A special document on the 110th anniversary of Lochner v. New York: Putting the contract in "liberty of contract"

|The Volokh Conspiracy |

Friday marks the 110th anniversary of the Supreme Court's landmark decision in Lochner v. New York. Lochner held that a New York State law that restricted the working hours in bakeries to ten hours a day was unconstitutional as a violation of the right to liberty of contract, protected by the Due Process Clause of the Fourteenth Amendment. Lochner didn't make that much of a splash at the time, but came to be reviled by both left and right, for different (and often ahistorical) reasons, as one of the worst Supreme Court decisions of all time. My 2011 book Rehabilitating Lochner covers the fascinating history of the case and its influence on constitutional debate.

The backstory to the prosecution of Utica, New York baker Joseph Lochner for violating the ten-hour law is itself very interesting. Lochner was a Bavarian immigrant who opened a small, unionized bakery in 1894. He hired a young man by the name of Amand [sometimes rendered as Armand or Amond or Aman] Schmitter [sometimes rendered as Shmitter or Smither] to work in his bakery, and let him live in his house.

Living in one's employer's house was against union rules, and the union demanded that Lochner evict Schmitter. Schmitter appealed to the union for an exemption, "I cannot live with my folks, and do not want to live in a boarding house," but the union was unmoved. Lochner chose to deunionize rather than throw out Schmitter, and the union in turn launched an unsuccessful boycott against Lochner.

After that, it seems it was open warfare between the union and Lochner. One tool the union could use against him was New York's new ten-hour law, passed in 1895. The law had no provision for overtime, and it came with criminal, not civil, penalties for violation-it's harshness and inflexibility probably explains why it was the only maximum hours law invalidated by the Supreme Court.

The problem with the law for a small baker like Lochner is obvious; during a seasonal rush like Thanksgiving, or in a situation where a big order is due but something goes wrong, breaking the law could be almost unavoidable, given that the law didn't provide for overtime under any circumstances or at any pay.

As I recount in my book, at the union's instigation Lochner was prosecuted for violating the law in 1899 and fined twenty dollars. When that failed to persuade Lochner to run a union shop, the union launched another unsuccessful boycott against him.

Schmitter opened his own bakery in 1899, but went back to work for Lochner at some point thereafter. Eventually, the state Master Bakers Association raised funds to challenge the constitutionality of the law, and it appears that Lochner volunteered to arrange a test case, as a criminal complaint was filed against him by none other than his longtime associate and (as newspaper accounts suggest) friend Armand Schmitter.

All that's recounted in the book.

What I didn't know when the book was published was that in 1896, Lochner and Schmitter entered into a "partnership agreement" that seems clearly designed to evade the ten-hour law by designating Schmitter as a partner rather than as an employee. I received a copy of this document from Lochner's great-granddaughter, with whom I've been in touch. Among other fun details, Lochner signed his name as "Josef," not "Joseph" as it appears in the case reports.

Lochner 1896 copartnership (2)