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Economic Predilection and the Law
Published online by Cambridge University Press: 02 September 2013
Extract
As 1937 brings into sharp focus the New Deal critique of the judiciary, the phrase “economic predilection” becomes a slogan rather than a subtle juristic evaluation. The famed dictum of Justice Holmes that there is an inarticulate major premise upon which major constitutional issues are decided was necessarily made an issue in government by an Administration whose program is primarily economic. An Administration dedicated to war as governmental policy might similarly inveigh against “pacifistic propensity” in the judiciary. In the midst of the heat and controversy as to whether the integrity of the judiciary is impaired by a charge that judges adjudicate constitutional issues upon the basis of “economic predilection,” it seems desirable to inquire into the possibility of formulating a disciplined judicial economics, to the end that there may be a realistic, tempered instrument for solving the major judicial questions of our time. The more sensitive jurists have expatiated upon the intuitive and subconscious aspects of judicial decision, but beyond stating that such factors exist they have, on the whole, continued to articulate their judicial reasonings in conventional legalistic form. Legal tradition is usually successful in throwing the balance in favor of the seeming where the seeming and the actual are in conflict. What exceptions there have been have been of inestimable benefit to the law. They have brought wisdom, beauty, and strength to an ancient, oft-times sadly thread-bare, technique. An example is the approach to law exemplified by the method of Mr. Brandeis both as advocate and justice.
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- Copyright © American Political Science Association 1937
References
1 “The decision will depend on a judgment or intuition more subtle than any articulate major premise.” Lochner v. New York, 198 U.S. 45, 76 (1904).
2 Cf. Cardozo, , The Nature of the Judicial Process (New Haven, 1921)Google Scholar.
3 208 U.S. 412 (1907).
4 “Mr. Justice Brandeis and the Constitution,” in Mr. Justice Brandeis (New Haven, 1932), p. 52Google Scholar.
5 A reading in 1937 of the brief filed by Mr. Brandeis as counsel for the defendant in error (October term, 1907, No. 107) shows a simple but highly lucid analysis of the effects of hours of labor which to present-day economists and sociologists would appear to be a conventional approach. The first part of this 113-page document reviews American and foreign legislation restricting the hours of labor for women. The second part of the brief has seven major heads and is outlined as follows:
I. The Danger of Long Hours
A. Causes
(1) Physical Differences Between Men and Women
(2) The New Strain in Manufacture
B. Bad Effect of Long Hours on Health
(1) General Injuries from Long Hours
(2) Specific Evil Effects on Child-birth and Female Functions
C. Bad Effect of Long Hours on Safety
D. Bad Effect of Long Hours on Morals
E. Bad Effect of Long Hours on General Welfare
(1) State's Need of Protecting Women
(2) The Effect of Women's Overwork on Future Generations
II. Shorter Hours the Only Possible Protection
III. The General Benefits of Short Hours
A. Good Effect on the Individual Health, Home Life, etc.
B. Good Effect on the General Welfare
IV. Economic Aspect of Short Hours
A. Effect on Output
(1) Shorter Hours Increase Efficiency and this Prevents Reduction of Output
(2) Long Hours Result in Inferior Quality of Product
B. Effect on Regularity of Employment
C. Adaptation of Customers to Shorter Hours
D. Incentive to Improvement in Manufacture
E. Effect on Scope of Women's Employment
V. Uniformity of Restriction
A. Allowance of Overtime Dangerous to Health
B. Uniformity Essential for Purposes of Investment
C. Uniformity Essential to Justice to Employers
VI. The Reasonableness of the Ten Hour Day
A. Opinions of Physicians and Officials
B. Opinions of Employees
C. Opinions of Employers
VII. Laundries
A. Present Character of the Business
B. Bad Effect upon Health
C. Bad Effect upon Safety
D. Bad Effect upon Morals
E. Irregularity of Work
6 298 U.S. 238 (1935).
7 285 U.S. 262 (1932).
8 291 U.S. 502 (1933).
9 290 U.S. 398 (1933).
10 293 U.S. 388 (1934).
11 295 U.S. 495 (1934).
12 291 U.S. 293 (1933).
13 295 U.S. 330 (1934).
14 297 U.S. 1 (1935).
15 294 U.S. 240 (1934).
16 298 U.S. 513 (1936).
17 297 U.S. 553 (1936).
18 298 U.S. 587 (1936).
19 296 U.S. 287 (1935).
20 298 U.S. 492 (1936).
21 296 U.S. 404 (1936).
22 296 U.S. 140 (1935).
23 132 97 U.S. 288 (1936).
24 296 U.S. 315 (1935).
25 295 U.S. 662 (1935).
26 298 U.S. 38 (1936).
27 297 U.8. 251 (1936).
28 297 U.S. 266 (1936).
29 298 U.S. 1 (1936).
30 297 U.S. 431 (1936).
31 297 U.S. 1935 (1936).
32 March 29, 1937.
33 April 12, 1937.
34 Theaetetus, c. a.
35 Since 1900, some seventy-six articles bearing upon law and economics have appeared in the technical legal, economic, and political science literature of the United States and England. Some bear intriguing titles; viz., Heilman, R. J., “The Correlation Between the Sciences of Law and Economics,” 20 Calif. Law Rev. 379 (1932)CrossRefGoogle Scholar, and Wilson, Woodrow, “Interrelation of Sociology, Politics, and Jurisprudence,” 5 Amer. Polit. Sci. Rev. 1 (1911)CrossRefGoogle Scholar. Of these, fifty-two have appeared since 1930. Frequently bolder than such intervening treatises and texts as Commons, Legal Foundations of Capitalism (New York, 1924)Google Scholar, Beard, , An Economic Interpretation of the Constitution of the United States (New York, 1913)Google Scholar, and Laski, , Studies in Law and Politics (New Haven, 1932)Google Scholar, these articles unmistakably define the method of academic thought upon law and economics. The writer is a t present engaged upon a detailed ideational analysis of the more significant of these writings.
36 The social utility of the judicial process varies in direct ratio to the comprehension of judges. Justice Holmes, in a letter to a friend (Holmes, , Book Notices, Uncollected Letters and Papers, New York, 1936, pp. 163–164)Google Scholar, said: “Probably you will find, as I do, that ideas are not difficult, that the trouble is in the words in which they are expressed. Every group, and even almost every individual when he has acquired a definite mode of thought, gets a more or less special terminology which it takes time for an outsider to live into. Having to listen to arguments, now about railroad business, now about a patent, now about an admiralty case, now about mining law, and so on, a thousand times I have thought that I was hopelessly stupid and as many have found that when I got hold of the language there was no such thing as a difficult case. There are plenty of cases about which one doubts, and may doubt forever, as the premises for reasoning are not exact, but all the cases, when you have walled up and seized the lion's skin come uncovered and show the old donkey of a question of law, like all the rest …”
37 Lochner v. New York, 198 U.S. 45, 76 (1904), cited supra note 1.
38 See, inter alia, Louisville Gas and Electric Co. v. Coleman, 277 U.S. 32, 41 (1927); Springer v. Philippine Islands, 277 U.S. 189, 209, 210 (1927); Panhandle Oil Co. v. Knox, 277 U.S. 218, 223 (1927).
39 Haddock v. Haddock, 201 U.S. 562, 628 (1905). Contrast with the dissent of Justice McReynolds in the Gold Clause Cases, 294 U.S. 240, 381 (1934): “Loss of reputation for honorable dealing will bring us unending humiliation; the impending legal and moral chaos is appalling.”
40 Lochner v. New York, 198 U.S. 45, 75 (1904), cited supra notes 37 and 1.
41 All strikes and all picketing were once criminal conspiracies in the common law.
42 Cf. the experiential analysis by Chief Justice Hughes of the economic nature of the industries involved in the Labor Board Cases (National Labor Relations Board v. Jones and Laughlin Steel Corporation; National Labor Relations Board v. Fruehauf Trailer Co.; National Labor Relations Board v. Friedman-Harry Marks Clothing Company, Inc., April 12, 1937).
43 Berle, and Means, , The Modern Corporation and Private Property (New York, 1932), pp. 124–125Google Scholar: “In examining the break-up of the old concept that was property and the old unity that was private enterprise, it is therefore evident that we are dealing not only with distinct but often with opposing groups, ownership on the one side, control on the other—a control which tends to move further and further away from ownership and ultimately to lie in the hands of the management itself, a management capable of perpetuating its own position. The concentration of economic power separate from ownership, has, in fact, created economic empires, and has delivered those empires into the hands of a new form of absolutism, relegating ‘owners” to the position of those who supply the means whereby the new princes may exercise their power.
“The recognition that industry has come to be dominated by these economic autocrats must bring with it a realization of the hollowness of the familiar statement that economic enterprise in America is a matter of individual initiative. To the dozen or so men in control, there is room for such initiative. For the tens, or even hundreds of thousands, of workers and of owners in a single enterprise, individual initiative no longer exists. Their activity is group activity on a scale so large that the individual, except he be in a position of control, has dropped into relative insignificance. At the same time, the problems of control have become problems in economic government.”
44 This is the signification of statements such as: “The combination of economics with law is more likely to come from the exploration of case law by economists because the concrete problems of particular sets of fact are all that is really needed to bring about an approximation of legal and economic definition.” Cooke, C. A., “The Legal Content of the Profit Concept,” 46 Yale Law Jour. 436, 437 (1937)Google Scholar.
45 Cf. Merriam, , Political Power; Its Composition and Incidence (New York, 1934)Google Scholar.
46 Cf. Hutchins, , The Higher Learning in America (New Haven, 1936)Google Scholar.
47 “A word is not a crystal, transparent and unchanged; it is the skin of a living thought andmay vary greatly in color and content according to the circumstances and the time in which it is used.” Holmes, J., Towne v. Eisner, 245 U.S. 418, 425 (1917).
48 A few: “legal entity,” “rule of reason,” “police power,” “affected with a public interest,” “flow of commerce,” “public purpose”, “public use,” “public utility,” “based on reason,” “necessary and proper,” “common carrier,” “class legislation,” “doing business,” “good cause,” “good faith,” “impairing obligation of contract,” “liberty of contract,” “privileges and immunities,” “beyond a reasonable doubt,” “common nuisance,” “quasi,” “reasonable,” “unlawful,” “de facto,” “current value,” “cost of replacement,” “delegation of legislative power,” “eminent do main,” “full faith and credit,” “best interests of the public,” “combination in restraint of trade,” “equal protection of the law,” “good reason to believe,” “sale,” “unfair competition,” “denial of civil rights,” “burden upon interstate commerce,” “fair trial,” “immaterial,” “fair and reasonable (value) (price) (compensation),” “just cause,” “conspiracy in restraint of interstate commerce,” “unreasonable search and seizure,” “meeting of minds,” “market value,” “property,” “liberal construction,” “implied,” “just and reasonable rate,” “lessening competition to a substantial degree.”
49 Cf. Frank, , Law and the Modern Mind (New York, 1930)Google Scholar.