well, welcome to today's class where we are moving on as usual in this class, we're 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 we're this class is historical in nature, when you're trying to answer how much power the government has to regulate the economy, the answer is going to be it depends and it's going to depend. on a number of factors. the first is historical era, and up until now, we've exclusively focused on the marshall court and we're going to leave that behind now. you took a quiz on that. you don't need to remember it right now. we're moving on for the next part of the class. we're going to be in what's 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 we'll 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 don't need to

know these exact dates when you're, you know, taking an exam, but it's 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 we're 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 we've 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 we're pretty familiar right now with enumerated powers. that's 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 that's 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 doesn't 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. that's a really, really important concept for the next exam and probably for the final one as well. so now that we've got a little bit of a background, so sort of highlight the transition and

we're making from pre-civil 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 you're starting to follow along. so you need to be able to understand who did what to whom to generate the case, what's 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 we've got two cases for today. mueller versus oregon and adkins versus children's 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 let's start with mueller. the issue here in this case is

whether a state law regulating work hours for women violates thliberty of contrac protected by the 14th amdmt's due process clause. and the court in this case, and this is a fairly rare infor the court to do in the early 1900s. is the court at that time was really conservative. anyet on this particular issue, all nine justices came together behind one opinion and said that gender 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. you're 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. that's one way of reading the sentence. and as some justices on the supreme court today, that's the only thing that it means that so long as you've 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 don't need to focus on them. so instead, i wanted to drill down a little bit more on the due process clauseause if you believe that the only thing that matters is the words without due s of law, here are the kinds of cases that that this clause protects. and that is what you would call like procedural due process, which i know it sounds lik an that, you know, if you already have process. so why do you need to specify it's the procedural aspect of the process. it makes no sense. but the reason lawyers use that terms to highlight that there are certain obligations that 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 didn't follow the proper steps that you needed to to provide that sort of advance notice and warning before you started taking away people's liberty, your property right. but we're 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, we're 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 wasn't 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 we're 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 we're going to focus on for the next few weeks is what's called liberty of contract and liberty of contract is premised on the notion that adults are capable ong their own economic decisions without any kind of gove intece. and what do we mean here by government interference? we mean the government can't specif wage. the government can't regulate the safe d of your work

the government can' specify how many hours you're allowed to work. why? because if you're concerned about your wage, you should negotiate it. if you're 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 you're 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 we're developing this right of liberty, of contract at a time when workers are becoming increasingly fungible. why? it's 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 there's no shortcut to getting a good blacksmith, right? if you're going to have good horseshoes, you need to have someone who knows the really difficult, fine skills that come with crafting a a horseshoe. it's 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 you're seeing the rise for the first time of really large corporations. and let's face it, you know, it's 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, he's 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 it's 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. we're 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 laundry in oregon in 1908 and laundries we a kind of business that had sort of overwhelmgly female workforce and so there was a woman that she employed and you

can tell how women were viewed by the legal system in the early 1900s. they wouldn't even refer to her by her full name. she was simply mrs. e gotcha and by referring to her as that obscure as well, one that she has a first name right that is worthy of knowing. and secondit also obscures the fact that she was 16 years old and already married and already 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 d mueller said, yeah, no, that i'm 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 we've you guys have read lochner versus new york. we haven't talked about it yet, but i think it's 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 let's 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 there's not a lot of ventilation in, and yet there's 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.

it's not just one particular industry and it's also worth mentioning that we've we've got some sort of store, some history to tell as a part of today's class, not just emma. gotcha. who needs a little bit of a shout out, but a bunch of other women. so the oregon lawasritten at the behest of florence kelley. here she is. so what do we need to know about flence kelley? her father was an abolitionist congressman, so she was raised to believe that politics was everyone's busissnot just a man'buness. she attended cornell at 16, right. and s a phi ba ppa member, which, you know, if you guys are getting cle graduation, if if you've got a really, really high gpa, you can join the umbc chapter of liberty capital. that's a prey clusive club. i mean, i didn't get good enough grades at williaanmary to be a phietkappa member. so good for her for doingt.

at 16, she got a law degree at northwestern despite the fact that she couldn't actually use it to practice law in almost any of the states. e rked at whole house, the one of the most important sort of developments in sociology in the early 20th century. it was a place where reall intelligent women got together and were trying to find ways to solve problems of facing women poverty. and she also founded the national consumer league, which was one of the most influential interest gupin the early 20th century. w're going to e e 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 it's not staying neutral, it's 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 it's kind of separate from that. was that there was a critique that this was not a valid way to use the state's 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 can't 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 wasn't all that particularly dangerous,

then there's no problem that the law can solve and that there's not enough a strong enough of a connection between what the law does and the law's goal of protecting women's health. and yet mueller's 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 that's being advanced by court. mueller's laers and it's all thanks to the brandeis brief. so i've got a picre of it on e right, and i think it's worth starting by noting that i put this in quotation marks, both words. so when you go to law school, you're going to hear lots and lots about the brandeis brief, but you should always be putting air quotes around them for a bunch of reasons. one, so it's called the brandeis

brief, bause if you can tually see down here, it was it appears to be written by louis brandeis who will go on to gea seat on the supreme court himself a and he wasired to work as the lead attorney for the national consumers leae by florence kelley and brandeis. the sttegy in taking this case to court, because remember, this case happens only the years after lhner, where the court says, look, these are, you know, grown adults. if they don't like the fact that they're working long hours in a bakery, theyan just renegotiate the terms of ployment. you know, there's a there's a real sort of like masculine bent to the argument and lochner that bakers are no census wards of the states. ght. these are sort of, you know, manly men who, you know, if they don't like how they're being treated, they can really

associate it. they don't need the government to do it on their behalf. and so brandeis was like, oh, all right, if we're not careful, this law is going to suffer the exact same fate. so we wanted to learn from the mistakes. and oregon said, look, we will let you be in charge of writing up the writ written component of our argument to have this this persuade the supreme court to uphold this law and. except brandeis didn't actually write almost anything of what's in that pamphlet. louis brandeis farmed this task out to his two sisters in law, josephine and pauline goldmark. so again, i think we should at least take a couple of minutes to give these two women a bit of a shout out. well, josephine goldmark graduated from bryn mawr, taught at barnard college, went to work at the national consumers league, and pauline also

aduated from bryn maw started graduate work at columbia university, went to work with pauline kelley at the national consumers league. so what went into this, the making of this brief? so the two gold marks and an army of female research assistants. so again, before google existed, how would you collect facts? you would have to go to a thing called a library. and i know i might be speaking a language you guys don't understand, but you would have to go to a library and you would have to flip through physical pages of books. you couldn't just download a pdf, right? and so if you were going to try to argue that women do need protection by the state government so that employers don't force them to work too many hours, you need to accumulate some facts about the

sort of unique challenges that women encounter in the workplace and so they went to the new york public library for a month and just read everything they could get their hands on and started typing it up. usually today there are very strict rules about what you can submit as part of your written argument to the us supreme court. its 35 page document, they call it a brief. i know that you probably have never written a 35 page paper in your life and even if you have, you wouldn't call it brief. but two lawyers who just, you know, it takes them 10 minutes to cough, right? 35 pages can be called a brief. and yet the rules were a little bit looser in the early 1900s. so the brandeis brief was two pages of legal argument that louis wrote and 98 pages of all of these statistics. that is, two sisters in law had

gathered. so here's like part of the table of contents. all right. the dangers of long hours causes physical differences between men and women, bad effects of long hours on health, bad effects of long hours on safety, bad effects of hours on mors,ad effects of long hours on the general welfare. look at what they're doing. they're ung scientific arguments, not just to, like, try to, you kn, overrule them people with facts, but they're couching them in ways to make i look as though the state of oregon is solving a polic powers problem. state governments have the right to pass laws to promote the health, fe, welfare and morali of their people. what do we have here? health. safety morals. welfare. all sorts of factual information. but couched in terms of problems that state governments are allowed to solve. and it was so impressive that

not only did it convince these justices who weren't normally inclined to support progressive economic legislation, all nine of them got on board and it's very rare to see this where, in a majority opinion the justices thank someone for submitting such hpful brief. and that's exactly what happens here in the brief filed by. mr. louis brandeis is a very copious collection of scientific data and laws demonstrating a widespre bief that women's physical structure and the functions she performs in consequence thereof juify special legislation in restricting the conditns under which she should toil. by the way, let's peel back the onion just a little bit right here. women's physical structure and the function she performs in consequence there of what is

that phrase referring to motherhood is exactly right. yeah, we're going to see a lot of these couched in terms of how a stereotypical gender roles that just because a woman might be working doesn't mean that the most important part of her life isn't raising kids. so remember we had muellers argument saying that this is the government picking sides and it's picking sides in a situation where there are no problems to solve because working in a laundry isn't nearly as bad as working in that hot, windowless basement. if you were working in a bakery. all right. so what are the justices respond. first. they note that like all constitutional rights, the liberty of contract is not absolute. freedom of speech is an absolute.

i know some of you are taking first amendment class with me this semester. we hear this over and over ain. whatever constitutional right is up for grabs. the court might at the very first thing they say as well, this constitutional right. like all constitutional rights, they're not absolute. the question is like how much of an exception can you get? so they go on to say a state may without conflicting with the provisions of the 14th amendment, restrict in many respects the individual's power of contract. so the real question in this case is, is this one of the justifiable exceptions and let's pay attention to the particular way that they frame the answer. yes, they talk the statistics that are put in these reports, talk how work in factories and in laundries puts a toll. women's health and that women's health might wear down faster or to a greater degree than men's health.

right. but they're not that's not the fact that men might be able to, quote unquote, tough it out longer at a demanding job. isn't the reason why governments are allowed to intervene on behalf of women. it's because that women could worn down on the workplace and then can't go on to be effective mothers and wives. that's what justifies the special treatment. so the frailty of women affects their maternal functions as literally the words that are used in this opinion. healthy mothers are essential to vigorous offspring. the physical well-being of women becomes an object of public interest. so in the sense this isn't even really the aren't upholding this as a sort of like advancement for women's rights. it's a protection for kind of children's rights or even in the sense husbands rights. the other thing they say is,

yeah, the government is picking sides, but it's justified. differentiated by these matters from the other sex from men. women are properly placed in a class by themselves and legislation designed for her protection may be sustained even when like legislation is not necessary for men and could not be sustained. they're carving out a very different understanding of the scope of state government police powers when it applies to women and what they perceive as the unique situation that women enjoy. compared to men. and then here's the last thing that i might want to or we're going to do most of the sort of the discussion at the end. but i might jump in and get a little bit of feedback from you guys here because i go and forth on the meaning of this quote all the time. and i'd be curious to hear your take on it, because i think that

this quote could mean one of two things. the first is it could just be a. a recognition that despite the fact that things have been getting better for women, it's just a reality that in business affairs, that is still true, that the struggle for subsistence, that women aren't an equal competitor. men that could just be a sort of like a recognition of an empirical reality or when you read it in context with the special needs of women to be good husbands and good mothers. right, you could read this quote, as is saying that, yeah, women finally have been getting access to education that they haven't gotten in the past and that means that women are working at a higher rate than they had before. but they're not equal to men in

the workplace, and they never will be because they have these other social functions. so what do you guys think which interpret nation just to sort of like straight down the middle. this is just an empirical fact or do we need to to say oh well, you know, i think you can read between the lines when. nine male supreme court are saying this what they're really saying is this is a sort of permanent thing. so yeah, i think it's honestly the second one because like reading between the lines and the fact that they're trying to argue against mueller, like they're trying to prove him wrong. like they're trying to say that like even though women are getting educated, even though they are going into the workplace, they still have not like they're still not the same biologically as men and they're trying to basically say that like although working at a

laundromat might not be dangerous, working too much for a woman is stand your mental to the child's health. yeah. potentially going to carry. yeah. because like, let's remember where we're at as a society when it comes to women in most states in the early 20th century women were allowed to file of their own lawsuits. they could only file a lawsuit with their husbands permission or their permission in the same way that children can't go to court their own behalf today. they can only bring a lawsuit when their parents bring it on their behalf. and so you know, in all sorts of ways, you know, in a lot of states in 1908, women didn't have the right to vote. some states had already allowed this, but but not everywhere. and we're still not to the 19th amendment yet guaranteeing it nationwide. and so if we view all these sorts of restrictions in general, it makes sense that

that that may be the second interpretation is the better one. but yeah, let's let's get another thought here. just, just a second. i also agree with the second one. i think it's a it's a situation of their saying that women and men will kind of never be equal, because if we're thinking this may be a stretch to kind of assume, but the time that they're in, i don't think they have much faith that women being in school or women working is going to go very far. yeah, they probably just think like, oh, this is something new that we're going to try out and then they're going to realize they don't want to do this and they just want to be mothers kind of thing. so that's what i think is the second one. yeah, i think that's a really, really good point. and the reason i want to make sure that we are, you know, thinking about the different ways of interpreting this, quote is i'm hoping we're going to have 15 minutes at the end where we can really sort of debate because, you know, what's really

interesting about these cases is they're largely being driven by even though the people like ultimate making the ultimate decision are male supreme court justices. and what i want to get your reaction to at the end is how do we feel about these tactics right, where these female activists just save it for the end how do these female activists feel about, you know, is this really sort of two steps forward, one step back, where you're getting some of these laws upheld, but only if you make these arguments about, you know, that play up the sort of like stereo typical expectations of women being wives and mothers. so that's we're going to save that for and come back to that kind of thing at the end. all right. but we're about to move on to atkins versus children's hospital. but before i do, is there anything sort of pressing about some of the legal arguments that needs clarifying from mueller? yeah, the question is that i

think picking sides like with men against women or like what are the sides? oh, that's a great question. so what does it mean to pick sides in a case like this? it's not men versus women, it's business owners. and however many employees are getting regulation from the government. so sometimes it's, you know, owners being restricted by a law that applies to all employees, like in lochner, everyone who works in that bakery, male or female, is subject to government regulation. and so the two sides are workers and owners. here it's the owners of the business and they're only their female employees, right? so if they have, you know, men working in these laundries, they're not they're not affected by the law. so they're not part of the class legislation. that's a good question. and anything else.

okay. so atkin's versus children's hospital, a little bit of a wrinkle here because this is a law that comes from the district of columbia, now the district of columbia is controlled by congress. now, you might say, well, wait a second, but there's a mayor, there's a city council. no, no, no, no, no. the mayor of d.c., the city council only exists because congress allows them to exist. and their relatively recent creation. and if congress ever wants to stop them from existing, they can. and fact, when i was growing up outside of d.c., there were a series of scandals that involved mayors of d.c. quite as juicy as some of the scandals we've had affecting baltimore, mayors in recent years. but congress decided to scale back some of the powers of the the city council. and so here but here's why that matters in whenever congress

passes a law, we need to find something in an enumerated power. is congress doing something to promote, you know, interstate commerce? is congress doing something to, you know, help run the postal system as efficiently as possible, that kind of thing. there's one instance in which you don't need congress doesn't need to point to an enumerate it power. it can operate with police powers because the resident of the district of columbia have to have someone protecting their health, safety, welfare and morality and ultimately, that's congress. they might outsource those decisions to a mayor and a city council, but in 1917, they had not made that decision yet. so congress passes a law. specifying a minimum wage, but only for female workers in the district of columbia and

children's hospital with you actually had, female employees at the children's hospital filing suit claiming that they didn't want to make the minimum wage. why people have been interested in doing clickbait things long before there were any there was anything to click right to be able to gain some notoriety in the press by doing something that you wouldn't expect most women to do. right. so they file suit and they sue jesse adkins, who was a part of this government commission that was set up to implement the minimum wage law. so the issue in this case is whether a minimum wage law violates the due process clause of the fifth amendment, why the fifth and not the 14th? i given you the full text of the due process clause of the 14th amendment, which begins with the two words no state, whereas

because we have red baron versus baltimore and we know the bill of rights only applies, or at least at this time only applies to the actions of what level of government, the federal government. so is congress staying true to its fifth amendment due process obligation is by passing a minimum wage law for women. now, but the clause is otherwise exactly the same. you can't be denied life, liberty, property without due process of law. the only difference is the fifth amendment applies to the federal government and the 14th amendment applies to the 50 states. and here we get a different outcome. if it's 5 to 3, i forget who. if someone should recuse themselves or someone who died and hadn't been replaced. but it's a53 decision and justice southerland, one of the most conservative justices of the early 20th century, writing the majority opinion and his

basic takeaway is that gender differences do not justify protective legislation when it comes to wages. ours might be one thing wages or something quite different. so here's how he tries to split that difference. he says protective legislation is justified only if a group truly needs protection and here's how he couches the argument in view of the great not to say revolution changes that have taken place since mueller versus oregon in civil status of women,cal and culminating in the 19th amendment, giving women the righote. it is not unreason able to say that these differences between men and women and the enjoyment of civil rights ha come almost, if not quite, to the vanishing point. we have the 19th amendment. congratulations, all gender discrimination problems have been resolved and so if we're at the point where we are not going

to allow the government to step in and have the ability to regulate male dominated spaces in the workplace, like bakeries, you know, we certainly should think twice before we automatically assume that the opposite should be true for women. so the basic argument here is that, you know, if women used to be treated as the equivalent of children, children can't vote. children can't bring lawsuits. right. and now at least part of that is starting to change. then they should be the ones who are have the ability to walk into their bosses office and negotiate a fair wage. that's argument. because the ability to negotiate a fair wage is not based on any sort of physical difference twn men and women. physical differences must be recognized is not, you kno completely out of tchmust be

recognized in appropriate cases and legislating fixi hrs or work conditions may properly take those physical differences into account. isot saying we should overturn mueller re saying that mueller doesn't ve carte blanche for governments to go beyond and enact even greater economic regulations that women we cannot the doctrine that won matu a again we're not talking about children and adult women. we cnoaccept the doctrine that adult women may be subject to restrictionup their liberty of contract, which could not lawfully be imposed in the case of men under similar circumstances. and then sutherland's really does sort of get heated, he ys. this law is forced to charity. all right. you are robb a business owner ay an employee who who

simply does not deserve the amount of money they. and in a sense, he goes even further to aate a position that no in american history has ever reallydvocate to, and that is setting a maximum wage. and he was lell, you know, if we at the supreme court say that we're setting a legal precedent, that it's okay for, a government to step in and say that you must pay a minimum wage and the follows that if someone tried to impose a maximum m wage, th court would be obliged to uphold that law to. this time wet a dissent and we're i think that's the first time in this class that we've encountered dissents by oliver wendell holmes. that's not going to be the last. if you take first amendment with me there are going to be a lot more dissents written by oliver wendell holmes is viewed as is one of the great dissenters in the history of the supreme

court. he can also sound little bit surly in court in some of his arguments, he doesn't suffer fools. and i kind of don't begrudge him the fact that sometimes he sounds a little grumpy in his arguments because. this is 90, what, 18 when atkins was someone someone get it on the google machine. is that right? 1923. yeah. even later. this is 1923. oliver wendell holmes fought in the civil war in the 1860s and he has a bullet that no one was able to remove from the civil war. and it's just been with him the entire rest of his life. so you know what? if he wants to be a little grumpy, i think that's understandable. so here comes holmes's response. he says, i don't understand how this case can at all be viewed as different. mueller it's pretty simple. if you want to understand how much money you walk home with at

the end of a workweek, it's a pretty simple equation. it is how much you get paid per hour, multiplied by the number of hours that you work. and i don't understand how this part of the equation can be constitutionally fine. and this one can't. i confess, i dnounderstand the principle on which the power to fix a minimum for the wages of women can be denied by those who admit the weto fix a maximum for their of work. the bargain is equally affected. icver half you regulate irregular eat this, it affects paent. you regulate this it fes payment. if you can this why can't you do this. and then heayequality like okay great yeah. women have the right to ve nationwide. everywhere. but in what? how on earth does having the right to walk into the voting booth in november have any bearing on what government can d can't do?

you're in the workplace. and then he's like, no, this isn't forced charity. this doesn't compel anybody to pay anything. business owners have a very easy way to avoid paying workers the minimum wage, and that's to hire fewer workers. right. but if you are going to hire a worker, you need to make sure hire a female worker. you need to make sure that you are treating her fairly. because if you're not, you're denying women the minimum requirement for health and right living and health. and right living is still a pretty important argument because it's essentially the same thing that really carried the day in mueller. women have to be able to take care of themselves if they're also going to be able to take care of families. that depends on both ends of this equation. it's not just that this can have

health effects, but you know what? taking home too little money also has all sorts of welfare effects on the family. so. the national consumers league was was thrilled with the outcome. and mueller really discouraged with the outcome. and adkins and so they just they held a big conference to sort of like plan next steps of like how to recover from the loss that they had sustained. i love that the advertisement for this conference is here's mr. justice southern and handing a piece of paper that says minimum wage decision to a female worker. and the caption is, this decision affirms your constitutional right to starve.

what else do we need to know in terms of the aftermath of these suitcases? well, let's circle back to the women who helped create them. one pauline goldmark went on to serve as secretary to the department of labors commission on women in industry and world war one. remember, we are pretty with rosie the riveter, yet we forget about her older cousin that helped out in world war one, right? the notion that women had to do men's jobs, that's not unique to world war two, that started in world war one. and pauline goldmark was part of the government's oversight on how those kinds of jobs would work. and then she went on to become an outside standing researcher at the columbia university school of social work and its bureau of social research. many social work majors in here are usually i sometimes have one or two per semester. but yeah, she's, you know, a sort of mount rushmore war

figure in the discipline of social work. josephine goldmark went on to serve on a committee investigating the triangle shirtwaist factory, which was one of the great disasters, industrial disasters of the early 20th century in new york city, and really sort of rallied progressives to the cause of taking greater steps to regulate workplace safety. she conducted a lot of research that completely changed the way that nurses are educated and she went on to advocate for more minimum wage laws, not just for women and not just by state governments, but trying to get congress to pass a national minimum wage act, which they did. it's called the fair labor standards act, passed in 1937 during sort of the height of the new deal. and the constitutionality of that law was challenged. and we're going to read about it

in us versus darby in a couple of weeks. and then finally, florence kelley wasn't just content helping to form the national consumers league. she went on and was one of the founding members of the acp, she pushed a ban for a federal ban on lynching, which was unsuccessful in the 1920s, but which did pass congress recently. she was a key figure in the women's suffrage movement and sort of in a sense was kind of ironically helped justice sutherland come up with a controversial argument as to like rule the way he did in striking down that minimum wage law in atkins. and she also passed lobbied congress to pass the sheppard towner act, which was the nation's first program to to prevent maternal and child mortality by funding health clinics. and she also pushed for what was

called the keating own child labor act, which would have banned the interstate shipment of goods produced by child labor and the constitutionality of that law was challenged in hamer versus dag and hart, which we will study next week. so yeah, these women played an important role over multiple decades of the early 20th century. okay, so. beyond the if you want to sort of like organize, study and going forward, beyond the standard, okay, do i understand who did what to whom, what the facts were, what the issue was, that sort of thing? here are some things to to to take a look at. it might also make for some good discussion for the last 20 minutes class. so one thing you should focus on contrast how the court views women workers in mueller and atkins against the bakers in

lochner versus new york. and then i think it's really important is as strange as some of justice sutherlands arguments in atkins might sound, you need to be able to tell me why to him at least, and four other justices wages are different than ours or it's okay for the government to fix limits on the number of hours that women can work, but not wages. and then also, i think it's important for you to be able to to tell me a little bit about the brandeis brief. not so much about like the the if you don't remember all the names of the women, that's fine. but, you know, i think you need to be able to talk to me on an exam about why this was an effective strategy. right. it really was. if you ever want to see a supreme court case where the

lawyers to blind the justices by science. this is it, right. okay. first, let me pause and see what questions there are about atkins itself, where there are aspects of the decision that need clarifying. yeah, let's start right here. so i know one. sutherland was arguing that like like the woman of a mature age. what is considered a woman of mature age during this time period, considering emma was 16. yeah, that's a great question. they meant adult and i don't know if that means 18. that might be too modern of a conception to impose that but that's a very good question. the point is, you know, non children right that women are least in some respects when it comes to the right to vote being removed from the category of children that have absolutely zero rights. so a category where they at least have some rights.

they don't have equal rights yet because they can't be they can't serve on juries they can't bring lawsuits in their own name, that sort of thing. they can't i mean, you know, women encountering problems sending a bank accounts in their own names through the 1970s because every you would go in to get a loan, you probably talking to a male loan officer who was like are your is your husband okay with you setting up this this account? right. so there was progress being made, but it was, you know. it was not all across the board. mm hmm. other questions. i have a few. okay. what was the minimum wage at the time like? what were they trying to fight for? and were men ever considered to be to have this minimum wage at the time, or was it strictly women? yeah. so. i don't remember what the exact wage in adkins.

it's going to seem. if i had the figure would seem absurdly low. but that's only because, like everything with inflation 80 years later seemed or 100 years later seems extreme. like you could buy a house for a few hundred dollars, right? so, like back down from that what you would expect a minimum wage to be and then in terms of wage laws that applied to workers of both genders, basically state governments knew it wasn't even worth trying to do that based on what the court had said pretty not just in lochner, but some other cases. so progressives in the early 20th century really tried to pivot to like find the few things that they could convince this court to do and so that part of that was to pivot towards women. the few times during this era

when regulations that affected men were upheld, they really weren't wage, they were workplace safety and maximum work hour, but only in the most danger was kinds of workplaces like coal mines and stuff like that. and in fact, that part of the problem with lochner was the justices are like, okay, you know, i'm sure working in this basement, windowless, hot bakery isn't. but it's not a coal mine. and so like, yeah, no, you want to regulate how many how much how many hours you work in a coal mine that's fine. but like this, this it doesn't seem like that demanding of a job and so it's lochner in a sense was suffer from bad timing because i think if lochner came first maybe they would have won. but because a coal mine case had already to the court before lochner, they were like, oh

well, but yeah that the coal mine, that's fine. but this seems like a pretty easy job. so yeah, that's a good question. but really the first time that minimum wages considered for workers of both genders and nationwide is the 1937 fair labor standards act, which is still the law that sets the minimum wage federal minimum wage. today. other questions just on adkins. okay. well, then let's start up a little. let's start with this. so how comfortable are you with using scientific reports as a way to persuade supreme court justices to see a certain legal

issue from a certain perspective? because i imagine you could say on the one hand, supreme court justices typically don't work the kinds of jobs that government ends up regulating. supreme court justices go from elite schools into elite law jobs than probably court judgeships. and then a supreme court seat, they're not working in factories earlier in life. so you could say that the kinds of scientific information in a case like mueller would have been really because that's not something that the justices would have had rattling around in their mind to begin with. right. so what do you guys think? how comfortable are you with using science as a way to advance a legal argument? now, let's start here. i was just thinking about that and i feel like with people using scientific evidence, it's

something that justices can't ignore because if they ignore it, then the public, i mean, their reputation could come under fire for not caring about the people who are supposed to protect and i also feel like it's effective way to kind of give up your judgment on a certain matter because you not the subject matter expert. yeah. so it's like knowledge of in a judicial humility that you don't know all the facts and you can't just get all the facts from first. emma got you did this then. curt mueller did that and then there was a lawsuit. there's more at place than that very narrow understanding facts. but one thing i would i would push back on a little bit if i was a supreme court justice, is the supreme court doesn't exist to protect anyone. supreme court exists ensure the stability in, uniformity of federal law. it's you know it's this really sort of heartbreaking thing that i when i tell students that the

court doesn't exist correct injustices there are thousands and thousands of cases appealed year and the court just doesn't have the time to intervene in all of them they're going to pick and choose and they're going to pick and choose largely based on where lower courts have different understandings about what the constitution means. the free speech clause can't mean one thing when enforced by a lower court judge in alaska, and the opposite when the same thing is enforced, a same issue in alabama. so if you have that conflict between some lower court judges thinking it means x and others say not x, that's when the supreme court intervenes. it's not looking for like, oh, my gosh, poor emma. gotcha that's the reason to take the case. but, you know, if they are going to take a given case, it would be good if they were able to not just bring their own subject matter expertise as lawyer, but

they can pair it with a understanding of why oregon thought that it needed the law, that it did. okay. other thoughts? yeah. jacob. yeah. the court has the power to to determine whether or not a state law falls within like a state police powers of what is promoting public health safety. i don't see how you can ignore science and solely use like a constitution to. yeah, yeah, yeah. we have a major, um, b.c. in public health, right? we have. we have, you know, a major in psychology like we produce students, we have higher faculty members that, you know, do the kind of research that would be really useful in legal disputes to try and figure out what the scope of a problem is and whether or not the strategy that the government is using to solve the problem makes. and that might not be immediate

apparent to a judge who has spent their entire life doing nothing but lawyer things, as opposed sort of social science things. so anyone want to argue the opposite, that it might be nice that the use of scientific evidence seemed to work out pretty well in mueller, but we should avoid getting too attached to that particular. our way of litigating court cases. um, so what i was going to say earlier kind of like brought this point up a lot was the, the connection that i found interesting about florence kelley when we were discussing mueller was that she was a daughter of an abolitionist at first. when i'm reading this case, of course, like when like read versus read or other court cases with white women, it's white women. so a little concerned. know what kind of women we're trying to protect when we're arguing for that kind of side and that misogynistic. but when i researched more about

florence kelley, especially her connection to the naacp it's clear what kind of women were most likely being overworked, which is why she did not want this decision to happen. and especially during the time of reconstruction era. this is 1908, a lot black women are having to work and being overworked because there is no kind of like there's kind of, i guess like rubric for for black women. there's no kind of voice for black women. and of course, like not intersectionality has not been introduced in the courts because this is 100 years ago. and so i definitely agree with this law when it comes to science. obviously, the science that they're talking about, not black women included. i mean, there's historical context. all the time when bringing up science is of like what kind of women's bodies they're describing, are they depicting the court? it's never a black woman's body. and the fact that the objectification of black women is just so taboo that it's not even spoken about. it's very in this case. and so all i could think was i

tried to like research, like what kind of women were working at these laundromats or the population around that part of oregon. and i couldn't really find anything except for what florence kelley was saying. so i'm guessing it had a lot to do with women of color, which is why another reason why maybe the justices wanted to rule in that way and. talk more about like the matriarchal sense instead of like what's actually going and like the scientists that are in the case, i think is just not holistic so. sometimes i think when you're putting science in a case like it's not represented to all parts, it's not diverse, it's not inclusive. so it might have worked out because it worked out for the gender they want it to in this case, and i don't necessarily agree with that, it's fine to do that in every single case, especially concerning the 14th amendment. yeah, that raise any number of good points, some of which i think i'm going to need to bookmark and i want you to rephrase them when we to the deal because there has been there was a lot of tension

between feminist groups and civil rights groups from the civil war and reconstruction through the beginning of the 20th century and so, yeah, we're going to come back come back to that when we look at like who did the new deal benefit the most and the intersectionality is a huge concern. and i can't wait to go back to that. there's but i want to pivot to one more question since we're winding down in terms of time, and that is, you know, let's that you are friends with the gold marks or josephine kelly and you're over at their house you having a cup of tea and just chit chatting about, you know, all exploits that they're up to. and they said, yeah, no, we're we're scouring the new york public library for all these

facts, and we're going to put them together this brief and, you know, we're going to relate everything back to. we need this law so that women can not only be safe at work, but still have be enough to fulfill roles as wives and mothers. how should we view that? is that two steps forward, one step back? is that progress? and who cares how the progress is achieved since know a lot of people still to this day think that it's important that no matter if a woman works or not, that they participate in family life. in other words, like politics is oftentimes the art of the possible. right. and i think you're going to give the gold marx and josephine kelley credit. it's for figuring exactly where they could to make at least some difference or others of you concern that like no by sort of

doubling down on some of these stereo types, it's actually going to make it harder for women's rights on a whole bunch of fronts to advance over in the long run. so what how we view these strategic decisions. yeah i agree with what name is and i want to agree with a lot of points she made earlier about intersectionality, the fact that like these women are only like basically like the front line of the movement, but they're not representing like the bunch of women that, first of all, suffer from infertility and might not even be able to have children also women that might not necessarily even want to get married and be wives. like they're thinking of like a very heteronormative idea of, like what women are supposed to be doing. and like a lot of women like nowadays they don't necessarily want to have children, don't necessarily want to live that like hetero normal lifestyle and like, in my opinion, like, i

understand, like the things that they were doing were very progressive at the time, but at the same time the fact that they weren't even given credit and it was written but like it was still being seen as written by a man shows that like there are steps being taken backwards, like not a women's movement. yeah, there was one thing that i think is really interesting. perhaps the, you know, the most important thing for not just women, but for any citizen is to be able to have the control over your life, have choices. and you're right i imagine, you know the gold marks are in covering research that finds that where women working extremely long hours extremely hazardous conditions. the choice basically you can either work this job and get paid some amount of money or like if you work it, it might it might make you infertile right. and so like at least this law, it gives you if you want to make

the choice to both have kids and work that that's a choice that is presented to you that didn't exist before the law existed. so, okay. um, let's see, you had your hand up, but she said she. okay. all right. who else? how should we view this? these tactics? yeah. um, i wanted to say my bracket. i don't come in for the right word, but it's commendable. like they made that progressive step with what was available at the time. i think it's kind of like taking advantage of the patriarchy and saying like, oh, need to protect us because you're so much like we need so much protection. right? but i do think it's kind of like taking out a loan in that like it sets precedent for like what think is okay to make decisions about women because like we need decisions made about us and like, like i'm thinking about like roe v wade and like the overturning that. but, um, yeah, i like that phrase taking out a loan based

on sort of the structure of a patriarchy because like the dealing with the implications of that bargain, you make occur long before roe. right. so one of the early cases, ruth bader ginsburg got involved with as a young lawyer was the constitutionality of a new jersey law that banned women from being bartenders. and the thought was, you know, bars are places where people don't behave their best selves. and let's face it, in new jersey, people behave all that well in general, whether there's alcohol involved or not. right. and so if you want to protect from getting beaten up, like just say like let let people run run a bar. and what ginsburg said was, okay, like, i see that. but, you know, who don't want to get in bar fights aren't going to be the ones applying to be bartenders.

new jersey to begin with, the people who are going to women who are going to want that job are the ones who think that they can stand up to, you know, the big brownies and they're you know idiocy when they get a little drunk. and so like by setting by sort of playing into the notion that, you know, women do need protection, like how far that go in ways that like create sort of assumptions about women's capacity down the line. and yeah, and that's way before you get to even thornier issues, privacy and bodily autonomy and, stuff like that. so thank you so much, you guys. this was great discussion and we will talk a little bit more abouti first speaker is dr. ricd

blackett, andrew jackson, professor of history emeritus at, vanderbilt university,