Legal Realism
Prof. Bill Long 10/18/06
From Lochner (1905) to Frank (1930)
The purpose of this essay is to provide an outline, some primary text excerpts and a few questions to guide our discussion of this most important phenomenon/movement in American Law/Jurisprudence. I have written three essays on Roscoe Pound, one of the earliest sociological jurisprudents in America, and four more on the Legal Realist movement itself, which should provide more than enough background information for you. The focus of this class will be on the reaction of the Progressives/realists to the Lochner decision, the new empirical emphasis of law, and the psychological emphasis of Jerome Frank in his wonderful excerpt on judges and judging. First, an outline. By the way, Holmes was still a major figure in this period, having served on the US SCt from 1902-32. You can almost "hear" the influence of "The Path of the Law" (1897) in all these issues.
I. The Despised Decision--Lochner v. New York
A. The Facts and Decision
B. Holmes' Dissent
II. Roscoe Pound (1870-1964) and the Attack on "Mechanical" Jurisprudence--1908
A. What is "Mechanical" Jurisprudence, for Pound?
B. The Switch in Emphasis to Empirical or Sociological Jurisprudence
III. The "Brandeis Brief" (1908)
A. Relevant Facts of Muller v. Oregon (1908)
B. The Statistics Marshalled by Brandeis
IV. Legal Realism II (after WWI; from about 1922-1935)
A. Feldman's Explanation of this Period (pp. 110-115)
B. Jerome Frank and the Psychology of Judging.
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From the facts of Lochner v. New York, 198 US 45 (1905):
"This is a writ of error to the county court of Oneida county, in the state of New York (to which court the record had been remitted), to review the judgment of the court of appeals of that state, affirming the judgment of the supreme court, which itself affirmed the judgment of the county court, convicting the defendant of a misdemeanor on an indictment under a statute of that state, known, by its short title, as the labor [198 U.S. 45, 46] law. The section of the statute under which the indictment was found is 110..."
Section 110 provided as follows:
"110. Hours of labor in bakeries and confectionery establishments.-No employee shall be required or permitted to work in a biscuit, bread, or cake bakery or confectionery establishment more than sixty hours in any one week, or more than ten hours in any one day, unless for the purpose of making a shorter work day on the last day of the week; nor more hours in any one week than will make an average of ten hours per day for the number of days during such week in which such employee shall work."
The remainder of the statute provided for other "health and safety" regulations, such as provision of requisite furniture, utensils, drainage and plumbing of facilities for bakers, etc. This 1897 law was one of the earliest of the "Progressive Era-type" of laws dealing with issues to protect workers in dangerous industries.
The holding of the Court can be gleaned from many places in the opinion. Here are a few lines:
"The statute necessarily interferes with the right of contract between the employer and employees, concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution."
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Four Justices dissented in the case (Harlan, Day, White, Holmes), but Holmes wrote a separate dissent. Though it was little noted when he wrote it, by 1908 it had been picked up by Pound, who would soon become a professor at HLS, and so it became a sort of mini "shot-heard-round-the-world." Here are about 80% of his words:
"I regret sincerely that I am unable to agree with the judgment in this case, and that I think it my duty to express my dissent.
This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics...
"But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States..."
"I think that the word 'liberty,' in the 14th Amendment, is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work..."
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