Lochner and Child Labor

No U.S. court ever held that child labor laws violate a right to liberty of contract.

|The Volokh Conspiracy |

The Supreme Court's decision in Epic Systems v. Lewis yesterday, holding that as matter of federal law arbitration agreements take precedent over class action lawsuits, saw many liberals comparing the decision to Lochner v. New York, an infamous 1905 case in which the Court held that the right to "liberty of contract" superceded a state law prohibiting bakers from working more than ten hours a day, sixty hours a week.

Many myths have sprung up over the years about Lochner, and I have tried to dissect these myths in my academic work, most prominently in my book, Rehabilitating Lochner. Some of these myths are complicated. One that is not is the myth that the Supreme Court invalidated child labor laws as a violation of liberty of contract. This myth has roared to life once again in commentary on Epic Systems.

I've blogged about this in the past, but it's obviously worth repeating: In the middle of the so-called Lochner era, the Supreme Court upheld state regulation of child labor by a 9-0 vote (Sturges & Burn Mfg. Co. v. Beauchamp, 231 U.S. 320 (1913)). I've blogged before that I'm not aware of any court in any American jurisdiction ever holding that child labor laws violate a constitutional right to economic freedom or "liberty of contract", and no one has written in to correct me. For examples of state courts upholding child labor laws within a few years of the Lochner decision, see Ex Parte Weber, 149 Cal. 392 (1906); United Steel Co. v. Yedinak, 87 N.E. 229 (Ind. 1909); Bryan v. Skillman Hardware Co., 76 N.J. 45 (1908); People v. Taylor, 192 N.Y. 398 (1908); State v. Shorey, 86 P. 881 (Ore. 1906)).

All forty-eight states passed child labor laws before 1937, when Lochner was overruled. Liberty of contract concerns were not a barrier to the spread of such legislation. Even constitutional law treatise author Christopher Tiedeman, who took many radically libertarian positions (for his day)–he argued, for example that drug laws and laws banning interracial marriage, upheld 9-0 by the Supreme Court, were unconstitutional–acknowledged that child labor laws were constitutionally valid.

The origins of the myth that the Supreme Court held child labor laws violated liberty of contract lie in the fact that that Supreme Court did invalidate federal child labor laws, not as a violation of liberty of contract, but as beyond Congress' regulatory power under the Commerce Clause. These cases were decided in the midst of what has become known, rather ahistorically, as the "Lochner era." Many commentators have sloppily conflated and continue to conflate the Supreme Court's liberty of contract jurisprudence with its commerce clause jurisprudence, because both took place during this "era." But as the child labor example shows, the Court sometimes upheld certain types of laws as within the states' police power, but held that that the same laws were unconstitutional as beyond the commerce power if imposed nationwide by Congress.

UPDATE: Damon Root explains Epic Systems, and recounts the back and forth between Justices Gorsuch and Ginsburg over Lochner, here. I may have more to say about the back and forth later.

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  1. “Look, kid, forget what they told you about Santa Claus, only someone your size can fit in this chimney. Now go in and scrub!”

    1. We get it. Reading hurts your head. Can’t even make it to the third paragraph.

      1. I am aware that the Lochner case had nothing to do with child labor.

        Can’t I tell tasteless jokes any more?

        Or maybe that was more of a seasonal joke, more suitable to Christmas?

        1. Don’t worry about humorless jerks.

  2. I’ve never understood how people even thought that was true. I know you give the likely reason why, but simple thought process would say so anyway. It has never been disputed that under common law contracts minors are de factor incompetent to form an enforceable contract, so how can anyone think a court came to a decision that the “liberty of contract” can extend to a situation where even contract law says you can’t.

    1. I think you’ve got that backwards: Constitution trumps statutory and common law, not the other way around. So if the Constitution actually DID give minors freedom of contract, contract law would have to give way.

      1. But if the Constitution DID give minors freedom to contract, and contract law had given way, we’d know about it.

        Since minors do not have general freedom of contract, we can deduce that contract law does not respect the contracts of minors, and from that, we can deduce that the Constitution does not require that contracts of minors be upheld. The result is the same no matter which end you start at, so nobody has anything “backwards”.

        1. That’s circular reasoning, which fails at the “the courts obviously would be upholding the Constitution” step.

          1. You’re not good at logic.

            1. No, actually I am.

              “Since minors do not have general freedom of contract, we can deduce that contract law does not respect the contracts of minors, and from that, we can deduce that the Constitution does not require that contracts of minors be upheld. ”

              Your missing premise is that, IF the Constitution did require that the contracts of minors be upheld, judges would give a damn. You’ve excluded the possibility that the judiciary might just be not upholding the Constitution.

              Mind, I don’t think minors do have that freedom to contract, or that the Constitution protects it. But your reasoning back from contract law to what the Constitution must be sucks.

    2. Minors form enforceable contracts all the time. They were doing it in the past as well; otherwise why would you need a congressional prohibition in the first place?

      1. “Minors form enforceable contracts all the time. They were doing it in the past as well; otherwise why would you need a congressional prohibition in the first place?”

        The first part is true if complicated but as to the second, one possible reason would be that the minors would be under the control of their parents and obligated (at least pressured) to follow their commands.

        1. The DOL presumes that children work:

          “The federal child labor provisions, authorized by the Fair Labor Standards Act (FLSA) of 1938, also known as the child labor laws, were enacted to ensure that when young people work, the work is safe and does not jeopardize their health, well-being or educational opportunities. These provisions also provide limited exemptions.”

          The FLSA itself exempted child agricultural workers, and pretty much only banned “oppressive” jobs. Children were doing those jobs before, and were getting paid for them, and would have been entitled to sue for wages if their employer refused to pay for the work. Pre-FLSA.

    3. Irrelevant since the minor is not the one forming the contract. Even in the days when child-labor was common, the employment contract was formed by a parent or guardian.

      Parents can definitely form enforceable contracts that bind their children. I’d be that you have yourself every time you took your kid to the hospital. We no longer allow parents to bind their children into labor contracts (mostly). But it is the nature of the contract, not the mere fact that it is in the name of a minor, that makes it problematic.

      1. I don’t think this is correct.

  3. Damon Root claims that Ginsburg “accused Gorsuch of seeking to resurrect the Supreme Court’s pre-New Deal Lochner-era contractual ‘liberty’ decisions,” and that Gorsuch effectively countered Ginsburg by arguing that during the Lochner era “this Court regularly overrode legislative judgments” and “instead of overriding Congress’s policy judgments, today’s decision seeks to honor them.”

    I think Gorsuch erected a strawman.

    Ginsburg’s only reference to Lochner was to when the Court upheld the NLRA in a retreat from the Lochner era, coming at the end of a section explaining how workers had to organize in order to fight back against one-sided conditions dictated by employers. I believe Ginsburg wasn’t criticizing the Lochner era because it overrode legislative judgments per se, but rather because those judgments were being overridden based on the false belief that employers and employees were engaging in a mutual exercise of liberty when in fact employees were being screwed by employers. And, that the Epic court is making the same mistake in its statutory interpretation of how the FAA and NLRA work in tandem.

    Or putting it more succinctly, by accepting the Lochner-era belief about mutual employer-employee liberty, the Court is not honoring Congress’s policy judgments. It is undermining them.

    1. I think Gorsuch erected a strawman.

      I would say you’re misreading both Gorsuch and Ginsburg. If what you say is correct, there would be no cause for Ginsburg to even reference Lochner in the first place or quote Bork. Indeed, she was using Lochner as an epithet to cloud both sets of arguments, not to shed any light. In other words, Lochner for her was a source of straw to erect strawmen with. Gorsuch was merely tossing the strawmen aside.

    2. I think Gorsuch erected a strawman.

      I would say you’re misreading both Gorsuch and Ginsburg. If what you say is correct, there would be no cause for Ginsburg to even reference Lochner in the first place or quote Bork. Indeed, she was using Lochner as an epithet to cloud both sets of arguments, not to shed any light. In other words, Lochner for her was a source of straw to erect strawmen with. Gorsuch was merely tossing the strawmen aside.

    3. Or putting it more succinctly, by accepting the Lochner-era belief about mutual employer-employee liberty,

      The Court’s decision in Epic Systems had nothing to do with employee liberty. It was not a case about whether workers have a constitutional right to enter into arbitration agreements. It was about statutory interpretation.

      1. Ginsburg argues that Gorsuch’s statutory interpretation that the NLRA doesn’t override the FAA is driven by his belief that employer-employee arbitration agreements are an exercise in mutual employer-employee liberty. If instead you believe these arbitration agreements are one-sided, take-it-or-leave-it deals that screw the employee, Ginsburg argues you will conclude NLRA overrides the FAA.

        1. If instead you believe these arbitration agreements are one-sided, take-it-or-leave-it deals that screw the employee, Ginsburg argues you will conclude NLRA overrides the FAA.

          And that validates Gorsuch’s argument that Ginsburg confuses judging with policy making.

          1. In any case, it still wouldn’t have anything to do with a constitutional liberty of contract.

          2. Since both Gorsuch and Ginsburg relied on their respective beliefs on the nature of these arbitration agreements to determine whether “other concerted activities for the purpose of collective bargaining or other mutual aid or protection” overrode the FAA, both are equally “guilty” of confusing judging with policy making.

            And, you are erecting the same strawman that Gorsuch did (Ginsburg isn’t claiming the case is about a constitutional liberty of contract right)

            1. And, you are erecting the same strawman that Gorsuch did (Ginsburg isn’t claiming the case is about a constitutional liberty of contract right)

              Uh, she’s the one who brought up Lochner, and that’s precisely what Lochner is about.

              1. In her single reference to Lochner, Ginsburg noted the objective fact that “When a case challenging the NLRA’s constitutionality made its way here, the Court, in retreat from its Lochner-era contractual-“liberty” decisions, upheld the Act as a permissible exercise of legislative authority.”

                So, how does that Lochner reference amount to a claim that Epic is a case about a constitutional liberty of contract right?

          3. “And that validates Gorsuch’s argument that Ginsburg confuses judging with policy making.”

            Expanding on David N’s comment – ginsburg misconstrues the NLRA statute to reach her preferred policy result.

            The same with her dissent in Encino Motors , Ginsburg misconstrues the FLSA to reach her preferred policy result.

            Likewise in Lily Ledbetter.

    4. “…based on the false belief that employers and employees were engaging in a mutual exercise of liberty when in fact employees were being screwed by employers.”

      Why is the mutual exercise of liberty inconsistent with one side of the bargain getting screwed? The employees weren’t slaves.

      1. Isn’t the default (at-will employment) that an employee’s just a slave who gets paid and can quit?

        1. “…an employee’s just a slave who gets paid and can quit?”

          Read that again, but very slowly. If you still think the employee is a slave, then the employer is also a slave, just one who gets to pay the worker, and can fire them, too.

      2. I suggest it might have something to do with a decision which creates special liberty for one party which is denied to the other party. Businesses are at liberty to form a corporation and use it to create contract terms they apply alike to all workers. Workers are prohibited from negotiating contracts collectively, and thus from forming a mutual interest corporation to apply their preferred contracts alike to all businesses. Not a mutual exercise of liberty at all.

        More generally, how come libertarians balk when the notion of freedom of contract is bruited on behalf of keeping corporate power in check?

        1. “Businesses are at liberty to form a corporation and use it to create contract terms they apply alike to all workers. Workers are prohibited from negotiating contracts collectively, and thus from forming a mutual interest corporation to apply their preferred contracts alike to all businesses.”

          Workers are at liberty to create contract terms they apply alike to all employers. I used to be a worker and I remember doing this. For instance, one of my terms that I applied to all employers was a minimum compensation that I was willing to accept.

          Workers negotiate collectively all the time. They’ve been doing it throughout human history. The American Federation of Labor was formed 50 years before the NLRB.

          Re: libertarians, I don’t know and don’t want to answer on their behalf. I can tell you that I counsel clients daily not to sign contracts that are damaging to their interests, but they don’t always listen. “corporate power” isn’t a mystical force drawing metaphysical power. Its power is only as large as the people who engage with it allow.

        2. This decision has nothing to do with unionization. It is about post contractual terms. The left wanted to change contractual terms post agreement. Emoyees we’re free to unionization regardless of this case. It was about class action suit sans unions.

          It boggles the mind how much liberals hate arbitration. Virtually every study done on arbitration vs class actions show that the individualized benefit for arbitration far exceeds the relief from class actions. Are liberals that far into trial lawyers pockets?

          1. I seem to recall Bernstein posting about how the Lochner era was hostile to unions…

            1. Some factors that were extant during that era were hostile to unions. Which created a feedback loop, creating conditions that created and fueled demand for unions.

              Some people suggest that today union activity is dropping, in large part because the rise of the administrative state reduced the need for union power to counteract management.

          2. “It boggles the mind how much liberals hate arbitration.”

            The effectiveness of arbitration as a replacement for courts depends in large part on the nature of the arbitrators. In particular, the need for arbitrators who are not beholden to one party in the arbitration, and a need for transparency in proceedings. If either are lacking, then arbitration is fundamentally unfair, and should not be considered a suitable replacement for a day in court.

          3. Virtually every study done on arbitration vs class actions show that the individualized benefit for arbitration far exceeds the relief from class actions.

            Citation needed.

        3. There’s a word for “workers . . . forming a mutual interest corporation to apply their preferred contracts alike to all businesses.” It’s called starting a business.

          1. Any reason that business can’t be a labor union?

      3. Isn’t the history of the Lochner era that functionally, the right to contract meant workers were damn near?

        Well, nearer to serfs than slaves since they couldn’t be sold. But there was a race to the bottom for people to work maximum hours for substance living standards and no benefits.

        I know Bernstein disputes this, but his is the outlier view so far.

        1. Funny thing about the “race to the bottom,” which is that worker wags and working conditions improved throughout the period, despite a huge amount of immigration created what Marxists would claim is a reserve army of labor.

          1. I admit my economic history isn’t really up to a debate on such fundamental questions of statistical fact; I can only speak to the threshold issue of ‘your narrative is disputed by this other narrative.’

            But is the metric in question average wages or median wage? And how are working conditions measured, because that’s directly contradicted by not just undergrad but what I learned in law school.

            1. I’d tell you to sue your undergrad and law school professors, but your tuition contract probably has an arbitration clause…

              Anyway, just to give you an example, the law in Lochner restricted bakers to 60 hours a week. The law was invalidated. By ten years after the decision, almost no bakers in the United States worked more than 60 hours a week, thanks to economic growth, better technology, etc. When society gets wealthier, working conditions improve. Apparently, though, everyone is being taught that but for unions and government, “big corporations” could simply impose any conditions they want. Oy.

            2. Good question, Sarcastr0, and I agree that you should get your money back from both your undergrad and law schools.

              By every measure, US wages and working conditions improved. Per capita worker deaths dropped. So did per capita injuries. Wages at every level improved and income disparity actually decreased during most of that period. Absolute numbers of people “gainfully employed” shot up. The distribution of work also changed radically. At the start of that era, workers were about evenly split between agricultural and non-agricultural positions. A mere 10 years into it, agricultural positions had declined to about a third despite the total number still increasing. Literacy increased. Buying power increased. Hours worked per week declined. Leisure pursuits and the time to pursue them in all increased. Environmentalism actually got its start during this period. That was not possible until society generated enough excess resources that we could start to afford think further ahead than the next famine.

              1. (continued)
                Note that WW1 occurred right in the middle of the Lochner era. The Bureau of Labor Statistics conducted several in-depth studies and concluded that the war had little to no impact on wage data. Not until the Great Depression do the favorable trends reverse. (And while we can argue for years about the causes of the Great Depression, it seem abundantly clear that the Lochner decision 25 years before wasn’t among them.)

                The bottom line is that there is no “race to the bottom” visible in the historical record.

          2. Professor Bernstein, I suggest the notion that Lochner-era immigration created a durable reserve army of labor would itself be an outlier in academic history circles. It’s not an historical era I have paid attention to, but somehow it filtered into my noggin that the underlying labor condition in the U.S., from before the founding era until fairly recently, was labor shortage, not labor surplus. Hence the huge amount of immigration. A moment’s thought ought to make you skeptical that giant waves of economic immigrants were flooding toward an economy which typically featured a labor surplus.

            Within that general condition there were of course cyclical variations. That had more (at least in the Marxist view) to do with the way the capitalist system operates than with the underlying dynamics of the labor market.

          3. Is it only Marxists who dislike immigrants?

            Funny. That is not my impression.

        2. I wasn’t alive from 1897 to 1937. The people I have spoken with who were did not refer to themselves as slaves back then. The bottom 90% of Americans have a lower percentage of wealth today than they did at any time from 1917-1937, so we probably shouldn’t speak unfavorably of the Lochner Era’s “race to the bottom”. I’m sure it was generally a lot worse to be a worker pre-internet, for a lot of reasons. But now we complain about robots terking owher jerbs. If the idea is the only thing hunter-gatherer humans needed to improve their lot in life were collective bargaining, minimum wage and overtime laws, and guaranteed pensions, I’m skeptical.

          1. More serfs than slaves, as I said. No selling families and forced breeding of matched pairs.

            But as for serfdom, there are arguments we have managed to find different ways to get to the same place these days. Used to be from the right re: government, but lately I’m hearing it from the left re: wages.

            That being said, I get the definite impression that I would much rather be a laborer today than back then – wouldn’t you?

            Bottom line – capitalism in it’s pure form has excesses, just as does government. Without each to reign in the other you get positive feedback that best case ends in feudalism. Lochner was the government screwing with markets to even accelerate that process. I hear lots of people saying ‘actually, things improved in that period’ but not a lot of numbers. But, of course, I don’t have numbers either, nor do I have the expertise to evaluate the merits of said numbers. Which is important since we have motivated statisticsing on both sides.

            I’ve never bought the robot doomsaying.

            1. To dispel all doubt, I’d much rather be a laborer today than in the past, and I’d prefer to be one in the future than in the present.

              I assumed that there were laws in the past against selling families and forced breeding of matched pairs, even in the 1930s. Maybe I need to read more history. If we don’t have those laws on the books today, please assume I support regulations that prohibit non-consensual forced breeding, or the selling of human beings.

              Re: capitalist excess, the issue is whether that’s what happened. Do labor regulations improve the lot of workers? I don’t think the answer is obvious. I have employees who have asked me if they can opt out of the FLSA so that they don’t have to fill out paperwork. I’ve told them no, we must pay them overtime, which means more paperwork. They hate me for it. Since I know there are literally thousands upon thousands of exempt workers in the US, the FLSA strikes me as an odd law.

            2. “That being said, I get the definite impression that I would much rather be a laborer today than back then – wouldn’t you?”

              I would much rather be anything today than that same thing back then, or probably at any point in history.

              “Bottom line – capitalism in it’s pure form has excesses, just as does government. Without each to reign in the other you get positive feedback that best case ends in feudalism.”

              Capitalism in it’s pure form doesn’t lead to feudalism.

              1. We are at the point where one side points to historometrics that prove this, and the other side points to historometrics that prove something exactly opposite.

                If you want to know what life is like without labor regulations, look at illegal immigrants. Paid under the table and unregulated, their lot in life sucks, but they keep coming back because it’s better than what Mexico has.
                ========
                jph – Wealth begets wealth more than does merit. This means a pure market is fundamentally unstable.

                1. “jph – Wealth begets wealth more than does merit.”

                  No it doesn’t.

                  “This means a pure market is fundamentally unstable.”

                  A stable market isn’t the goal.

                  1. Leaving aside your inexplicable initial comment, unstable is not the same as dynamic – it is a flaw in the entire system.
                    A system of positive feedback like wealth begetting wealth will eventually run away towards a single person having all the wealth.

                2. “If you want to know what life is like without labor regulations, look at illegal immigrants.”

                  Or drug dealers.

                  “Wealth begets wealth more than does merit. This means a pure market is fundamentally unstable.”

                  To the extent that you can define merit as the ability to create wealth, this doesn’t matter. Once you create some wealth, it’s much easier to create more wealth. But it’s still wealth.

                  1. To the extent that you can define merit as the ability to create wealth, this doesn’t matter

                    That’s…not how anyone defines merit though.

              2. No doubt, an expert could distinguish the ante-bellum plantation economy in the South from feudalism by comparing all sorts of particulars. Most notably, feudal lords, at least theoretically, had specific protective obligations toward serfs that slave masters did not have toward their slaves. But is there any question that capitalism in its pure form did lead to the plantation economy?

                If that isn’t true, what are we to make of Locke’s investments in the African slave trade, or of his advocacy for the subjugation and dispossession of Indians on capitalistic principles, and on behalf of the plantation economy? Where has capitalism ever been more purely practiced than in the American South during the heyday of the plantation system?

                1. “But is there any question that capitalism in its pure form did lead to the plantation economy?”

                  Yes, yes there is.

                  “Where has capitalism ever been more purely practiced than in the American South during the heyday of the plantation system?”

                  Almost everywhere that’s made an attempt to practice capitalism has been more pure than the American South during the heydey of the plantation system.

                  1. I’m not sure I agree, because I think it’s a mistake to think of slavery as simply a consequence, or non-consequence of capitalism.

                    Economic systems operate within a framework of law. If the law says it is just fine to use force to bring Africans to North America and force them to work as slaves then, assuming this is a profitable activity, and sufficient force is available, then a capitalistic system will in fact bring slaves from Africa to North America.

                    In a market economy people do that which is legal and profitable.

                    What would stop slavery? Only a change in the law, or the process becoming uneconomical.

            3. In short, the real GDP per worker went from about $12,000 in 1890 to about $65,000 in 2000.

              You’re pretty much dealing with what is called “survivor-ship bias” in that the data that does exists for wages and prices from say, 1850, might not be representative of what wages and prices actually were in 1850.

              “Standard of living” is usually measured in inflation adjusted annual income. We have decent data for that. Then once you have an inflation adjusted annual income, you look at the costs commodities, such as food, which there is data for, as well as comparable “bundles of goods.” You can go as far as looking at how many hours would have to be worked for a class of worker to buy certain good.

              Things get dicey though when you try to take into account things like the a copy of the Encyclopedia Britannica in 1895 would cost the average worker 140 hours to earn, but Wikipedia today is free to the user. Also new Model T could be earned with less hours worked than a half year’s wages, but today a decent new sedan costs half the median wage, but a new car today is safer, quicker, and will last 12-15 years.

              1. 1890 to 2000
                Ummm what era do you think we’re arguing about?

                I’m not anti-capitalist just because I think post-New Deal was better than pre-New Deal.

                1. The 1890 to 2000 number was readily available at my fingertips, so I cited it. I just had to remind myself what year Lochner was, 1905. Between 1900 and 1930, real GDP per worker went from $18k to $25k. It takes a huge dip in the Depression. Pre-New Deal and Post-New Deal comparisons of standards of living, with a standard that is just that, a standard, have to take into effect that EVERYBODY’s standard of living dropped due to the Depression. Oh, and those are year 2000k dollars.

                  If I am understanding you right, you want to add into a comparison of standards of living over time New Deal worker safety laws and such? That would take some serious economatrician work, and I don’t know has been attempted. At best, there is worker fatality data from the early 19th century till today, and there were dramatic drops (which vary greatly by industry), but attributing it to just government regulations is sketchy, as those vary by industry too.

                  Point remains, that at the same time Lochner occurred, despite the Dickens-esque dystopia that is in the popular consciousness about the lives of workers in that era, the fact is clear that the end of the 19th century through the end of the 20th saw a dramatic surge of unprecedented human flourishing, and most of it through a time of minimal government interference.

                  Now, would I like to live in a world without OSHA? No.

                2. The 1890 to 2000 number was readily available at my fingertips, so I cited it. I just had to remind myself what year Lochner was, 1905. Between 1900 and 1930, real GDP per worker went from $18k to $25k. It takes a huge dip in the Depression. Pre-New Deal and Post-New Deal comparisons of standards of living, with a standard that is just that, a standard, have to take into effect that EVERYBODY’s standard of living dropped due to the Depression. Oh, and those are year 2000k dollars.

                  If I am understanding you right, you want to add into a comparison of standards of living over time New Deal worker safety laws and such? That would take some serious economatrician work, and I don’t know has been attempted. At best, there is worker fatality data from the early 19th century till today, and there were dramatic drops (which vary greatly by industry), but attributing it to just government regulations is sketchy, as those vary by industry too.

                  Point remains, that at the same time Lochner occurred, despite the Dickens-esque dystopia that is in the popular consciousness about the lives of workers in that era, the fact is clear that the end of the 19th century through the end of the 20th saw a dramatic surge of unprecedented human flourishing, and most of it through a time of minimal government interference.

                  Now, would I like to live in a world without OSHA? No.

        3. You could have you know… Read the article. Lochber was a federalist case, not a labor case. State laws we’re already passed prior to lochber being heard. Reading is fundamental.

          1. Lochner is a pretty famous case, Jesse.

            1. And, of course, is emblematic of an entire generation of Supreme Court jurisprudence.

    5. “when in fact were being screwed by employers.”

      Actually, it turns out in practice that employment related arbitration is not so lopsided in favor of employers after all.

      Could your business withstand a tsunami of individual wage and hour claims?

      Just ask Buffalo Wild Wings, which apparently will not only have to contend with a class action, but also 400 additional arbitrations. That’s 400 arbitration filing fees that the company will have to split with the employees, 400+ depositions, 400+ sets of written discovery. And the cost of defense skyrockets all of a sudden. Plus, for each case the company loses, it’s going to have to pay each plaintiff’s counsel reasonable attorney’s fees and costs. That stinks.

      Whatever Happened To ? The Wage Claim of “Exotic Dancers” As Employees?

      It seems that the dancers won big in an arbitration proceeding and then asked the court to “confirm” the award ? making the whole thing public.

    6. Ginsburg’s dissent in Epic system is another one of her dissents which boils down to – this is what the law should be (based on her policy preference) vs this is what the law is.

      Same with her dissent in Encino Motors
      Same with her dissent in Ledbetter v goodyear

      Similar to Rigelsen statement – Ginsburg’s use of Lochner was a ruse to guise her policy choice as a constitutional argument.

      1. First, I thought there was a legal dispute as to which of two federal statutes applied. Ginsburg was hardly making stuff up.

        Second, I myself think the majority’s reading of the NLRA is a stretch. Class actions are not a “concerted activities for the purpose of collective bargaining or other mutual aid or protection?” Apparently this is because they are not specifically mentioned here. But by that logic there are zero “other” concerted activities.

        Oh well. Corporate toadyism strikes again.

        1. “First, I thought there was a legal dispute as to which of two federal statutes applied.”

          No, the dispute was over whether BOTH statutes apply or whether the NLRA carves out an exception to the FAA for employees.

          “Second, I myself think the majority’s reading of the NLRA is a stretch.”

          I kind of agree, but I also think that the dissents reading of the NLRA implicitly carving out an exception to the FAA for employment contracts as just as much of a stretch.

          If there is a union contract, the union ought to be able to negotiate over the arbitration requirement. Also, collective arbitration could be allowed, However, even individual arbitration does not bar collective action, see the two links I posted above, the employees could make arbitration very painful for the employer by acting in concert to bury the company with hundreds or, if the company is big enough, thousands of simultaneous arbitration cases.

          And if the employees win in arbitration as the exotic dancers did, the end result would likely be much more expensive for the employer than a class action lawsuit.

          1. Matthew,

            Your more precise phrasing is indeed accurate.

            So if both arguments are stretches, then what?

            By the way, your link to the exotic dancers case seems to go to the same place as the other link in your comment.

            1. “By the way, your link to the exotic dancers case seems to go to the same place as the other link in your comment.”

              Well, since the topic is employers screwing their employees, just google “screwing exotic dancers” and I’m sure you’ll find it.

              1. If I don’t find that I might find some other interesting stuff.

            2. “So if both arguments are stretches, then what?”

              Probably you have to go to Congress to fix it.

              The only solution I can see the courts being able to impose is class action arbitration. Enforce the arbitration clause, in general, but void any requirement that the arbitration be one-on-one in recognition of NLRA protection of concerted action.

              However, the employees have other choices. Work together to bury the employer in one-on-one arbitration cases. This will be far more costly for the employer than a class action lawsuit, both to defend and in in the even of losses.

            3. Fixed link for the exotic dancers arbitration article.

              Whatever Happened To ? The Wage Claim of “Exotic Dancers” As Employees?

              1. Still not fixed. Doesn’t go anywhere.

        2. “Second, I myself think the majority’s reading of the NLRA is a stretch. Class actions are not a “concerted activities for the purpose of collective bargaining or other mutual aid or protection?” Apparently this is because they are not specifically mentioned here. But by that logic there are zero “other” concerted activities.”

          Well, we know that a class action isn’t collective bargaining, so we are left with the claim that it is “concerted activity for the purpose of . . . other mutual aid or protection.” Your reading would require us to believe that this was meant to cover every conceivable activity including activity that is specifically covered by another statute. Would murdering the boss be covered by this if it was plausibly for the “mutual aid” of the workers?

        3. bernard11|5.23.18 @ 11:08AM|# – “First, I thought there was a legal dispute as to which of two federal statutes applied. Ginsburg was hardly making stuff up.”

          Ginsburg has to misconstrue the statute to argue that NLRA applies to the facts in the case – inserting words and meanings which arent in the statute, etc.

          fwiw – i think most arbitration agreements suck and screw over the individual in most all instances.

          1. other mutual aid or protection.” Your reading would require us to believe that this was meant to cover every conceivable activity including activity that is specifically covered by another statute.

            And your would have us believe it covered nothing. And what other statute covers class action?

            Would murdering the boss be covered by this if it was plausibly for the “mutual aid” of the workers?

            I don’t think it applies to criminal conduct.

            i think most arbitration agreements suck and screw over the individual in most all instances.

            Well, we agree on that, anyway.

            1. The NLRA gives other examples of concerted actions available to employees, so it’s not true that it’s class actions or nothing.

              “[Notification of intention to strike or picket at any health care institution] A labor organization before engaging in any strike, picketing, or other concerted refusal to work at any health care institution shall . . .

              The term “strike” includes any strike or other concerted stoppage of work by employees (including a stoppage by reason of the expiration of a collective-bargaining agreement) and any concerted slowdown or other concerted interruption of operations by employees.”

      2. this is what the law should be (based on her policy preference) vs this is what the law is.

        Since this is a statutory interpretation case, the same could be said of Gorsuch. It all depends on what “the law is.”

    7. I think Ginsburg trolled Gorsuch by putting in a reference to Lochner and he got baited. She didn’t need to include that but she also didn’t say what Gorsuch said she did.

  4. Why would anyone think that a court would invalidate child labor laws on a “freedom to contract” theory? Minors don’t have a general right to contract in the first place.

    1. Maybe some people view children as property of their parents?

      1. Not so much property, but as their children, whom parents have parental authority over.

        And thus exercise the children’s own right in their place, until they become adults.

    2. Minors do have a general right to contract.

      1. The enforcability of the contracts is more complicated.

        Minors do clearly have a right to contract — a purchase at a movie is a sort of contract after all and they go to movies. etc.

        1. If they perform work they are also entitled to wages for that work. If I enter into a contract with a minor, and the minor performs, I can’t refuse to perform on the basis that the contract is void because minors aren’t allowed to contract.

          The general rule is that minors may contract but may void the contract. There are exceptions (bank accounts, for instance). But minors have a general right to enter into and enforce agreements.

    3. Hmm. I had always understood that minors to have a right to contract but that the contract is voidable by the minor.

  5. I started working on the farm when I was 8-10 years old. Work is good for you.

    1. So good, we should make it economically necessary!

      1. Strawmen are often found in the farms of sarcastros mind.

        1. My fallacious post was made possible by the irrelevance of the post I was replying to.

          This was, in fact, the purpose of my post.

          1. Mine was off-topic. Yours was nonsensical.

            1. Your post about work being good for kids in the thread about the child labor laws? Sounds more like you regret the obvious implication on second thought.

  6. “No U.S. court ever held that child labor laws violate a right to liberty of contract.”

    Justice Gorsuch has been on the Court for barely a year, Prof. Bernstein. He’s battling a century of liberal do-goodery. Give the guy a chance!

  7. “but as beyond Congress’ regulatory power under the Commerce Clause.”

    If only – – – – – –

  8. “conflate the Supreme Court’s liberty of contract jurisprudence with its commerce clause jurisprudence”

    The net result was to reduce the ability of the government to regulate the work place so the confusion is somewhat unsurprising. The value of fully understanding the era is noted and Prof. Victoria Nourse (who the writer of this piece has appeared with) in “Two Lochners” provides one nuanced account.

    1. Why should the federal government have unfettered ability to regulate the work place?

      1. Who said, “unfettered?”

    2. Why should the federal government have unfettered ability to regulate the work place?

  9. As a practical matter, in the present day the overwhelming end run around child labor laws is through illegal immigration. After all, if you can have any convenient name and any SSN, you can also have any birth date.

    In my workaday world before retirement this was a frequent complaint among young people of a certain class. Native-born American citizens who dropped out of high school would be aced out of lucrative construction work and apprenticeship positions because they had real birth certificates. In the USA in the Obama era that was a significant handicap! Still is, the law changes slowly.

    Worse yet, young-looking illegal immigrants can play it the other way around when doing crime. They can produce ID that indicates they are years younger than their actual age. Now they will be treated as juveniles in the court system–maybe not even be deported for felony offenses under DACA!

    It’s like the world of Alice in Wonderland, in legal fantasyland.

    1. Only illegal immigrants know how to get fraudulent documents.

      1. At the certain risk of having this construed as a racist remark, that for the most part would be true. We humans are cultural creatures. If your country of origin had a robust commerce in fraudulent American documents and licenses going on, and so does the first neighborhood in which you reside once you get here, it will be obviously easier for you to acquire such things.

        It takes a village to produce a really good creative identity.

        1. I could add, that in my experience, a good false identity could spawn offshoots and these would be passed around within extended families, never really being retired.

  10. “saw many liberals comparing” “This myth has roared to life once again”

    Citation needed.

  11. For the non-lawyers here, a great summation of the Lochner case from a libertarian perspective is this one from EconTalk: http://www.econtalk.org/archiv…..ein_2.html

  12. From the decision written by Justice Gorsuch, “It is this Court’s duty to interpret Congress’s statutes as a harmonious whole rather than at war with one another.”

    How can Justice Gorsuch come to a ‘harmonious’ decision when all’s he did was simply ignore the National Labor Relations Act of 1935?

    How is that harmonious?

    1. He references it repeatedly so I’m not sure “simply ignore” is accurate. And since the NLRB doesn’t say anything about class actions or arbitration, it’s difficult to see how ignoring the NLRB would even matter in this case. The FAA and its predecessor do, however, speak directly to the enforceability of arbitration agreements, so it’s hard to see how the dissent can reconcile the FAA with the NLRB. The only way to harmonize the statutes is to “ignore” the NLRB (or at least recognize that it presents no conflict with the FAA).

      1. since the NLRB doesn’t say anything about class actions or arbitration,

        How common were these when the NLRA was passed? If they were uncommon, as I think, then why would they have been specifically mentioned and regardless, why are they not under the “other concerted activities” category?

        If Congress passed a law in 1935 regulating commercial interstate transportation that applied to “motor vehicles, railroads, boats, and other means of transportation,” would it not apply to airplanes?

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