Well, welcome to todays class where we are moving on as usual in this class, were going to be talking about the power of governments to regulate the economy in different situations. But we are. One thing that you need to keep in mind when because were this class is historical in nature, when youre trying to answer how much power the government has to regulate the economy, the answer is going to be it depends and its going to depend. On a number of factors. The first is historical era, and up until now, weve exclusively focused on the Marshall Court and were going to leave that behind now. You took a quiz on that. You dont need to remember it right now. Were moving on for the next part of the class. Were going to be in whats called the lochner era, which took place at sort of the height of the Industrial Revolution leading up through the great depression. Then there was a major set of changes after the 1930s, and then there was well end the semester by looking at more recent Supreme Court decisions that have sort of pulled back the authority of state and local governments to regulate the economy and you dont need to know these exact dates when youre, you know, taking an exam, but its helpful to begin any sort of inquiry about how the court is going to approach particular issue, knowing that it falls into a particular historical era. The next is the theme that were going to really hit on today, which is the perceived need for the government to intervene and one of the ways in which there are differences in perceptions for the need for government to intervene is when it comes to regulating work for all workers versus regulating jobs that are only occupied by women. And then finally, the most important thing, something that you have not had to consider up until now, because all the cases weve gone over were more or less federal laws. The federal government and State Governments have different powers assigned to them and different sets of restrictions is based on different individual rights that will restrain their power. So were pretty familiar right now with enumerated powers. Thats what the federal government has to obey for congress to do anything, they have to be able to point to something on a list of things that congress is allowed to do thats found mostly in article one, section eight. But when it comes to State Governments, they have a different kind of authority. Therefore, they are what we refer to as the Police Powers. But do not take that too literally. It doesnt literally mean the power to establish a state police force. What it really does means is that State Governments have the authority to make regulations to promote the health, safety, welfare and morality of their people. Thats a really, really important concept for the next exam and probably for the final one as well. So now that weve got a little bit of a background, so sort of highlight the transition and were making from precivil war cases to now Industrial Revolutionary cases. Now we go back to the same set of things that you guys need to approach every single case with to make sure that youre starting to follow along. So you need to be able to understand who did what to whom to generate the case, whats the issue that the court needs to resolve in the case . How does the court resolve that issue and why . What theories of constitutional interpretation do they use . What legal rule did they come up with . How do they apply that to the case . So on and so forth. So weve got two cases for today. Mueller versus oregon and adkins versus Childrens Hospital. They are both decided around the same time and they share an important commonality in that these are economic regulation is directed solely at female employees. So lets start with mueller. The issue here in this case is whether a steaw regulating work hours for women vlates the liberty of contract protected by e th amendments due process clause. And the court in this case, and th is a fairly rare thing for the court to do in the early 1900s. Is the court at that time was really cseative. And yet on this particular issue, all nine justices came together behind one opioand said tt nder differences justify why what they called at the time protective legislation regarding work hours. So what is it that is in the due process clause that might restrict the flexibility of State Governments to pass the kinds of health, safety, welfare and morals regulations that it sees fit . Well, the 14th amendment says that no state, meaning no State Government, shall deprive to any person life, liberty or property without due process of law. Note a couple of things. One, the obligation of State Governments does not apply only to citizens. It applies to any person who happens to be in that state. Youre not a state student here at umbc. You have the state of maryland has just as much a due process obligation for you as it does someone who was born and raised in baltimore county. Another thing is, well, how should we construe this sentence . Because one way to construe this sentence is that the government can do some pretty intense things taking away your life, liberty or property. So long as it is provided you due process of law. Thats one way of reading the sentence. And as some justices on the Supreme Court today, thats the only thing that it means that so long as youve given out whatever due process of law is, then the state can do whatever it wants. By the way, there were some other arguments in this case about the privileges, the immunities clause, the equal protection clause. They basically drop out. You dont need to focus on them. So instead, i wanted to drill down a little bit more on the due process clause because if you believe that the only thing without due process of law, here are the kinds of cases that that this cprotects. And that is what you would call like procedural due process, oxymoron, right . Like an that, you know, if you already have process. So why do you need to specify . Its the procedural aspect of the process. But the rlawyers use that term is to highlight that there government has to its people before it can take away life, liberty or property. So for one example, the federal government has a due process obligation that before it issues a new regulation or before that new regulation can take effect. There has to be an opportunity for members of the public to weigh in and provide comment as to how that proposed regulation will impact their lives, their businesses, their whatever. And if the government skips that 30 day comment period, the regulation itself can be struck down because you didnt follow the proper steps that you needed to to provide that sort of advance notice and warning before you started taking away peoples liberty, your property right. But were not studying those kinds of cases in this class, maybe in a crim law class at umbc or certainly in law school, you study procedural due process cases, but not in an undergrad con law class. So instead, were focusing on other due process, due process oriented cases, which we refer to as substantive due process, substantive due process stands for the notion that even if government follows the procedures, that it is obliged to follow it in treating people fairly, giving them warning, all that kind of stuff. The resulting law might still be unconstitutional based on what the law does, based on the substance of the law and the reason is you can trace the notion of due process all the way back to magna carta. 800 years ago. And due process wasnt just about, you know, a fair set of procedures. It really meant in the old english in violation of the law of the land or being consistent with the law of the land and the law of the land included certain rights that at the time englishmen enjoyed. And were nothing but transplanted englishmen when it comes to the inheritance of our legal system. And so even if the king or parliaments did things in a fair way, if the resulting action itself was unnecessarily depriving someone of their rights, it could still be a problem. The substance of the law can be unconstitutional, even if the way the law was enacted and announced to the public was using the standard fair procedures so the kind of substantive due process. Right that were going to focus on for the next few weeks is whats called liberty of contract and liberty of contract is premised on the notion that ts are capable of making their own economic decisions wiany kind of government interference. And what do we mean here by government interference . We mean the ment cant specify by a wage. The government cant regulate thee d of your workplace. The government cant specify how many hours youre aow to work. Why . Because if youre concerned about your wage, you should negotiate it. If youre concerned about working too many hours, you should negotiate it any worker has the ability to try to negotiate with a Business Owner to resolve these sorts. Of concerns without the government mandating it on behalf of the workers. And so it creates this obligation on the government to stay neutral when you have economic disputes between owners and laborers and that sort of thing. Now, the notion that the government should stay neutral might make sense in a in an economy where the vast majority of businesses are relatively small businesses, where youre what you contribute to a company as a worker or is valuable enough that the owner of your business really does need you, right . The problem is were developing this right of liberty, of contract at a time when workers are becoming increasingly fungible. Why . Its the Industrial Revolution and so on the one hand, work has been automated by the development of technology, right . So the kinds of people working in factories are not the same kind of skilled craftsmen, not from the old days, where like theres no shortcut to getting a good blacksmith, right . If youre going to have good horseshoes, you need to have someone who knows the really difficult, fine skills that come with crafting a a horseshoe. Its not really true anymore. If you get a little bit of training and then get put to work in a textile mill, you can make the machines run. So the workers become fungible. If someone quits, someone else can be put on that machine soon thereafter, after a little bit of training and they can take up that job. The other problem with the Industrial Revolution is there there there are still some small businesses, but youre seeing the rise for the first time of really large corporations. And lets face it, you know, its one thing if you go to if you know your boss personally, you can go in and try and negotiate for a better wage and fairer hours and that sort of thing. But if your bosses, andrew carnegie, hes not going to remember your name, nor will he care. Right. And so what does it mean to force the government to stay neutral and disputes between two people, two sets of groups over how to conduct a business when it seems like perhaps one side ownership side has a built in set of advantages over workers. By the way, also not really a subject of this course, but other courses at umbc this substantive due process also forms the basis for the line of cases. Actually, that really did start around the same time as the lochner era, but we really sort of recognize them as being civil rights advances beginning in the 1960s, around the protection of privacy, reproductive rights, marriage, that sort of thing. And its follows a very similar logic. If you are a grown adult capable of making your own economic decisions without arbitrary government interference, perhaps you should also be accorded the same freedom to run your lives without the government interfering over questions of how you raise your kids, what you do in the privacy of your own home, who you marry so on and so forth. Okay, any questions about the sort of broad shift in history or in level of government and kinds of powers or unique . We have a completely new set of rights concerns, too. Were really sort of shifting the kinds of of variables at play. Any questions about that before we get specific to the concerns of the case in in mueller. Okay, great. So what happened in this first case, mueller versus oregon curt mueller ran a laund in oregon in 1908 and laundries were a kind of business that had sort of overwhelmingly female workforce and so there was a woman thathe employed and you can tell how women were viewed by the legal system in the early 1900s. They wouldnt even refer to her by her full name. She was simp mrs. E gotcha and by referring to her as that obscuras well, one that she has a first name right that is worthy of knowing. And second, it also obscures the fact that she was 16 years old and already married a already a union leader working in this laundry. Emma gotcha. Was a really incredible woman who gets sort of largely overlooked in legal history and the law here limited the number of hours that a woman could work. And mueller said, yeah, no, that im not going to follow the law. He violated the law based on gotchas, testimony, and mueller got fined 10, which, you know, and those days was not insubstantial amount of money. So i know weve you guys have read lochner versus new york. We havent talked about it yet, but i think its worth comparing the law that was passed in oregon to the law that was at issue in lochner. So for our dear friends on television who might not be familiar with lochner, lochner versus new york was a case decided by the Supreme Court in 1905. It struck down a new york law that made it a crime to ask people working in a bakery to work more than 10 hours a day or 60 hours a week. So lets compare the law in oregon to the new york law that applied in bakeries. Well, so the oregon law only applies to women, whereas the bakeshop law in new york from lochner only applied in bakeries. And so theoretically that that law could cover both male and female workers. But again, bakeries were places that at the time were overwhelmingly male dominated economic spaces. And there was no hours per week limit to the oregon law. And then the other difference is, whereas the bakeshop act in new york only applied in bakeries and the New York Legislature tried to make it a big deal by saying, well, bakeries are a sort of uniquely challenging place to work in terms of the Public Health threats, of being in a cramped basement, windowless space where this oven is on 24 seven and theres not a lot of ventilation in, and yet theres flour, dust. Right. This law just applies to working women in any capacity in the state of oregon. So women could be working in factories and laundries. Its not just one particular industry and its also worth mentioning that weve weve got some sort of store, some history to tell as a part of todays class, not just emma. Gotcha. Who needs a little bit of a shout out, but a bunch of other women. So the oregon law was written at the behest of Florence Kelley. Here she is. So what do we edo know about Florence Kelley . Her father was an abolitionist congressman, so she was raised to believe thapotics was evyones business, not just mans business. She attended cne at 16, gh and was a Phi Beta Kappa member, which, you know, if you guys are getting close to graduation, if if youve got a really, really high gpa, you can join the umbc chapter of liberty capital. Thats a pretty exclusive club. I mean, i didnt gego enough grades at william and mary to be a Phi Beta Kappa member. So good for her for doing it. At 16, she got a law degree at northwte dpi the fact that she couldnt actually use it to practice law in almost any of the stes. She worked at whole house, the one of the most important sort of developments in siogy in the early 20th century. Itas place whe really intelligent women got together and were trying to find ways to soe problems ofang women in poverty. And she also founded the tional consumer league, which was one of the mt fluential Interest Groups in the early 20th ctu. Were going to see the National Consumer league being involved in cases not just today, but throughout the new deal. Okay, so curt mueller obviously wants the us Supreme Court to strike this law down. What kinds of arguments is he making to that effect . The first one he makes is the notion that the government has to stay neutral and if its not staying neutral, its picking sides or the way you would describe that in the legalese of the time is that the state of oregon is engaging in class discrimination. And then its kind of separate from that. Was that there was a critique that this was not a valid way to use the States Police powers. State governments can solve problems in health, safety, welfare and morality. But if there are no problems in safety or our health, then this government cant be allowed to pretend as though there are. So how could you think of this law regulating the number of hours that women can work per day in factories and laundries as being sort of an abuse of the police power . Well, if you agree that with mueller, who claimed that working in a laundry wasnt all that particularly dangerous, then theres no problem that the law can solve and that theres not enough a Strong Enough of a connection between what the law does and the laws goal of protecting Womens Health. And yet muellers argument was going to get very, very strongly rebutted in court to the point where a very conservative Supreme Court, all nine of those justices come together and reject the more conservative argument, the one thats being advanced by court. Muellers lawyers and its all thanks to the brandeis brief. Ive got a picture of it on the right, and i think its worth starting by noting that i put this in quotation marks, both words. So when you go to law scol, youre going to he lots and lots about the brandeis brief, but you should always be putting air quotes around them for a bunch of reasons. One, so its called the brande brief, because if you can actually see down here, it was it appears to be written by Louis Brandeis whwill go on to get a seat on the Supreme Court himself a and