Time for Things Labor, Leisure, and the Rise of Mass Consumption

Nathan Isaacs, a professor of business law at Harvard, writing in 1934, characterized the 1906 provisions for implied warranties as “liberal.” They included “implied contracts of correspondence with description, conformity to sample, fitness for particular purpose, and compliance with trade usages and customs” (Isaacs 1934, p. 181). Assessing the impact of the principle of the implied warranty, Isaacs writes: “The setting up of a standardized contract of sales by statute, from which deviation is possible only by making clear provisions to the contrary, is a mighty force in this busy world to bring about even-handed bargains” (p. 181 [emphasis added]). This characterization raises the question of what criteria must be met in order for a given exchange to qualify as “even-handed.” To be sure, even-handedness meant the elimination of egregious asymmetries of information between seller and buyer—the 1906 legislation addressed that issue by making it incumbent on the seller not only to not actively conceal flaws, but also to point out those that might not be apparent to the prospective buyer. Yet the notion of “fitness for purpose” suggests something more substantive than just securing transparency in the marketplace, for purpose implies use and use entails practices extended in time. In order for a product to be fit for its purpose it must be able to perform its function for a “reasonable” number of uses, and therefore for some approximate duration of time. If a product, say a bicycle, were to break after having been ridden for only five days, it would not be judged as having been “fit for purpose.” To specify that goods must be fit for purpose then entailed that consumers have the right to some duration of use from them (most states specified that a “reasonable” duration of efective usefulness for consumer durables under the implied warranty is four years). The legal concept of “fitness for purpose” was, therefore, connected to the norm that goods should contain some objectively reasonable quantity of abstract use power (measured as a duration of time in use) while also suggesting a standardization of the uses of things—use “under normal circumstances.”

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The development of commercial law is certainly a deeply complex matter, subject to diverse cultural, professional, political, legal, and social influences. In relation to the argument of the present book, however, the significant point is that the drift of commercial law over the course of the twentieth century was in the direction of afirming the right of the consumer to some quantity of usefulness from purchased products. The rise of the implied warranty indicates that fairness in exchange had shifted from being primarily a formal matter of free assent to a contract to being a matter of a roughly equal exchange of substances. Fair market exchange obtains where the quantity of usefulness notionally represented by the money exchanged for a commodity (in turn indexing the value of the labor given in exchange for the wage) is met by reasonably equivalent quantities of usefulness in the commodity.

The legal notion that consumers have a right to useful objects through market exchange was, like all rights, grounded in a broader normative order. The entitlement of consumers to wage goods containing a reasonable duration of use power flowed, I would suggest, from the moral economy underpinning wage labor itself. As we have seen, historians have suggested that the moral economy of mid-twentieth century American capitalism coalesced around the concept of “purchasing power,” the ongoing increase of which constituted a “fair exchange” for labor’s contribution to increasing productivity. The efort to secure the use value of consumer commodities, by legal, commercial, and political means, expressed the imperatives of that moral economy while also providing it with vital institutional and ideological support.

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The increasing concern with securing by law the right of consumers to a “fair” quantity of use value (that is, a reasonable duration of hypothetically realizable use value) from the products they purchase dovetailed with the regulations to standardize consumer products. Ensuring that consumers would get a fair exchange in the marketplace became a growing preoccupation for government regulators. According to business historian Richard Tedlow’s analysis, between 1914 and 1938 the Federal Trade Commission’s advertising regulation policy shifted from concern with competition to care for consumers—with care conceived of as making sure that consumers get a “fair deal.” The change in the FTC’s regulatory practice is significant in that fairness was construed as something more substantive than getting products at market rates, determined by free competition (Tedlow 1981). At the same time, by the middle of the century securing a fair deal for the consumer was not just a matter of abstract justice—ensuring that each consumer gets her “money’s worth” or that deals are “fair and square.” For consumer rights had, in addition, an important social and political dimension. In accounts of the origins of strict product liability, for example, legal scholars have noted that over the course of the twentieth century, judges increasingly took into consideration the social consequences of their legal decisions, rather than just considering matters of causation and fault and the relative interests of the plaintif and defendant in the case at hand (Hackney 1995). Social consequences often meant consequences for the interests of consumers, who were regarded as a vitally important social constituency.

Taking into account the social implications of legal decisions suggests the dominance of practical, social reasoning over formal rational concerns—or, in terms of philosophical ethics, of a broadly consequentialist position (one concerned with consequences, most usually for aggregate welfare) over a deontological stance (one concerned with rights and duties). However, the consequentialist perspective, in this case, was connected to an interpretation of the grounds on which the social order could be construed as being legitimate. If a practice was seen as being unfair, the social consequences might be destructive to the sociopolitical order, and the legal system took that into account. The duty of a right-thinking, socially minded, consequentialist judge was, therefore, to render decisions that would uphold the delicate moral equilibrium on which social order and political legitimacy depended.

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In this sense, the legal concern to protect consumers was continuous with that of the broader sociological jurisprudence movement, which was influential in the early and middle decades of the century. Led by prominent legal thinker Roscoe Pound (1911a, 1911b, 1912), sociological jurisprudence advocated a pragmatic, consequentialist approach to legal reasoning.

The preoccupation with safeguarding consumer rights, and protecting consumer interests, indicates the growing influence of the concept of the consumer citizen (L. Cohen 2003). The importance in the twentieth-century political imaginary of consumers was reflected in the creation of a number of government bodies with specific concern for consumer interests. During the Depression years, these included, among others, the Consumer’s Counsel Division of the Agricultural Adjustment Administration and the Consumer’s Advisory Board of the National Recovery Administration. The Ofice of Price Administration, which had a central role in running the consumer economy during the Second World War, was also perceived as advocating for consumer interests.33 In the postwar years, the concern to represent consumer interests continued at the highest political levels. Calls for consumer protection, which had been relatively muted since the reforms of the Progressive era, became commonplace from the 1950s onward, as did demands for cabinet-level representation for consumers (Glickman 2009). John F. Kennedy went so far in 1962 as to float the idea of a consumer’s bill of rights.34 The emergence of the implied product warranty was thus not an isolated legal development but rather part of a constellation of institutional developments the point of which was to ensure that consumers were fairly treated in the marketplace—with fairness understood as obtaining where consumers receive a fair amount of use value in exchange for their wages.

Upholding consumer rights was important for the legitimacy of capitalism, especially in the era of mass production, because through those rights, a connection was forged between wage labor and fundamental tenets of capitalist ideology. Consumer rights are an extension of rights attached to self-ownership, which can ultimately be traced to the possessive individualism that constitutes the deep normative ground for capitalism—articulated by liberal thinkers from Locke onward (MacPherson 1962). The moral force behind substantive (as opposed to formal) consumer rights is grounded in the right to commensurate compensation for having sold one’s (alienated) labor. For wage earners to have consumer rights is precisely to underline the fact that they are something other than slaves, despite the quite significant degree of economic coercion involved in the commodification of labor. As a free seller of labor, the wage laborer is entitled not just to arbitrary nominal compensation, set by the capricious workings of the labor market, but to substantive compensation in the form of a certain quantity of real buying power—which in turn is measured by the notional use power contained in commodities. As the legal and commercial developments discussed in this chapter safeguarded the use value of consumer commodities, so wage labor itself became more imaginable as an exchange of commensurable substances.

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EIGHT

Product Testing and Product Regularization

Standardized production, as we have seen, produced standardized consumer goods—which, at least in theory, were supposed to be reliable, durable, and endowed with predictable characteristics. Such was the ideal, often indexed by a brand and sometimes backed by a commercial warranty. In practice, however, the consumer durables churned out by the system of industrial mass production not infrequently failed to live up to expectations.1 Although product specification standards were stipulated by various industry and government bodies, enforcement of standards was spotty at best. Where products were found to be faulty, commercial warranties could not necessarily be relied on to make things right, while taking matters to court involved a serious commitment of time and money. One consequence of the standardization of consumer products, was, therefore, a movement to regulate and test final products, to ensure that they measured up to acceptable standards (however exactly those were defined). Consumer product testing, particularly in the period after the Second World War, was to develop into a basic institution of consumer capitalism. The rapid expansion of consumer product testing in the second half of the twentieth century indicates a growing concern with the material properties of commodities. And as attention focused on the material properties of commodities, so the issue of the context in which things are put to use fell into the background. The preoccupation with the material properties of commodities suggests a shift in thinking about utility from being primarily a function of the conjunction, within particular lives, of potentially useful things and actual activities to being primarily a matter of the things themselves, taken in isolation.2

Systematic third-party consumer product testing by nongovernment organizations first emerged in the United States in the 1930s, with testing laboratories set up by Consumers’ Research and its rival, Consumers Union (CU). Over the following decades consumer testing became widespread, with results reported in the publications of consumer organizations, in periodicals devoted to particular products or hobbies and in mainstream newspapers and magazines. Even as early as 1955, 5 to 10 percent of America’s purchasing units, according to one estimate, were directly influenced by recommendations made by CU’s publication, Consumer Reports (CR) (N. D. Katz 1977; Sargent 1958). This figure probably greatly underestimates the extent of the influence of product testing, as test results informed the reputation of products and brands even for consumers with no direct knowledge of the results.

In the postwar period, business began to take increasing note of the activity of consumer testing organizations, especially Consumers Union. According to Jean Whitehall, managing editor at CU, this was because businesses realized that “adjustments of a product based on CU comments were beneficial to sales” (N. D. Katz 1977, p. 314). Manufacturers also began to refer to Consumer Reports test results in their marketing campaigns. The change in attitude of business to CR was in response to the broader dissemination of consumer consciousness in the postwar era, as the ideas and concerns of the consumer movement became more mainstream. Historians have noted that in the postwar period, workers were supportive of the consumer movement, seeing the campaign to secure quality in consumer goods as a natural extension of labor’s postwar objective of increasing real income (Creighton 1976; L. Cohen 2003). Consumer product testing quickly became a common practice, spreading well beyond consumer advocacy organizations and government labs into all corners of the public sphere.

Given how widespread product testing has become, there is a surprising paucity of scholarship about the subject. The research that has been done has approached the topic from the angle of production. In the literature, consumer product testing is broadly portrayed as an expression and extension of the rationalizing principles developed in early twentieth-century mass production, associated with Taylorism (N. D. Katz 1977; Noble 1977; Silbur 1983; L. Cohen 2003; Glickman 2009). On this understanding, consumer product testing, like much else in capitalist modernity, reflects an unending quest for ever more optimized technique. Testing was just one more manifestation of rationalization, subsumed under the broader drive for eficiency, where ultimately eficiency is thought about from the point of view of the economy as a whole—eficient production and eficient consumption working together to minimize the aggregate waste generated by the economy.

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That interpretation certainly captures one dimension of the ascent of product testing, for testing was indeed connected to the broader project to make production more rational and scientific. A lineage can be traced between the early eforts to test consumer products and the activities of testing laboratories established by corporations such as American Telegraph and Telephone, General Electric, Dupont and Westinghouse.3 The function of these corporate labs, in addition to developing new products, was to establish standards for materials used in production and to test batches of the materials purchased by the company to ensure that those standards were met. This was similar to the idea behind early consumer product testing by Consumers Union and Consumers’ Research, which was to set standards for consumer goods and police those standards by way of an ongoing program of product testing.

As with standardized production, the origins of product testing lay in the passionate work of proselytizing eficiency engineers, who were inspired by a rationalist vision of optimized production. The eficiency movement had a significant presence in civil society over the first three decades of the twentieth century. It encompassed the home economics movement, which emerged at the turn of the twentieth century, and assimilated the household (and therefore mass consumption) to its grand vision of optimized economic eficiency. The Home Economics Association (HEA), founded in 1908, took an active role in creating and promoting standards for household products such as sheets and blankets (Ayres 1934). The point of standards, as seen in Chapter 6, was to safeguard the use value of consumer commodities. Home economist Rosalind Cook (1927) gave a succinct statement of this perspective: “It is a commonly conceded fact that service value is an important factor in practically every product we buy. In certain cases we speak of quality as durability, and in others as work value; some speak of it as economic value; but whatever term we may use in describing the quality, we recognize it as fundamental and inherent in the product itself. How can we assure ourselves that such a quality exists in the product and the degree in which it is present? The answer seems to be through the use of established measurements which have the accuracy and authority of a standard .  .  . standard specifications assure the purchaser of a measured amount of the factors which make for durability or service quality.” The HEA’s mission was to educate the wider public about the meaning and value of the work of enlightened experts in establishing standards for consumer goods. Max Getz, chairman of the Committee on Ultimate Consumer Goods of the American Standards Association, writing in the Journal of Home Economics, described the work of home economists as filling an “urgent need among consumers for more examples, ideals, rules, for more types, models, or examples for comparison, yes even for more ‘tests,’ . . . [for] standards [are a] language that must be taught” (Getz 1940, pp. 520–21). But standards without systematic testing would be inefectual. As early as 1910, the women’s magazine Good Housekeeping, under the influence of the home economics movement, established a research institute that featured a model kitchen and testing station for household devices, along with a “domestic science laboratory.”4 The “Good Housekeeping Research Institute” bestowed the magazine’s “seal of approval” on goods that passed its tests, which was backed by a two-year limited warranty. For home economists, promoting consumer product testing and standardized specifications was a part of its broader pedagogical agenda, which was to make consumers “conscious of the characteristics of consumer goods.”5 The idea was for consumption to be a field of technical knowledge, which would be disseminated to the public. Homes, in this vision, would eventually come to be managed by expert home makers, “household engineers,” who would practice a “science of ultimate consumption” (Goldstein 1997).6

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The general quest for economic eficiency and standardization was, as we have seen, also a project of the state. Beginning in the early twentieth century, government agencies were created to ensure quality control for government purchases.7 Early consumer activists were inspired by, and drew attention to, the efort on the part of the federal government to establish standards for the products they procured. Stuart Chase and Frederick Schlink, pioneers of the consumer movement, opined, in 1925, that “there are billions to be won if the consumer—both ultimate and intermediate . . . can follow the example of the federal government in purchasing material.”8 The National Bureau of Standards (NBS), in addition to its work establishing standards (discussed in Chapter 6), developed an elaborate testing program to ensure that those standards were met. Other government agencies, such as the Bureau of Chemistry and the Bureau of Home Economics, did likewise, building their own testing laboratories. While in-house laboratories and standards divisions were developed by various governmental agencies, it was, however, only the National Bureau of Standards (NBS) that had a program to conduct systematic testing specifically of consumer products.

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Even before independent consumer organizations began testing products, the NBS had been engaged in similar activities. Early testing conducted by the bureau was meant primarily for engineers and product specialists work ing in industry and so focused on industrial materials and processes rather than consumer products. But this early orientation toward industry was seen within the bureau as a shortcoming, precisely because it excluded the end user of industrial products—the consumer. As a corrective, in 1915 the bureau began to publish circulars written expressly for the general public. The first of these, circular no. 55, focused on appliances and was entitled Measurements for the Household. It enumerated its purposes in the introduction as: “(1) to give information as to units, methods, and instruments of measurement useful in household activities (2) to describe the available means of assuring correct quantity in articles bought by weight and measure, and (3) to give other facts of interest which would awaken an appreciation of the role of measurement in daily life” (National Bureau of Standards (1915), p. 7). The publication proved much more popular with the public than had been expected. While the usual print runs for circulars were two hundred to three hundred, demand for circular no. 55 was such that ten thousand copies were printed within three months of publication. By 1917, thirty-three thousand copies had been sold. Measurements for Households was followed, in 1917, by NBS circular no. 70, a 259-page manual entitled Materials for the Household. The pamphlet described its aim as “practical,” listing its objectives as follows: “(1) to stimulate the interest in household materials (2) to explain the nature of their desirable properties (3) to aid in their intelligent selection (4) to promote their efective use and preservation” (p. 9). Fifteen thousand copies of Measurements for Households were sold in the year of its publication. The goal of both circulars, according to the bureau, was “to make scientific results available for those with little or no technical training” (quoted in Cochrane 1966, p. 137). Circular nos. 55 and 70 would become templates for the pioneering consumer movement publications Consumer Bulletin and Consumer Reports. Indeed, Schlink and Chase argued that there was a need for an organization equivalent to the NBS, able to perform “impartial tests” in order to enforce “impartial standards,” only entirely devoted to the testing of consumer products. For, they complained, unlike items purchased by the government, “the great bulk of the things which we consumers buy are never reviewed by any impartial testing body.”9

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