Today in Supreme Court History: December 26, 1907

12/26/1907: Lonzo Bailey entered into written labor contract with the Riverside Corporation. This contract gave rise to Bailey v. Alabama (1911).

The White Court (1911)

 

Comments

[ReaderY]

Justice Holmes’ dissent in Bailey is probably one of Professor Bernstein’s best arguments that he was not quite as great a Justice as people remember him as.

[Dilan Esper]

Actually, Bailey is a nice example of how the Hot Take that "the Supreme Court is always a conservative institution" is really wrong. This was a conservative period for the Court, and Justice Holmes' dissent actually made some sense as an interpretation of the 13th Amendment- after all, nobody doubts that (1) states can imprison people for committing fraud, and (2) ultimately, states can imprison people for nonpayment of fines with a "goes to warrant" procedure. And this means that it is, in fact, possible to imprison debtors under the 13th Amendment. As Holmes points out, all the Court's ruling did was put an extra step in there.

And yet that extra step is very important. Without it, southern states would be using the law to tie Black workers to a single employer, and keep the near-slavery sharecropping system going. SCOTUS saw this, even though Holmes didn't. And the Jones opinion pretty forthrightly talks about race, too.

[John F. Carr]

I was a contractor for a small company that was bought by a large tech company. The regular employees told me they were presented an employment agreement that required them to pay back large "training" expenses if they didn't stay with the new company for at least a year. I don't know if the contracts had arbitration clauses, which would be the obvious way to evade constitutional limitations.

[Dilan Esper]

I suspect that if some state or Congress tried to reinstate peonage through arbitration clauses, that would be declared unconstitutional under the 13th Amendment. The 13th Amendment flatly prohibits involuntary servitude without regard to state action. It's not waivable. So you can't contract around it, any more than a worker can sign a valid contract to sell himself into slavery.

[Krychek_2]

But if the contract to sell oneself into slavery contained an arbitration clause, and some arbitrator somewhere upheld the contract, I'm not sure under the Supreme Court's arbitration rulings that the worker wouldn't be out of luck.

[Dilan Esper]

Application of the federal arbitration act to a slavery contract would violate the 13th Amendment, or, alternatively, arbitrators would have no jurisdiction to enter an order in violation thereof. One way or the other, you can't get around it with an arbitration clause.

[David Nieporent]

Arbitration rulings are not self-enforcing. After an arbitrator rules in one's favor one needs to go (back) to court to get an order to enforce it. Generally speaking, one cannot collaterally attack the arbitration award at that time, but there are a few narrow avenues, including corruption or fraud, or the arbitrator massively exceeding his powers. An arbitrator getting the law wrong is generally not one of those grounds to vacate the award — but an arbitrator enforcing a slavery clause would be.

[Krychek_2]

David, and Dilon, maybe (and hopefully we'll never have the opportunity to find out). The Supreme Court seems to think that you can contract away pretty much any of your rights (including the right of access to the courts, which is the whole point of an arbitration clause in the first place). Would slavery be any different from signing away any other constitutional right, such as deciding which church to attend, or which party to vote for, or publicly commenting on political issues, or owning a firearm? I'll bet the Supreme Court would uphold arbitration awards signing away any of those rights.

At the moment, the Supreme Court's position seems to be that an arbitration clause trumps everything.

[Dilan Esper]

Yes, slavery is different, because the 13th Amendment applies to private actors as well as the government. It bars all slavery and involuntary servitude, not merely government policies that permit it.

I bow to nobody in my contempt for SCOTUS' arbitration jurisprudence, but no, nobody's going to allow contracts that permit slavery with an arbitration clause attached.

[Krychek_2]

I hope you’re right. I also hope we never have the opportunity to find out.

[Jimmy the Dane]

I've seen those "payback" clauses in various independent contractor agreements over the years and even some in company policy. Enforcement is largely going to depend upon venue and jurisdiction, but I've always taken them with a grain of salt. Even the ones that are styled as no-interest-loans really aren't going to go to any type of collection effort. Most companies won't sue an ex-employee for a few thousand dollars (though they might use it as a case to dock a last paycheck or accrued paid time off if that is permitted in that jurisdiction). Although if they are already going to court to try to enforce an NDA or non-compete I have seen this lumped in as a cause of action (and most likely bargaining chip).

Any time I get one, I usually red line out the "repayment" language and rarely does it come back with it reinserted. Always interpreted it more to be a scare tactic (or "aspirational" depending on your viewpoint) in terms of getting employees or contractors to think about the term as an expectation.

[Jimmy the Dane]

Meant to also say when I have been on the employer side of the table, I understand the motivation. You hire someone and pay them a salary on top of whatever the tuition/fee/internal expense is for the training and just don't want them to up and leave when that period has concluded. I've always told managers it is the equivalent of a "cost of doing business" in that you just have to assume some kind of natural attrition in those positions when doing your budget and expense projections. But front line managers that have say a small department level budget feel the sting when someone who they spent $25-30K on training ups and leaves with only two weeks notice shortly after their months long training ends. It is more of an emotional reaction but they just are adverse to the concept that if they want to live with "at will" employment as their universal policy then it will happen.

[Michael P]

My employer has a repayment clause in the agreement about paying tuition for employees to pursue advanced degrees. For that kind of "portable" credential, it makes sense and is at least somewhat defensible. However,I understood John Carr's example to be "training" related to the change of corporate ownership, which seems indefensible. It's not like they were offering an X% bonita for staying a year.

[bernard11]

However,I understood John Carr's example to be "training" related to the change of corporate ownership, which seems indefensible. It's not like they were offering an X% bonita for staying a year.

That's how I read it also - that there was no actual training.

[Michael P]

There may be actual training in that kind of situation, covering policies or regulations that are different with the new ownership. I maintain that such training is a cost of doing business for the company, and not something that could be charged to employees under any circumstance.

[Jimmy the Dane]

Tuition repayment is similarly going to be dicy to actually enforce.

I was consulting for one employer that basically had an employee jump ship 30 days after finishing up their Masters Degree which was paid for 50% by the company (along with copious amount of time off for exam prep, classes, etc.). They were an at-will employee, but signed a "memorandum of understanding" that they would have to repay the tuition assistance in full if they left within a year.

My take was given the jurisdiction that they agreement was going to be unenforceable and that is what their counsel advised too. They sued anyhow and lost. The judge basically ruled that it needed to be in an employment contract to be enforceable, but since the tuition agreement specifically stated employment was still on an at will basis then basically it was not enough to make a contractual obligation.

Now that employer just has a ton of negative reviews online linking to the case or a few local news stories about it. Can't imagine that helps then with recruiting much these days...

[Kazinski]

Holmes was a real piece of work, Roosevelt could have done a lot better.

This isn't as pithy as "Three generations of imbeciles is enough", but is a similar thought process:

"Neither public document nor evidence discloses a law which, by its administration, is made something different from what it appears on its face, and therefore the fact that in Alabama it mainly concerns the blacks does not matter."

[F.D. Wolf]

In Northern Securities Co. v. United States, 193 U.S. 197 (1904), the Court ruled (5-4) in favor of the government's effort to break up of a stock-holding company as a railroad monopoly. Holmes wrote the dissent.

Roosevelt was not pleased with Holmes, of whom he declared, "I could carve out of a banana a judge with more backbone than that."

Holmes' dissent in Bailey, in which the "great progressive" decided to go full conservative, is just one of a large catalog of notably terrible judicial opinions by Holmes.

[Cal Cetín]

Who's the progressive here?

If the decision was progressive, so was Chief Justice Edward White - a Southerner - and Willis Van Devanter - the future Horseman of Reaction.

President Wilson, whose progressive bona fides presumably are not open to question, gave a rosy picture of slavery in his American history.

And of course there's the Progressive tendency to defer to the government in the case of conflicts between the government and claims of individual liberties. This was a bone of contention between the Progressives and the "conservatives."

Why is it surprising that Holmes (albeit for non-Progressive reasons since he was not a Prog but a fellow-traveller) should have a narrow view of the 13th Amendment as he did of the 14th?

[F.D. Wolf]

I am by no means an expert on Holmes, nor am I interested enough to become one. He certainly was a man of contradictions, but then aren't we all? To characterize his dissent here as "conservative" does not suggest the majority opinion is necessarily "progressive".

But Holmes is generally characterized as "Progressive" in that he embraced that philosophy that captured so much of the intelligentsia in late 19th-century America, one influenced heavily by the likes of Marx and Darwin, a "scientific" outlook that wholly rejected concepts like natural law or eternal truths. So, his "legal realism" is superficially "conservative" in the sense of not drawing on those concepts, but fundamentally "progressive" in that it is not really grounded in anything besides whatever the fashionable opinions of sociologists might be that day.

I think the quintessential Holmes is his odious opinion in Buck v. Bell, an opinion, unsurprisingly, cited by the defendants in the Doctors' Trial in Nuremberg.

[Cal Cetín]

Certainly, there's plenty of overlap between Holmes and the Progressives - the main difference is the across-the-board optimism in the ability of the right people (i. e. Progressives) to make this a better world. Holmes wasn't like that, except perhaps in the issue of Eugenics, where he was a true fanatic for that particular area of reform.

Another lack of overlap is that some (not all) Progressives could be characterized as "Religious Left." Wilson of course is an example, likewise the social-gospel types. I'm quite sure, on the other hand, that there were progressives who were as atheistic as Holmes. But apart from Eugenics (itself a dreary worldview) Holmes was too cynical about progress to be entitled to the Progressive moniker.

[ReaderY]

President Wilson’s progressive credentials are presumably not open to question?

Wouldn’t Princeton University’s decision to remove Wilson’s name from various university entities it was formerly associated with (such as the former Woodrow Wilson School of Public Policy), precisely because of his rampant racism, not just his high regard for slavery as an academic but concrete actions as President like segregating the federal government, dismissing black employees except for janitors and such, etc., suggest that the presumption that he ever had anything to do with what is regarded as “progressive” today has been thoroughly rebutted?

[Cal Cetín]

It means that Progressivism is embarrassed by its founding fathers - and would like us to believe that we were always at war with Eurasia.

"Woodrow who? Sorry, doesn't ring a bell."

Simply because they've changed the current party line doesn't mean we have to rip out the "Woodrow Wilson" entry from the Great Progressive Encyclopedia.

Nor have they given up racism, they've simply adopted new forms. Racial preferences for supposedly favored races, while giving the back of the hand to those same races when it comes to educational choice and crime.

[Geezer]

I was drafted in 1969, against my will and without my consent.
Apparently, "involuntary servitude" isn't really "involuntary servitude" if the government does it.

As I recall, Holmes wrote the opinion in Schenck v. United States, 249 U.S. 47 (1919), holding that distributing anti-draft literature was not protected by the First Amendment.

[Krayt]

I would prefer subsequent amendments that overturn or alter parts of previous ones, or the constitution itself, declare so explicitely, so as to prevent later generations from imagining it made a change those who approved it did not consider.

[David Nieporent]

I was drafted in 1969, against my will and without my consent.
Apparently, "involuntary servitude" isn't really "involuntary servitude" if the government does it.

Basically. Application to military conscription is bad enough, but there's far worse precedent out there: In Butler v. Perry, SCOTUS held that the states could conscript people to build roads without running afoul of the 13th amendment. The entire reasoning¹ of the unanimous opinion is "We've always done it this way. How could roads get built if we didn't conscript people to do it?"

As I recall, Holmes wrote the opinion in Schenck v. United States, 249 U.S. 47 (1919), holding that distributing anti-draft literature was not protected by the First Amendment.

He did, and that's the case that gave us the execrable "fire in a crowded theater" line that is so often misused by censorious people to this day.
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¹People criticize SCOTUS today sometimes for being too prolix, but SCOTUS of that era was absurd: they often announced rulings with virtually no reasoning.

[mydisplayname]

Butler v. Perry is one of my favorites: our American embrace of the Trinoda necessitas.

[Sarcastr0]

Holmes started out pretty bad. But later he came around.

the most important thing to know about Oliver Wendell Holmes is that he was stridently anti-free-speech, as we know it today. And that's kind of what's interesting here because the mystery of how this country switched how it saw free speech is actually the mystery of how this one man switched how he thinks about free speech. And his change of mind became the whole country's change of mind....

“When men have realized that time has upset many fighting faiths, they may come to believe... that the ultimate good desired is better reached by free trade in ideas-- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment. As all life is an experiment. Every year if not every day we wager our salvation upon some prophecy based upon imperfect knowledge. ”

https://www.wnycstudios.org/podcasts/radiolab/articles/what-holmes

[Cal Cetín]

As I recall from Thomas Healy's The Great Dissent

https://us.macmillan.com/books/9781250058690/thegreatdissent

...Holmes was persuaded by Frankfurter and Chafee to modify his views in a more speech-protective direction. This was a context where these professors faced, not government repression as such, but hassle from their universities for their work.

And Holmes' speech doctrine was very...Holmesian. He said in his Gitlow dissent:

"If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way."

https://www.law.cornell.edu/supremecourt/text/268/652

Yes, with his atheist Nietzscheanism, Holmes didn't just defend free speech as a road to truth, he would accept speech even if he thought it would mean advocates of actual Communism winning (and then of course suppressing anticommunist speech).

The standard defense of defending speech by Commies is not that they should be given a chance to win, but that in the context of open debate, better ideas than Communism will win out.