The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s

By Michael J. Phillips | Go to book overview

NOTES
1.
The more common kind of deontological ethics, however, says merely that the morality of actions is not entirely, or even mainly, determined by their consequences. See PETER A. ANGELES, DICTIONARY OF PHILOSOPHY 82–83 (1981).
2.
All the quotations in this paragraph are from IMMANUEL KANT, FOUNDATIONS OF THE METAPHYSICS OF MORALS 9–10 (2d rev’d Macmillan paperback ed. 1990). The translation is by Lewis Beck White.
3.
Adkins v. Children’s Hosp., 261 U.S. 525 (1923). The progeny are Morehead v. New York ex rel. Tipaldo, 298 U.S. 587 (1936); Dunham v. West-Nelson Mfg. Co., 273 U.S. 657 (1927); Murphy v. Sardell, 269 U.S. 530 (1925).
4.
Chas. Wolff Packing Co. v. Court of Indus. Relations, 262 U.S. 522 (1923) (striking down a Kansas law giving a state agency the power to fix wages within industries affected with a public interest); Dorchy v. Kansas, 264 U.S. 286 (1924) (refusing to decide whether another provision of the act was separable from the provision struck down in Chas. Wolff); Chas. Wolff Packing Co. v. Court of Indus. Relations, 267 U.S. 552 (1925) (striking down a maximum-hours provision contained in a writ of mandamus issued by the Kansas Supreme Court following Chas Wolff’s return to that court).
5.
208 U.S. 161 (1908).
6.
236 U.S. 1 (1915).
7.
Williams v. Standard Oil Co., 278 U.S. 235 (1929) (retail sale of gasoline); Ribnik v. McBride, 277 U.S. 350 (1928) (employment agency fees); Tyson & Bro. v. Banton, 273 U.S. 418 (1927) (resale price of theater tickets).
8.
264 U.S. 504 (1924).
9.
270 U.S. 402 (1926) (state law forbidding the use of “shoddy” in mattresses, pillows, bolsters, featherbeds, and the like).
10.
94 U.S. 113 (1877).
11.
The clearest examples are Allgeyer v. Louisiana, 165 U.S. 578 (1897); Fidelity & Deposit Co. v. Tafoya, 270 U.S. 426 (1926); and St. Louis Cotton Compress Co. v. Arkansas, 260 U.S. 346 (1922). Allgeyer and Cotton Compress are described in the text; Tafoya struck down a state law forbidding any registered insurance agency from paying anyone to place insurance on in-state risks, where that other entity was not authorized to do business within the state.
12.
Cotton Compress, 260 U.S. at 348–49.
13.
Bunting v. Oregon, 243 U.S. 426, 434–39 (1917) (factory workers); Bosley v. McLaughlin, 236 U.S. 385, 392–94 (1915) (women); Miller v. Wilson, 236 U.S. 373, 379–82 (1915) (women); Hawley v. Walker, 232 U.S. 718 (1914) (women); Riley v. Massachusetts, 232 U.S. 671, 679–81 (1914) (women); Muller v. Oregon, 208 U.S. 412, 417–23 (1908) (women); Holden v. Hardy, 169 U.S. 366, 389–98 (1898) (mining employees).
14.
Atkin v. Kansas, 191 U.S. 207, 219–24 (1903) (state law regulating wages and hours of workers employed by municipal paving contractors). See also Heim v. McCall, 239 U.S. 175, 191–93 (1915) (state law giving citizens a preference over aliens in employment on public works); Crane v. New York, 239 U.S. 195, 198 (1915) (a companion case to Heim). Cf. Ellis v. United States, 206 U.S. 246, 255–56 (1907) (upholding a federal statute limiting the hours worked by federal work

-151-

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The Lochner Court, Myth and Reality: Substantive Due Process from the 1890s to the 1930s
Table of contents

Table of contents

  • Title Page iii
  • Contents v
  • Preface vii
  • Notes x
  • Chapter 1 - The Conventional Wisdom 1
  • Chapter 2 - An Overview of Lochner-Era Substantive Due Process 31
  • Chapter 3 - What Motivated the Old Court? 91
  • Chapter 4 - The Question of Unequal Bargaining Power 125
  • Notes 151
  • Chapter 5 - The Originalist Challenge 155
  • Chapter 6 - Summing Up and Looking Ahead 177
  • Selected Bibiliography 201
  • Table of Cases 205
  • Index 207
  • About the Author 211
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