Munn V. Illinois - Escape hatch from Lochner – “Public interest”

• Held that government could regulate private property that was “affected with a public interest.” The boundaries of this category were, of course, highly contestable, and this exception started to swallow the rule in Nebbia v. New York.

Muller V. Oregon – Another escape hatch – Women “special class”

• Women were a special class who were entitled to special protection from the market, and thus maximum-hours laws were permissible as applied to them. This escape hatch had a price (Forbarth):

• Constitutional segmentation of labor into a “dependent” class of children, women, and men in certain dangerous or especially vulnerable callings, and an “independent” class of “free adult workers” who ought not to rely on “state paternalism” helped fragment not only labor legislation but also workers’ group identity.

• The courts’ relative hospitality toward hours laws for women and children encouraged and ratified within labor circles a gender-based division of the working class. The labor movement had once favored “universal hours laws,” signifying its class-wide constituency; now it supported hours legislation for those “dependent” groups now deemed outside the movement, because they could not “look after themselves” through collective self-help.

• Examine Adkins v. Children’s Hospital again when we turn to sex equality cases.

Bailey V. Alabama – Personal service contracts enforced by jail time no more

• Hughes 1911. Showed the attractive side of Lochner logic. Still good law.

• This case constitutionalized the old rule that personal service contracts cannot be enforced by ordering specific performance.

• Dissent - Holmes. Argued that this interfered with the freedom of contract of black laborers, and would ultimately make them worse off.

• Historical background is relevant to evaluating Holmes’s claim:

• Ever since Reconstruction, wealthy white landowners had striven to maintain their supply of cheap and reliable agricultural labor by foreclosing all other options to blacks. For the most part, the white landowners had won.

• The legal system connived with the planters to keep the blacks in harness.

1. Those not already under contract could be arrested on any of a number of vague charges – failing all else, vagrancy – whereupon they would only be able to pay their fines by signing labor contracts and getting advances; the alternative as the chain gang, where “annual death rates for prisoners were staggering – typically around 20% and in some places approaching 50%.

2. “Enticement statutes established the proprietary claims of employers to ‘their’ Negroes by making it a crime to hire away a laborer under contract to another man.” Sometimes, if white farmers were short of hands at harvest, the police would simply sweep through the streets arresting every able-bodied black they saw.

• This historical background made Bailey a very easy case, but also diverted attention from the deep problem in contract theory that Holmes perceived:

• Does liberty include the right to sell oneself into slavery?

• 13^th Amendment, as interpreted by SCt, says no. Is that a violation or vindication of liberty?