A Warm Reception

1L law firm reception season has been in full swing for several weeks, and I have yet to venture out for a free food/booze/smooze extravaganza. The reviews are, for the most part, positive--the beer and wine are of much better quality than debt-shocked law students can usually afford, and who can resist a nice cheese tray, anyway?

Well, I have, so far. I really don’t want to work for a BigFirm, and I don’t want to get sucked in by the receptions that probably cost more to host than your average janitor gets paid in four months. And, I know, most law students come to law school saying that they don’t want to work for The Man, and they end up in a BigFirm anyway to fend off the specter of crushing law school debt…but it would probably be a lot easier to avoid working at those firms if one didn’t go to every reception offered, giving the corporate lawyers a chance to expound on the virtues of corporate lawyerness.

Anyway, those receptions do look tempting. They’re at trendy bars and restaurants--places I’d never go otherwise. And the thought of spending an evening out with my section-mates is enticing. So, when I get the emails from the BigFirm announcing an upcoming reception, I always check out their website, hoping that they’ll be something other than what I assume BigFirms are.

But alas. The BigFirms are all, purportedly, cutting-edge, forward-looking international leaders in corporate law. They also boast about…well, here are some self-reported examples of their accomplishments.

Defending firearm manufacturers!
Helping corporations engage in outsourcing!
Providing advice to companies “regarding the maintenance of nonunion status”!
Defending corporations against charges of the illegal disposal of hazardous wastes! And conspiracy! And air contamination! And wire fraud! (Really, wire fraud?)
Ensuring injunctive relief from boycotts!
Serving as defense counsel in the national breast implant litigation!

One BigFirm even advertises how it helped a mineral company obtain a moratorium on environmental law enforcement for twenty years, since their mines just couldn’t comply with the African nation’s existing law.

Umm…congratulations?

Welcome!

Welcome to Lochner's Bakers!

This site is named for the (in)famous case Lochner v. New York in which labor regulations were ruled unconstitutional.

The State of New York passed a law that limited the working hours of bakers to 60hrs per week and 10hrs per day. Bakers worked in awful conditions similar to coal mines. They often worked all night long in sweltering kitchens with ovens full blast. Flour dust irritated their lungs and could cause serious respiratory problems. In the days before unions and OSHA, bakers had little power to insist on better working conditions.

For those not familiar with the history of constitutional law, it may surprise you to know that laws mandating overtime pay, limiting hours worked, or setting a minimum wage were once considered unconstitutional, as a violation of due process under the 14th amendment. The concept used was "substantive" due process; certain rights are so essential to free government that they cannot be violated unless required to serve an extremely compelling government interest. The idea is that these rights are "natural," that they preexist government as part of some eternal natural law (put a little more Plato in that enlightenment sauce!)

The right violated by labor law was “freedom of contract.” The employees were not allowed to work as much as they wanted. (Think the brainwashing video from Zoolander “the age-old right of kids to work.”) They were not allowed to bargain for higher pay for longer hours, instead the “paternalistic” state told them what to do. And, um, the employers also couldn’t make bakers work endless hours. That too. That’s a deprivation of liberty and property without due process!

Lochner was a landmark; several decades of similar rulings followed, invalidating over 200 laws that aimed to regulate labor or contract. The court didn’t consider leveling differences in bargaining power a compelling government interest. Instead, they stated that the oppressive conditions and abject poverty of certain portions of the workforce were a “natural” condition, that government couldn’t, shouldn’t, and shall not interfere.

The decision was 5-4.

Three dissenters thought that regulating hours would help ensure the health of the bakers and the public, and that this was a compelling interest adequate to overcome the "freedom of contract."

The fourth dissenter, Oliver Wendell Holmes disagreed for a different reason. He agreed that the law may be important for public health but further insisted that there was no "freedom of contract" of the kind suggested by the majority.

But Justice Holmes can speak for himself!

"This case is decided upon an economic theory which a large part of the country does not entertain... The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics.

***

[A] Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

Eventually Holmes' view was victorious... sort of. Substantive due process has since morphed in some interesting ways... but that is not the story of this blog. This blog is about government of/by/for the corporation; government gone wildly awry.

UPDATE:
The supreme court may bring back Lochner doctrine