Many of the most important cases in American constitutional law have not involved true cases or controversies. Instead, they involved individuals or organizations who intentionally set up a test case to challenge a law they disliked. Prominent examples include Plessy v. Ferguson and Griswold v. Connecticut.
I think we can add Lochner v. New York to that list. Joseph Lochner was accused in early 1902 of allowing baker Aman (sometimes referred to in newspaper reports as Amand or Armand) Schmitter to work more than ten hours in one day in Lochner’s bakery. Various sources, including one as early as 1905, state that Schmitter stayed late voluntarily to learn cake-making, but I’ve been unable to discover the source of this detail.
It’s obvious that Lochner eventually became a test case. Lochner presented no evidence to challenge the prosecution, and instead allowed himself to be convicted so he could appeal. And it’s no secret at this point that Lochner’s attorneys were paid by the New York Master Bakers Association, which had resolved to challenged the hours law.
But did the case start out as a test case, or just develop into one? Contrary to what I have previously written, when I surmised that the complaint against Lochner was initiated at the behest of the bakers’ union, the evidence suggests the former.
In particular, it turns out that Schmitter himself swore out an affidavit against Lochner, and it’s highly unlikely that Schmitter was an agent of the bakers’ union. I’ve discovered a newspaper report from 1895 stating that the union tried to fine Lochner because he allowed Schmitter to live in his home, contrary to union rules that Lochner had agreed to obey. Schmitter begged the union to drop the complaint, explaining that he had nowhere else to live.
I’ve discovered another newspaper report from 1898, stating that Lochner and Schmitter, who now owned his own bakery, traveled together to New York City. Finally, Schmitter’s 1941 obituary noted his long employment in Lochner’s bakery.
So here we have an individual who lived in Lochner’s home, who resented the union for interfering in his relationship with Lochner, who was friendly enough with Lochner to travel with him, who was a former bakery owner himself, and whose family was proud enough of his service as a Lochner employee to have it mentioned in his obituary. This doesn’t sound like a person who would have tried to get Lochner criminally prosecuted under a union-sponsored law, especially not for teaching him cake-making after hours!
Add that to the fact that Lochner was active in both the Utica Master Bakers Association, and the state association, and the evidence strongly suggests that Lochner and Schmitter had cooked up the latter’s complaint as a mechanism to challenge the hours law.
anomdebus says:
Insist on standing and you will find people searching for a place to stand.
March 17, 2010, 12:10 pmCalderon says:
Thanks for the post; I found this to be interesting historical material. I wonder why such “test cases” are no longer brought in modern times. I guess one could argue greater media scrutiny now, but I’m not really sure there’s more scrutiny now that in the late 1800′s and early 1900′s. Maybe it’s just changing beliefs about how the courts are to be used, or how the courts will let themselves be used.
I also was curious how your research affects arguments that the law at issue in Lochner was a special interest, rent-seeking law. In short, I’ve heard claims that the hours limit at issue in Lochner was lobbied for by larger, established bakeries who work two shifts of bakers for relatively shorter hours, and were concerned about competition from upstart bakeries who had less business and thus ran only one shift of bakers, but for longer hours. Any accuracy to this story? I admit as a libertarian I’d be amused if it were true, but I wouldn’t be surprised if it were a post-hoc attempt to fit the Lochner law into a particular political framework.
March 17, 2010, 12:27 pmShelbyC says:
Wasn’t there some speculation that Lawrence was a test case?
March 17, 2010, 12:31 pmBZ says:
Always thought this was kind of a half-baked case.
March 17, 2010, 12:33 pmDavid Bernstein says:
The larger bakeries benefited from the law, and tacitly supported it, but the real push for the law came from the bakers’ union. Unionized bakeries already worked in 10 hour shifts, but their old-fashioned basement-based competitors were set up to have the bakers on call 24/7, generally working more than ten hours a day. The law plus technological advances gradually were undermining the old-fashioned bakeries, and the major opposition to the ten-hour law came not from the basement bakeries, but from small, non-unionized bakeries like Lochner’s. The owners thought that the union was using the ten-hour law to harass them, and, indeed, the union willingly agreed to contracts that provided for overtime despite the law, but aggressively tried to prosecute non-union bakeries who defied the law.
March 17, 2010, 12:35 pmCrazyTrain says:
David — I am curious about something: Setting aside what you see as the overwrought criticism of Lochner, do you believe it was correctly decided? I know you would not have concurred with Justice Holmes. But would you have agreed with Justice Harlan’s dissent? which as a I recall accepted the basic premise of the majority but thought that the law could be justified against the liberty interest identified
March 17, 2010, 12:50 pmCalderon says:
Interesting; some Google research came up with a book by Janice Law arguing that the facts in Lawrence were staged and that Lawrence and his partner (Garner) wanted to get caught to challenge the law, that police were brought to their home by false reports of someone with a gun, that Lawrence and Garner kept on … vigorously engaging in (then) illegal activities in full view of the police, and that Lawrence and Garner pled no contest and never disputed the facts at trial.
All that said, to me a “test case” is one where the defendant and plaintiff (or the plaintiff’s originating or key witnesses in case of criminal or administrative prosecutions) collaborate in bringing the case. My brief research on Lawrence didn’t reveal any claims that the police or the State of Texas collaborated with Lawrence or Garner in helping them to challenge the law.
Also, thanks to DB for responding to my question.
March 17, 2010, 12:54 pmShelbyC says:
On further reflection, you’re probably correct, given DB’s reference to “true cases or controversies”. I seem to remember reading somewhere that there was some recent case law limiting standing in cases where the defendent and plantif collaborate.
March 17, 2010, 1:02 pmRandy says:
“n short, I’ve heard claims that the hours limit at issue in Lochner was lobbied for by larger, established bakeries who work two shifts of bakers for relatively shorter hours, and were concerned about competition from upstart bakeries who had less business and thus ran only one shift of bakers, but for longer hours.”
And today, you can’t find a decent Danish pastry in even large cities. To think that there once was a time when real bakeries were actually competing to make the best kuchen or eclair. (sigh)
” a book by Janice Law arguing that the facts in Lawrence were staged” to which she offered no evidence other than her own speculation. And her argument was along the lines that since it was entirely stated, we should all be able to ignore the ruling, or something along those lines. Or maybe it was that the evil conniving homos staged the case just to embarrass Texas, and so it isn’t good law. If anyone else can figure it out, I’d love to hear it.
March 17, 2010, 1:04 pmShelbyC says:
I agree, I’ve never been able to figure out why anybody thinks it matters if the case was staged. IIRC Janice Law made reference to the supreme court being “duped” but AFAIK even if said conniving homos stood up in open court and said, “damn straight we staged it” I don’t think it would make a difference, from a legal point of view.
March 17, 2010, 1:12 pmDavid Bernstein says:
“Staging” matters in the Lochner situation because without Schmitter as a witness, the government had no case (unlike Lawrence v. Texas, where the cops saw the legal violation with their own eyes).
March 17, 2010, 1:19 pmGuesty says:
I don’t think you can fairly consider Griswold a test case either. It came after multiple decades of lobbying and lawsuits, including Tileston and Poe. There was no collusion by the CT officials either.
March 17, 2010, 1:26 pmGuesty says:
David Garrow’s Liberty and Sexuality is one of the best history books written about any legal battle and it’s definitely worth a read to learn more about it.
March 17, 2010, 1:26 pmDavid Bernstein says:
Barbier v. Connally (1884) did involve collusion with government officials, but the collusion there was to intentionally bring a weak case so the government would lose. I don’t think government collusion is needed to call something a test case.
And I think Harlan’s Lochner dissent is reasonable.
March 17, 2010, 1:29 pmanomdebus says:
David @1:19
March 17, 2010, 1:36 pmDid the law only apply to actions against the will of the employee? If not, then the employee just needed to state the fact that he did in fact work more than 10 hours in a day in order to make the case. Therefore, whether he did it voluntarily or not does not matter.
David Bernstein says:
Lochner actually won another trial in which he says that one of his workers stayed late even though Lochner ordered him to leave. So voluntariness has some bearing. Plus, if you are going to set up a test case, you want sympathetic facts.
March 17, 2010, 1:41 pmCrazyTrain says:
I find it very odd that you don’t want to go on record (even in a blog comments section) as to whether Lochner was correctly decided. Maybe you do in your book.
March 17, 2010, 1:57 pmanomdebus says:
I am out on a limb here since only have a slightly better than popular understanding of Lochner and none of this other case. However, that other case you speak of might just revolve around who is liable; in that case it wasn’t Lochner but the other employee. So as long as Lochner did not order Schmitter to leave, he is liable despite other circumstances.
March 17, 2010, 1:59 pmAs far as sympathy, all I can say is I wish that had no bearing, though I can see where clarity is useful.
KevinM says:
Schmitter was welcome in Lochner’s home. In fact, if he’d known he was coming …
March 17, 2010, 2:03 pmDilan Esper says:
Wasn’t there some speculation that Lawrence was a test case?
I am not sure about Lawrence, but Bowers (which Lawrence overturned) was definitely a test case.
US v. Eichman (the second flag burning case) was also a test case.
March 17, 2010, 2:07 pmKevinM says:
By the way, I distinguish between a “test case” and a collusive one. The Lawrence plaintiffs didn’t concoct this scenario with the aid of the police; they merely made a point of violating the law in front of the police. Scopes, same deal. Rosa Parks, may have been a tired seamstress, but she was also a proud civil rights advocate who got in the authorities’ face on purpose, and good for her. None of these scenarios would undermine the legitimacy of a case or controversy, in my view.
March 17, 2010, 2:08 pmDave N. says:
I set up a test case for my state supreme court. I saw an issue that I thought needed resolution and allowed a defendant to enter a conditional guilty plea so that his attorneys could appeal on the issue I thought needed resolution.
I ended up losing the appeal, but not on the basis I set the case up. That soured me on the concept of ever trying to create another “test case”.
Ironically, the defendant disappeared and his attorneys were never able to inform him of his “victory”.
March 17, 2010, 2:16 pmHarvey Mosley says:
Randy, we don’t agree often, but when we do, we really do :)
March 17, 2010, 2:22 pmDave Hardy says:
If my memory is correct, there is at least serious suspicion that Dred Scott was based on collusion. His owner, whose interests were represented by Sanford, turned out to have been married to a prominent abolitionist. After the Court ruled, she “sold” Scott to one of his childhood friends for a nominal sum, and the friend freed him. All in all, rather strange.
March 17, 2010, 2:58 pmBC says:
What, you’re telling me that the heroic statist narrative of how the Lochner Court usurped the people’s right to make reasonable employee health and safety regulations is false? That the challenged law wasn’t really about worker health and safety at all, but at protecting unionized shops from competition?
I am shocked. Shocked, I tell you.
March 17, 2010, 5:57 pmRoscoe says:
Speaking of test/collusive cases, I remember some years back reading an article that Mapp v. Ohio was one. According to the article, contemporaneous newspaper stories as well as police files indicate that the cops actually had a warrant. I don’t remember the details, but I remember that the article seemed well sourced.
March 17, 2010, 8:37 pmJ. Aldridge says:
Academics don’t like to draw attention to themselves by questioning the status quo, no matter how wrong they think it is.
March 17, 2010, 8:41 pmED Maven says:
Try Penn Central Transportation Co. v. City of New York. SCOTUS held that it was no taking for the city to deny Penn Central the entitlements to build a tower on top of Grand Central terminal. But at the trial court level there were no constitutional issues; the question was whether Penn Central’s claim of an operational deficit established a violation of the NY Historical Preservation Law which guaranteed the regulated owners a positive cash flow. Penn Central argued (and proved) that its cash flow was negative, thus winning at trial. The NY Appellate Division reversed (one Judge dissenting) on the grounds that Penn Central used wrong accounting methods to prove its case, and did not disuss any constitutional issues.
The NY Court of Appeals, went off on a neo-Georgist diversion, and without deciding any constitutional issues or discussing any federal takings law, held that a NY property owner was not entitled to a return on the value of its property, but only to a return on that increment of value attributable to private entrepreneurship. So in order to succeed, Penn Central would have to establish that on remand. Instead of re-presenting its case on remand, Penn Central petitioned for cert which was granted.
In the US Supreme Court Penn Central did not seek a review of the NY Court of Appeals holding, but for the first time asserted that the city took its air rights over Grand Central teminal – a point that was neither pled nor considered by the state courts.
So technically, SCOTUS had no jurisdiction to decide this case for that reason, and also because the case wasn’t final — remember that the NY Court of Appeals granted Penn Central a right to re-present its case on remand in an effort to meet the new test, but Penn Central did not do so. Instead it petitioned for cert, expressly abandoning its core contention that it had pursued below — i.e., that it was being denied a reasonable return on its property.
SCOTUS thus reviewed a non-final case and decided a constitutional issue never raised below.
March 17, 2010, 8:53 pmDavid Bernstein says:
Define “correctly decided.”
March 17, 2010, 9:50 pmuberVU - social comments says:
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