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Today’s Lecture: • The Arrival of Holmes & the “Realists” • Who, What & Why • The Significance • Lochner

Lecture Organization: • Class Announcements • Review • Oliver Wendell Holmes and the Great Rebellion • Lochner • The Significance of Lochner and Holmes Time

Class Announcements Next Quiz -- Postponed Until This Friday -- Deadline to submit questions is Thursday, in class.

Class Announcements Major syllabus revision -- I think it is foolish to have you quizzed, papered and examed on this material -- So what I would like to do is to perform some major surgery on the syllabus -- Here is what I propose

Quizzes Exams We have these things called quizzes. They are open-note/open-book multiple guess questions. In all of my other classes, these things pair themselves with something called an “exam,” which is nothing other than the very same quiz questions with fresh questions added.

Quizzes Exams Paper Exam In this class, there is a problem. The quizzes are an independent foe. Then you have a paper and an exam, each independently testing you on Part I material. Another problem: The exam is philosophical.

Quizzes Exams Paper Exam Paper • Here is what I propose: • The exam on March 6th will become the paper • What WAS the paper will then become a multiple choice exam on March 6th. • And the Exam will simply be a cut-and-paste job, with some fresh questions added, like all of my classes

Quizzes Exams Paper Exam Paper • Summary: • On March 6th, you have a multiple-choice exam. • After the exam is over, you are handed the paper, which is due after spring break, in class, on March 18.

Quizzes Exams Paper Exam Paper • Summary: • The percentages in the syllabus keep their ORIGINAL value. • Hence, what was your exam, but now is your paper, is worth 20% • What was your paper, but now is your exam, is worth 15% of your grade.

Quizzes Exams Paper Exam Paper • Why this is a good deal. • The same exact exam that you would have had to write in class you now can do at home (very good deal) • The stupid paper you were going to write now turns into nothing other than hunting down your quiz errors plus studying a little bit more. (major saving on labor) Questions?

Class Announcements Student Parliament -- If you have a 90% or better on the first quiz OR have perfect attendance through February, you are in the House of Lords -- Revisions or amendments in class policy can be INITIATED by the Lords. -- You need to select a Speaker. Anyone willing to do this should email me, and I will place your name on a ballot. -- We’ll hold an election next week -- There is a new message board on ANGEL titled “Student Parliament.”

Time Class Announcements Online Lectures -- These are current Next Cases • -- Brown v. Board of Education • (warning on pop quizzes). Questions?

Review Finished Up Classical Legal Thought Use of tradition as an A-priori • -- that important traditions must be preserved in law (given the status of “law.”) • -- that is what should inform us when we read vague constitutional words • -- “Blackstonian wing of classicism” Brandwell case

Review Finished Up Classical Legal Thought Wynehamer • -- used syllogistic reasoning that was informed by tradition • Alcohol is property • The Law protects property • It does not matter that beer is different from real estate • The due process clause does not allow for prohibition Great Tradition says so Great Tradition says so “Logic” or rhetoric The conclusion

Oliver Wendell Holmes and the Great Rebellion Who is Holmes? -- Probably the greatest Supreme Court justice, next to John Marshall -- Fought in the Civil War -- Became a lawyer and a law professor -- Wrote an extremely important treatise called The Common Law in 1881. -- Was appointed to the Supreme Court by Teddy Roosevelt in 1902 (served until 1932, at the age of 90, which is a record)

Oliver Wendell Holmes and the Great Rebellion “The Common Law” -- Holmes was very much against classical legal thought -- was very much against a-priori judging -- his historic opening volley in The Common Law

Oliver Wendell Holmes and the Great Rebellion Holmes – the common law “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation.” Holmes – the common law “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation.” Holmes – the common law “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation.” “The Common Law” -- Holmes was very much against classical legal thought -- was very much against a-priori judging -- his historic opening volley in The Common Law Law as autonomous contemplation is out. Law in the form of an a priori is out

Oliver Wendell Holmes and the Great Rebellion Holmes – the common law “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation.” Holmes – the common law “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation.” Holmes – the common law “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation.” Law as Policy Evolution??? “The Common Law” -- Holmes was very much against classical legal thought -- was very much against a-priori judging -- his historic opening volley in The Common Law

The Implication -- In: Out: Social Needs Popular Morals Policy Intuition Logic Axiom Corollary Mathematics Syllogism Judges don’t FIND law; They MAKE IT UP. They make it what they want it to be.

The Implication -- In: Out: Social Needs Popular Morals Policy Intuition Logic Axiom Corollary Mathematics Syllogism What is being rejected: 1. A-priori decision format (“Nature says… Logic says”) 2. “Law” as an autonomous, self-contained method. 3. The means are not the ends! Formalism

Oliver Wendell Holmes and the Great Rebellion The “Realists” -- 20 years after Holmes, a group of legal academics will come along and call themselves “The Realists.” -- By and large, they basically advocated the same thing that Holmes did (your law professors will think far too much of “the realists” and not enough of Holmes). I’m in the other camp. The realists did not make a genuine intellectual contribution that Holmes didn’t make first, except for, of course, sociological jurisprudence (discussed later).

Lochner Facts: • -- “Boss Bakers” (bakery in basement) • -- working conditions: poor ventilation (baker’s lungs), standing all day, working more than 60 hours a week • -- Low profit margin • -- New York enacts labor reform: can’t work more than 60 hours a week. Question: What are the facts of this case?

Lochner Issue: “Freedom of Contract” • -- The Due Process clause has been interpreted to protect the ability of an employer and employee to enter into a contractual relationship under the terms that each adult sees fit. Question: What is the legal issue?

Lochner Issue: “Freedom of Contract” Note the similarity of the logic to Wynehamer • Employment is a contractual relationship • Contracts are protected by the law • It does not matter that workers are getting screwed (all contracts are treated the same) • The due process clause does not allow for manipulation of this sacred right Inflexible, self-contained syllogism. The answer is found in a kind of “logic” that is only about law’s ideas Never look and ask the question: is this social practice (boss bakery) a good idea.

Lochner Ruling • -- Freedom of contract wins. The employment reform law is stricken • Let’s examine the rationale … Question: What is the holding in the case?

The Majority Opinion – “Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week. ... There must be more than the mere ... possible existence of ... a small amount of unhealthiness to warrant legislative interference with liberty. It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities? A printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker, a dry goods clerk, a bank’s, a lawyer's or a physician's clerk, or a clerk in almost any kind of business, would all come under the power of the legislature, on this assumption. No trade, no occupation, no mode of earning one's living, could escape this all-pervading power, and the acts of the legislature in limiting the hours of labor in all employments would be valid, although such limitation might seriously cripple the ability of the laborer to support himself and his family.” Lochner Ruling • -- Freedom of contract wins. The employment reform law is stricken • Let’s examine the rationale …

There is a great right called “Freedom of Contract.” (Precedents say so; sacred tradition says so) • The law also says that the states have something called “police power” (power to regulate for the health and safety). • The police power can’t win here because: • Bakers are not disabled (wards of the state) • Baking is not “dangerous” (c.f., coal mines) • If the legislature can regulate this, they can interfere in the working conditions of any employment contract whatsoever, which would destroy the freedom to set employment working conditions by contract True True True Question: Did the justices use their ideology when deciding, and is that bad? True? Question: What does Holmes say about this? Question: What the decision correct? True (but explain)

Lochner Great Dissent • (Holmes is known as the great dissenter) • This is what he says in dissent …

Holmes Dissent Freedom of Contract is an Economic Ideology Holmes – “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 a constitution is not intended to embody a particular economic theory, whether of paternalism or ... 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. Holmes – “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 a constitution is not intended to embody a particular economic theory, whether of paternalism or ... 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. The Constitution doesn’t tell us how to play capitalism

Holmes Dissent Holmes – “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 a constitution is not intended to embody a particular economic theory, whether of paternalism or ... 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. Holmes – “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 a constitution is not intended to embody a particular economic theory, whether of paternalism or ... 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. A-priorism is not logic, it is the accident of opinion

Holmes – “General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. … Every opinion tends to become a law. I think that the word “liberty” in the Fourteenth 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 installment of a general regulation of the hours of work.

Holmes – “General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. … Every opinion tends to become a law. I think that the word “liberty” in the Fourteenth 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 installment of a general regulation of the hours of work. Stop Using the A-priori Decision Format!

Holmes – “General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. … Every opinion tends to become a law. I think that the word “liberty” in the Fourteenth 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 installment of a general regulation of the hours of work. Law = Hegemony? Law = the order of its time Law = The great needs of the day that prevail in a system designed to make victory difficult.

Significance of Holmes, “Realists” and Lochner Here we are again • -- What is the basis of law? • -- Is judging special? Was American constitutionalism misguided? • -- What are these judges supposed to do? • -- How are judges supposed to judge? • -- When is something unconstitutional?

Holmes and Humpty Dumpty

“law”

Three Approaches Emerge Holmes Explosion Sociological Jurisprudence (Progressive Determinism) Positivism Skepticism Domination of American Legal Culture

“Law” as a growth science? Introduction to Sociological Jurisprudence The Realists • Legal Academics in 1920s: • A. Karl Llewellyn • B. Roscoe Pound • The Realists made no philosophic contribution that was different from Holmes, except that SOME of them developed a new school of thought. • -- offshoot caused by “realism” or the realist problem • (Philosophic and historical dimension to this story – explain)

“Law” as a growth science? Introduction to Sociological Jurisprudence Sociological Jurisprudence • Legal Academics in 1920s: • A. Karl Llewellyn • B. Roscoe Pound • The Realists made no philosophic contribution that was different from Holmes, except that SOME of them developed a new school of thought. • -- offshoot caused by “realism” or the realist problem

“growth science” “hard science” Calculus Physics Chemistry Anthropology Sociology Psychology What is the difference in the epistemology of these two kinds of pursuits?

“growth science” “hard science” Anthropology Sociology Psychology Calculus Physics Chemistry 1. probable answers 2. empirical (look science) 3. more paradigmatic 4. truth changes with time (more knowledge). 1. certain answers? 2. more mathematical? 3. central, dominant paradigm (e.g., big bang) 4. less disruption

What judges should do? Vote for empirically correct social policy!

Muller v. Oregon 1. facts of the case -- women working overtime 2. The majority opinion “That a woman’s physical structure and the performance of maternal functions places her a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon her body, and, as healthy mothers are essential to vigorous offspring, the physical well-being of women becomes an object of public interest and care in order too preserve the strength and vigor of the race.”

Muller v. Oregon 1. facts of the case -- women working overtime 2. The majority opinion “That a woman’s physical structure and the performance of maternal functions places her a disadvantage in the struggle for subsistence is obvious. This is especially true when the burdens of motherhood are upon her. Even when they are not, by abundant testimony of the medical fraternity, continuance for a long time on her feet at work, repeating this from day to day, tends to injurious effects upon her body, and, as healthy mothers are essential to vigorous offspring, the physical well-being of women becomes an object of public interest and care in order too preserve the strength and vigor of the race.” The Brandeis Brief 1. 113 pages long 2. Only 2 pages rely upon legal authority!

Let’s have a look: https://cms.psu.edu/section/default.asp?WCU=CRSCNT&id=200607FAUP+++RPL+SC497A001

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