LochnerEra - most significant judicial interventions in American history

t With possible exception of Dred Scott.

t One explanation as to why there has been no organized working-class political party in U.S. (as there has been in most other advanced industrial countries) is that U.S. has had a stronger judiciary; judicial intervention made collective political action futile here.

t Law was abandoned as instrument of social transformation, and instead labor attempted to win gains through collective bargaining on an industry-by-industry basis, with gains predictably concentrated among the most skilled workers in key, bottleneck industries such as coal, steel, and autos.

t Predictable consequence was a smaller and smaller proportion of labor was organized, and an increasing lack of sympathy for labor movement, because that movement was generally understood to benefit only a privileged few.

t What you think of Lochnerultimately depends on what you think of the marginalization of labor in American politics.

Munn v. Illinois - Escape hatch from Lochner– “Public interest”

t Held that government could regulate private property that was “affected with a public interest.” The boundaries of this category were, of course, highly contestable, and this exception started to swallow the rule in Nebbia v. New York.

Muller v. Oregon – Another escape hatch – Women “special class”

t Women were a special class who were entitled to special protection from the market, and thus maximum-hours laws were permissible as applied to them. This escape hatch had a price (Forbarth):

n Constitutional segmentation of labor into a “dependent” class of children, women, and men in certain dangerous or especially vulnerable callings, and an “independent” class of “free adult workers” who ought not to rely on “state paternalism” helped fragment not only labor legislation but also workers’ group identity.

n The courts’ relative hospitality toward hours laws for women and children encouraged and ratified within labor circles a gender-based division of the working class. The labor movement had once favored “universal hours laws,” signifying its class-wide constituency; now it supported hours legislation for those “dependent” groups now deemed outside the movement, because they could not “look after themselves” through collective self-help.

t Examine Adkins v. Children’s Hospitalagain when we turn to sex equality cases.

Date: 2015-01-02; view: 668