley’s leadership of the NCL, the
movement had never taken off in the way Kelley and other social reformers wanted. There were 34
challenges to protective labor legislation heard in either state or federal courts between 1873 and 1897.
Of these 34 cases, 25 addressed laws that applied to workers of both genders. Over two-thirds of these
laws were overturned when challenged in court. In contrast, of the 9 cases heard during this 24 year
period that addressed legislative acts or constitutional provisions that applied exclusively to female
workers, 78% were upheld (Novkov 2001: 43). These cases often were brought in challenge to state or
city level statutes that prohibited women from being paid to serve alcohol in a bar unless they were the
wife or daughter of the bar owner (Novkov 2001: 48-49). As such, they had extraordinarily little to do
with the kinds of issues regarding overwork, unsafe conditions, and the health of women and children
that were so critical in the minds of the social reformers. However, they did have a significant impact on
the social reform movement in that they clearly established the precedent that courts were more willing
to uphold protective regulation of women’s work than men’s work.
Despite these early indications, one of Kelley’s first experiences with an argument based on
gender distinction was a failure. In 1893, Kelley drafted a law for the state of Illinois that prohibited
women for working for longer than eight hours per day. The law had the support of the AFL, the Illinois
Women’s Alliance, and a number of other trade unions, and was successfully enacted (Woloch 2015: 8).
Two years later, the law was challenged in the case of Ritchie v. People (1895) by a group of employers
brought together by the Illinois Manufacturers’ Association to challenge for the right to contract with
their workers for working days of greater than eight hours. Some of the women in these businessmens’
15
employ testified to the fact that shorter working hours meant lower wages, which made it more difficult
for them to support themselves and their families (Woloch 2015: 39-40). The defense for Illinois, in
contrast, argued that
“…the injury to a girl or woman in her sexual function, the breaking down not only of her own
health and the shortening of her own life and productive power, but the injury to society in the
form of a physically and often mentally degenerate offspring, for whom society must afterward
care, resulting from such employment, are dangers which the state in the exercise of its police
powers should carefully guard against…” (quoted in Woloch 2015: 40-41).
After considering both arguments, the court found that the eight-hour law was not only
unconstitutional due to its violation of Fourteenth Amendment rights, but also inconsistent with a
number of recent expansions in the rights of the women of Illinois to freely contract (Woloch 2015: 4142) After the Illinois Supreme Court declared the protective law unconstitutional, Ritchie v. People
became commonly cited as precedent in future cases as a defense of freedom of contract in
employment (Novkov 2001: 48-49). Kelley viewed the decision as “sinister” and described the court’s
interpretations of the Fourteenth Amendment as “an insuperable obstacle to the protection of women
and children” (quoted in Woloch 2015: 5-6, 42).
This early failure was no doubt sharp in her mind ten years later when she and fellow NCL
member Josephine Goldmark brought together a team of lawyers and researchers to protect a ten-hour
law in Oregon against a challenge from laundry owner Curt Muller which went all the way to the U.S.
Supreme Court. Kelley’s and Goldmark’s involvement in Muller v. Oregon2 began when they visited Louis
Brandeis, Goldmark’s brother-in-law and a lawyer practicing out of Boston, to recruit him to defend the
State of Oregon (Woloch 2015: 55, 62; Dalrymple 1987: 141-142). Brandeis was an avowed progressive,
willing to work for free for a cause he believed to be in the public interest (Woloch 2015: 63). Kelley
used her legal background to aid Brandeis with the development of legal strategy, and Goldmark was
the “largely unacknowledged” co-author of the famous “Brandeis brief” (Novkov 2001: 82).
2
Muller v. Oregon 208 U.S. 412, 28 S. Ct. 324, 1908
16
All parties involved knew they were in need of a new strategy. Just three years earlier in 1905,
the Supreme Court had heard the case of Lochner v. New York, deciding that the employees of a bakery
had the right to determine their own work hours without interference. In their decision, the Supreme
Court had refused to accept arguments based on logic to prove the harms of overwork, such as those
that had been offered in the early 1895 case of Ritchie v. People (Dalrymple 1987: 143). So Brandeis and
Kelley decided that they would not use logic. Instead, they would throw out every piece of evidence
they could muster to try to demonstrate empirically that overwork was a significant harm to women,
and that the state was justified in protecting women from this harm. The result was the so-called
Brandeis brief. Created from research conducted and compiled by Josephine Goldmark, Pauline
Goldmark, Florence Kelley, and a team nine research assistants, the bulk of the brief was an exhaustive
treatise on the ill effects of overwork and the strength of the state’s interest in well-rested mothers who
could better care for their children (Woloch 2015: 64-67; Dalrymple 143-151). The summation of the
evidence and the reformers’ recommended legal interpretation was offered by Brandeis:
As healthy mothers are essential to vigorous offspring, the physical well-being of women is an
object of public interest. The regulation of her hours of labor falls within the police power of the
State, and a statute directed exclusively to such regulation does not conflict with the due
process or equal protection clauses of the Fourteenth Amendment (quoted in Lipschultz 2003:
72).
The combination of the decision to focus on women as an entering wedge, the evidence-based
argument presented by Brandeis, and some marginal but fortuitous changes in the composition of the
court resulted in the Justices of the U.S. Supreme Court unanimously upholding Oregon’s ten-hour law.
The decision was presented by Justice David J. Brewer, who accepted the argument in Brandeis’ brief
that to overwork women would be to cause a public harm and wrote the decision famously declaring
women “a class by herself” (Woloch 2015: 74-76). Brewer, who just 16 years earlier had written “The
paternal theory of government is to me odious,” defended his decision as having been “written with the
utmost respect for [women], by one who knows the blessings which come from the sex, and in the firm
17
belief that there was something in her place and work in life which justified the legislature in forbidding
her to contract for factory work beyond a limited time” (quoted in Woloch 2015: 74, 78).
Adaptation in Response to the Muller Decision
After the success of the reformers’ efforts in the Muller v. Oregon case, Kelley’s optimism about
the potential for bringing about meaningful reform through legislation was renewed. The NCL began to
advocate for a wider range of legal correctives (Novkov 2001: 80-81). Within seven years of the Muller
decision, the NCL and its local chapters had “succeeded in persuading” another twenty states to enact
maximum-hours law for women (Dalrymple 1987: 202). This is an example of the feedback that can
occur between reform and individuals’ expectations regarding the benefit of pursuing reform. When the
strategy of a gender-focused argument presented through an extensive, fact-based brief that focused on
harms to women and children proved successful beyond all expectations, rent-seeking strategies
presented themselves as more fruitful than ever before.
Kelley even had the chance to avenge her past defeat in Ritchie v. People (1895). A year after
the reformers’ victory in Oregon, W.E. Ritchie, the same businessman who had brought the suit that had
resulting in Illinois’ first maximum-hours law being overturned, once again brought suit to challenge a
ten-hour law enacted in 1909.3 This time, Josephine Goldmark and Louis Brandeis expanded on the
strategy they had adopted in Muller v. Oregon, producing a 600-page brief on the way women were
being damaged by factory working conditions. Their efforts contributed to the Illinois Supreme Court’s
decision to uphold the law in Ritchie v. Wayman (Woloch 2015: 88; Dalrymple 1987: 202-203). Like in
Muller, it was the argument about women’s unique disadvantages that swayed the Court in its decision:
“It is known to all men (and what we know as men we cannot profess to be ignorant of as judges) that
woman’s physical structure and the performance of her maternal functions place her at a great
3
Ritchie v. Wayman (1910)
18
disadvantage in the battle for life” (quoted in Woloch 2015: 88). The state of Illinois complete reversed
its position on women’s right to freely contract with employers in just 15 years, largely due to
adaptations of the reformers’ strategy in response to past actions and feedback.
After these successes, state level reform groups began to reach out to the NCL to request copies
of the brief that had successfully upheld a maximum-hours law (Dalrymple 1987: 203). Within the next
four years, the Brandeis brief strategy was used to defend the state against challenges to maximumhours laws in Virginia, Michigan, Louisiana, Ohio and Illinois (Dalrymple 1987: 203-04; Woloch 2015: 88).
The strategy continued to be used by others even after Brandeis was appointed to the U.S. Supreme
Court (Dalrymple 1987: 194-195). The Brandeis brief strategy was adapted by social reformers for other
uses as well. In 1923, when the Supreme Court heard the case of Adkins v. Children’s Hospital, an early
challenge to a minimum wage law, NCL’s legal team prepared a 1,138 page brief compiling any available
evidence they could on the dangers of low wages, again emphasizing women’s role as mothers: “The
dangers to the health of women from low wages… is handed down to succeeding generations” (quoted
in Woloch 2015: 114).
Further, the strategy used in Muller v. Oregon and its reception, now part of the reformers’
feasible set of alternative strategies, did not long remain confined to gender-specific legislation. The
legal literati recognized this right away. Of those articles written on the Muller decision between 1909
and 1916, four out of five argued that the legal case for protective laws was equally relevant to both
genders (Dalrymple 1987: 245-48). Then, within five years of the decision in Muller v. Oregon, which at
the time had been upheld based completely on a gendered argument, the Oregon Supreme Court
decided that regulation of hours was sufficiently legitimate that its use no longer need be limited to
protecting women. In 1913, Franklin O. Bunting, the owner of a mill in Lake County, Oregon, was found
guilty of employing George Hammersley to mill flour for longer than ten hours in a day without overtime
pay. In 1914, the Oregon Supreme Court upheld the conviction (Dalrymple 1987: 207-09). Bunting
19
continued to appeal, but in 1917 the case was upheld by the United States Supreme Court, in part due
to a 1,020 page brief presented by Harvard Law Professor Felix Frankfurter on behalf of the National
Consumers’ League that was modeled directly from the original Brandeis brief prepared for Muller v.
Oregon (Dalrymple 1987: 222-28, 240-244).
In sum, the feedback loop of evaluation, action, response, and then re-evaluation led the social
reformers to shift further in the direction of a gendered legal strategy. The entrepreneurial character of
human action meant that as the Brandeis strategy of making complex, harm-based arguments proved to
be successful, it was adopted for use more often and in a greater range of circumstances.
V. Labor Unions
Many of the earliest laws designed to protect workers were backed primarily by labor unions
that had decided for a variety of reasons that legislative solutions would be more likely to benefit their
particular population of workers than direct negotiation with employers, which was the preferred tactic
of many unions. If social reform strategies are adopted by groups according to relative payoffs as
perceived by the reformers, and if these payoffs change in response to both the actions of other
reformers and other more exogenous changes, then we should expect to see labor unions adopt
different strategies over time. Like with the social reformers, as the payoff to interventionist strategies
increases relative to other alternatives—the most obvious of which for unions is collective bargaining—
unions should be observed to shift resources towards lobbying for intervention.
The case of labor union involvement in regulation of women’s labor is complicated by the fact
that most labor unions disproportionately represented male workers. There were several reasons this
was the case. First, many women did not want to unionize. Gladys Boone, a historian of the Women’s
Trade Union League, described it as “quite common for girls to say they would rather die than suffer the
disgrace of joining a union” (quoted in Dalrymple 1987: 36-37). The most common reasons given for this
20
reluctance was the fact that union meetings traditionally took place in bars. Most working women in the
late 19th century were single, and some of them still lived with their parents or in lodging houses that
would not permit their meeting with men alone at night, even to discuss working conditions (Dalrymple
1987: 39-40). Some of their reluctance may also have been driven by unwillingness to associate with
immigrant populations (Dalrymple 1987: 37).
Second, even if women had been anxious to join unions, men were often reluctant to admit
them. Many prominent labor unions were formed by skilled craftsmen in trades which were primarily
male (Greene 1998). These unions supported protective legislation to minimize competition with male
workers and keep men’s wages high. Adolph Strasser, President of the International Cigar Makers Union
and one of the founders of the American Federation of Labor (AFL), put it simply:
We cannot drive the females out of the trade but we can restrict this daily quota of labor
through factory laws. No girls should be employed more than eight hours per day, all overwork
should be prohibited; while married women should be kept out of factories at least six weeks
before and six weeks after confinement (quoted in Dalrymple 1987: 31).
Competition from women was often perceived as particularly galling due to the prevalent attitude that
women worked for ‘pin money’ rather than to support families. This belief was false, as demonstrated
by the 1913 Report on the Condition of Women and Child Wage Earners in the United States, which
found that most women did work to support others (Dalrymple 1987: 21-22). However, this did not stop
reformers of all stripes from using some version of the argument that male workers were more
deserving of earning enough to support a family than women workers. Journalist and social reformer
Rheta Childe Dorr, an advocate for maximum-hours laws and improved working conditions for women,
described working women as “the white Chinaman of the industrial world. She wears a coiled-up queue,
and wherever she goes, she cheapens the worth of human labor” (quoted in Leonard 2016: 176). That
they had been brought in to replace male workers during past labor strikes did not add to the popularity
of working women (Dalrymple 1987: 19-23).
21
However, there were labor unions that did include female workers, and these unions faced the
choice between two primary strategies: independent negotiations directly with employers, or support
for legislatively enacted solutions through protective law. The American Federation of Labor is a
particularly interesting case of an organization that changed its attitude with respect to seeking rents
through the enactment of protective laws several times. In 1884, an AFL member defended collective
bargaining rights as more likely to be productive than legislation: “A united demand for a shorter
working day, backed by thorough organization will prove vastly more effective than the enactment of a
thousand laws depending for enforcement upon the pleasure of aspiring politicians or sycophantic
department officials” (quoted in Dalrymple 1987: 28). In other words, any gains to be had through the
political process were perceived to be less stable than what the union was capable of achieving through
direct negotiation with employers.
However, in the 1890s and 1900s, AFL representatives began to make some statements in
support of rent-seeking strategies (Dalrymple 1987: 28). In 1914, AFL President Samuel Gompers stated:
“The AFL is in favor of fixing the maximum number of hours of work for children, minors, and women… It
does not favor a legal limit of the workday for adult male workers” (quoted in Woloch 2015: 27-28). It is
significant that by this time, the social reformers discussed in the previous section had proven the
effectiveness targeting protective laws towards women. So the payoff of using a rent-seeking strategy
with respect to working women had increased, whereas for working men, the relative payoffs continued
to favor collective bargaining. This is why through the period of time in which protective legislation for
women’s work is taking off, Gompers sticks to his message that “industrial freedom must be fought out
on the industrial field,” rather than in the legislature or courts (quoted in Kenneally 1973: 51). One
objection to this interpretation might be that targeting women in this way was simply a continuation of
blunt-force labor protectionism designed to keep women out of the labor force and men’s wages high.
However, protectionism of that stripe was not as viable a strategy in 1914 as it had been in 1894. Since
22
the AFL’s earlier strong statements against working women, women had entered unions in sufficient
numbers that the AFL had sanctioned in 1903 an offshoot—the National Women’s Trade Union League
(WTUL)—dedicated explicitly to unionizing women’s trades. Negotiations between the two independent
but linked organizations were sometimes rocky, but the WTUL’s popular and legislative successes meant
that explicitly colluding against them would likely have been counterproductive to many of the AFL’s
own aims (Kenneally 1973: 46-53).
The WTUL had its own choices to make between the strategies of seeking legislation and
collective bargaining. Margaret Dreier Robins, who history remembers as shaping the WTUL’s platform
during its most influential period, assumed leadership of the organization in 1907 (Dalrymple 1987: 1618). The NWTUL was initially divided in its mission, with some advocating unionization and collective
bargaining as the best strategy for increasing the well-being of women workers, and others believing the
organization could be more effective if it focused on researching labor conditions, educating others on
their findings, and ultimately pushing for legislation (Dalrymple 1987: 18). The NWTUL initially pushed
for both unionization and protective legislation, but prioritized legislative advocacy when that path
began to seem more fruitful relative to unionization efforts (Woloch 2015: 10).
In general, women’s labor unions were often less successful at collective bargaining than men’s
labor unions. Strikes and protests sometimes led to concessions on the part of employers, but rarely
resulted in the formation of a permanent labor union (Woloch 2015: 18). One argument for the failures
of women’s unionization that does not hold is the idea that women were insufficiently educated to
comfortably express views, establish meeting procedures, and conduct other organizational
management tasks, as suggested by Dalrymple (1987: 38). By the end of the 19th century, women
comprised over 1/3 of the college age population and had been forming clubs with clearly articulated
rules and organizational structures that solved a variety of community problems for well over 100 years
(Lemke and Norgaard 2016). An explanation that is more consistent with both history and the logic of
23
political entrepreneurship is that it was sufficiently costly for working women to engage with unions—
and sufficiently likely for the strategy of seeking reform based on women’s difference from men, as the
work of Florence Kelley and other social reformers demonstrates—that collective bargaining was simply
an inferior strategy relative to legislation from the perspective of labor reform advocates. In the words
of historian Annelise Orleck (1995: 124), “[I]t was easier for working-class women to articulate and win
entitlements from an expanding state than from male colleagues in their own unions.”
VI. Conclusion
An institutional entrepreneur is, most simply, someone who wants to change something about
the world in which they live. The objective that they want to achieve may be shared by those around
them, or it may not; and the strategy that they choose may benefit others, or it may impose great costs.
The case of the Progressive era social reformers is one in which both the goals they wished to achieve
and the strategies they adopted were destructive to many.
Over the course of the period discussed here, the strategies adopted by social reformers came
increasingly to involve coercive intervention. Out of all the strategies that could have been adopted, the
appeal to the state become more and more appealing as reformers succeeded in devising arguments
that courts were willing to accept. Recognition of the universality of entrepreneurial-mindedness in
human activity gives us an important window into this world. Learning will take place; adaptation will
occur; and people will find better ways to accomplish their objectives. The implication is that the system
within which this learning occurs is of critical importance. If an institutional system rewards or facilitates
destructive behavior, then individuals will adapt. Harm and inefficiency will result. If an institutional
system rewards cooperative, welfare-enhancing behavior, then cooperative, welfare-enhancing
strategies will proliferate. In other words, the context within which entrepreneurship takes place
matters (Boettke and Coyne 2009).
24
In addition to the significance of this insight for explaining the historical episode of the shift
towards regulation of women’s work in the late 19th and early 20th century, it is also valuable for
recognizing the ways in which the Progressive era reformers altered the institutional context for future
actors. One important example is the way in which making gender-based arguments in a court of law
strengthened expectations regarding gender roles in ways that likely made it more difficult for future
members of both sexes to defy those expectations. The precedent established by Muller v. Oregon was
used to uphold laws barring women from participating in juries; to limit women’s access to occupations
related to the sale or distribution of alcoholic beverages; and to affirm the right of state-supported
colleges to exclude women (Dalrymple 1987: 259). The process of rolling back the legal sexdiscrimination established by the Muller v. Oregon decision became a battle that played out in many
courtrooms and over many women’s lives through the 1970s (Dalrymple 1987: 261-64).
Further, an important question for future development is the extent to which these early
protective laws helped pave the way for the passage of the labor regulations included in the New Deal
and other future regulatory interventions. If the inevitable entrepreneurial ambitions of the reformers
had been channeled in a different direction, the expectations surrounding the likely success and
acceptability of these reforms may have been different. Not only does the context within which
entrepreneurship takes place matters, it matters a lot, and potentially for quite far into the future.
25
References
“A Look Back on 100+ Years of Advocacy.” National Consumers League. http://www.nclnet.org/history.
Accessed December 23, 2015.
Anderson, Terry L., and Peter J. Hill. 2002. “Cowboys and Contracts: The Evolution of Property Rights.”
Journal of Legal Studies 31: S489–514.
Baumol, William J. 1996. “Entrepreneurship: Productive, Unproductive, and Destructive.” Journal of
Business Venturing 11 (1): 3–22.
Boettke, Peter J. and Christopher J. Coyne. 2009. Context Matters: Entrepreneurship and Institutions,
Foundations and Trends in Entrepreneurship Monograph Series.
Boettke, Peter J., and Ennio Emanuele Piano. 2016. “Baumol’s Productive and Unproductive
Entrepreneurship after 25 Years.” Journal of Entrepreneurship and Public Policy, forthcoming.
Bolt, Christine. 1993. The Women’s Movements in the United States and Britain From the 1790s to the
1920s. Amherst, MA: The University of Massachusetts Press.
Buchanan, James M. and Gordon Tullock. 1962. The Calculus of Consent: Logical Foundations of
Constitutional Democracy. University of Michigan Press.
Chamlee-Wright, Emily and Virgil Henry Storr. 2009. “The Role of Social Entrepreneurship in Post-Katrina
Community Recovery.” International Journal of Innovation and Regional Development 2 (1-2):
149–64.
Dalrymple, Candice. 1987. Sexual Distinction in the Law: Early Maximum Hour Decisions of the United
States Supreme Court, 1905-1917. Garland Publishing, Inc.: New York & London.
Dilg, Janice. 2009. “‘For Working Women in Oregon’: Caroline Gleason/Sister Miriam Theresa and
Oregon’s Minimum Wage Law.” Oregon Historical Quarterly 110 (1): 96–129.
French, Jessica R. 2015. “‘Practical Club Work’: The Women’s Bindery Union and Twentieth Century
Reform in Washington, D.C.” Washington History 27 (1): 36–49.
Goldin, Claudia. 1988. “Maximum Hours Legislation and Female Employment: A Reassessment.” Journal
of Political Economy 96 (1): 189–205.
Greene, Julie. 1998. Pure and Simple Politics: The American Federation of Labor and Political Activism,
1881-1917. Cambridge: Cambridge University Press.
Hayek, Friedrich A. [1968] 2002. “Competition as a Discovery Procedure.” Translated by Marcellus A.
Snow. Quarterly Journal of Austrian Economics 5(3): 9-23.
Kenneally, James J. 1973. “Women and Trade Unions 1870-1920: The Quandry of the Reformer.” Labor
History 14 (1): 42–55.
Kirzner, Israel M. 1997. “Entrepreneurial Discovery and the Competitive Market Process: An Austrian
Approach.” Journal of Economic Literature 35 (1): 60–85.
_____________ 1979 (1985). “The Perils of Regulation: A Market-Process Approach,” Discovery and the
Capitalist Process, ch. 6, pp. 119-149.
26
_____________ 1973. Competition and Entrepreneurship. Chicago, IL: University Of Chicago Press.
Kuchař, Pavel. 2015. “Entrepreneurship and Institutional Change.” Journal of Evolutionary Economics 26
(2): 349–79.
Landes, Elisabeth M. 1980. “The Effect of State Maximum-Hours Laws on the Employment of Women in
1920.” Journal of Political Economy 88 (3): 476–94.
Lemke, Jayme S. 2016. “Interjurisdictional Competition and Married Women’s Property Rights,” Public
Choice 166(3): 291-313.
Lemke, Jayme S. and Julia Norgaard. 2016. “Club Women and the Provision of Local Public Goods.”
Working paper.
Leonard, Thomas. 2016. Illiberal Reformers: Race, Eugenics & American Economics in the Progressive
Era. Princeton, NJ: Princeton University Press.
Lipschultz, Sybil, ed. 2003. Women, the Law, and the Workplace. Volume 1: Social Feminism, Labor
Politics, and the Law. New York, NY: Routledge.
Martin, Adam. 2011. “Rational Choice without Closure: The Microfoundations of Virtuous Cycles and
Vicious Circles.” Journal of Economic Methodology 18 (4): 345–61.
McCammon, Holly J. 1995. “The Politics of Protection: State Minimum Wage and Maximum Hours Laws
for Women in the United States, 1870-1930.” The Sociological Quarterly 36 (2): 217–49.
Mises, Ludwig von. [1929] 1996. A Critique of Interventionism. Trans. Hans F. Sennholz. Irvington-onHudson, NY: Foundation for Economic Education.
North, Douglass. 1981. Structure and Change in Economic History. New York, NY: W. W. Norton.
Novkov, Julie. 2001. Constituting Workers, Protecting Women: Gender, Law, and Labor in the Progressive
Era and New Deal Years. Ann Arbor, MI: The University of Michigan Press.
Orleck, Annelise. 2000. Common Sense and a Little Fire: Women and Working-Class Politics in the United
States, 1900-1965. Univ of North Carolina Press.
Ostrom, Elinor. 1965. Public Entrepreneurship: A Case Study in Ground Water Basin Management. PhD
Dissertation, University of California—Los Angeles.
Rodgers, Daniel T. 1998. Atlantic Crossings: Social Politics in a Progressive Age. Cambridge, MA: Harvard
University Press.
Salmon, M. 1986. Women and the law of property in early America. Chapel Hill, NC: University of North
Carolina Press.
Shockley, Gordon E., Roger R. Stough, Kingsley E. Haynes, and Peter M. Frank. 2006. “Toward a Theory
of Public Sector Entrepreneurship.” International Journal of Entrepreneurship and Innovation
Management 6 (3): 205–23.
Shockley, Gordon E., and Peter M. Frank. 2011. “The Functions of Government in Social
Entrepreneurship: Theory and Preliminary Evidence.” Regional Science Policy & Practice 3 (3):
181–98.
27
Sobel, Russell S. 2008. “Testing Baumol: Institutional Quality and the Productivity of Entrepreneurship.”
Journal of Business Venturing, The Economics of Entrepreneurship, 23 (6): 641–55.
Storr, Virgil Henry. 2009. “North’s Underdeveloped Ideological Entrepreneur.” In The Annual
Proceedings of the Wealth and Well-Being of Nations Volume 1: Social Institutions and the Rule
of Law, ed. Emily Chamlee-Wright. Beloit, WI: Beloit College Press, 99-115.
Storr, Virgil Henry, Stefanie Haeffele-Balch, and Laura E. Grube. 2015. Community Revival in the Wake of
Disaster: Lessons in Local Entrepreneurship. New York, NY: Palgrave Macmillan.
Storrs, Landon R. Y. 2000. Civilizing Capitalism: The National Consumers’ League, Women’s Activism, and
Labor Standards in the New Deal Era. Chapel Hill, NC: University of North Carolina Press.
Tullock, Gordon. 1967. “The Welfare Costs of Tariffs, Monopolies, and Theft.” Economic Inquiry 5 (3):
224–32.
Tullock, Gordon. [1989] 2005. “Rent Seeking: The Problem of Definition.” In C.K. Rowley, ed., The RentSeeking Society. Indianapolis: Liberty Fund, pp. 3-10.
Wagner, Richard E. “Pressure Groups and Political Entrepreneurs: A Review Article.” Papers on NonMarket Decision Making 1 (1): 161–70.
Warbasse, E. B. 1987. The changing legal rights of married women 1800–1861. New York: Garland
Publishing, Inc.
Woloch, Nancy. 2015. A Class By Herself: Protective Laws for Women Workers, 1890s-1990s. Princeton,
NJ: Princeton University Press.
Zaher, C. 2002. “When a woman's marital status determined her legal status: A research guide on the
common law doctrine of coverture.” Law Library Journal 94(3): 459-486.
Zimmerman, Joan G. 1991. “The Jurisprudence of Equality: The Women’s Minimum Wage, the First
Equal Rights Amendment, and Adkins v. Children’s Hospital, 1905-1923.” The Journal of
American History 78 (1): 188–225.
28
Figure 1: Action and reaction in social reform
Action
according to
expected payoff
Evaluation of
alternative
strategies
Changes in
behavior, rules,
or expectations
29