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for anything in the appraisal of authority of a decision (itself decided by a divided court, and since departed from in effect in an important series of cases), it has been impressively arrayed against this decision. If ever an opinion has been subjected to the weightiest professional criticism, it is the opinion in the Lochner case. Judge Andrew Bruce, Professor Ernst Freund, Judge Learned Hand, Professor Roscoe Pound-to mention no others-surely speak with high competence upon this subject. Nevertheless, the body of persuasive authority which their writings present was not brought to the Court's attention and failed to be considered in the disposition of the case.1

The circumstances which resulted in this decision reveal anew a situation of far-reaching importance. For it affects the very bases on which constitutional decisions are reached and therefore affects vitally the most sensitive point of contact between the courts and the people. The statute under discussion may well have been of no particular social import. The decision which nullified it, one may be sure, offers no intrinsic obstruction to needed legislation and in itself has merely ephemeral vitality. But, unfortunately, the evil that decisions do lives after them. Such a decision deeply impairs that public confidence upon which the healthy exercise of judicial power must rest.

Under the present-day stress of judicial work it is inevitable that courts, on the whole, can only decide specific cases as presented to

1A. A. Bruce, "The Illinois Ten Hour Labor Law for Women," Michigan Law Review, Vol. VIII, p. 1; G. S. Corwin, "The Supreme Court and the Fourteenth Amendment," Michigan Law Review, Vol. VII, p. 643; Ernst Freund, "Limitation of Hours of Labor and the Federal Supreme Court," Green Bag, Vol. XVII, p. 411, "Constitutional Limitations and Labor Legislation," Illinois Law Review, Vol. IV, p. 609; L. N. Greeley, "The Changing Attitude of the Courts toward Social Legislation," Illinois Law Review, Vol. V, p. 222; Learned Hand, "Due Process of Law and the Eight Hour Day," Harvard Law Review, Vol. XXI, p. 495; Sir Frederick Pollock, "The New York Labor Law and the Fourteenth Amendment," Law Quarterly Review, Vol. XXI, p. 211; Roscoe Pound, "Liberty of Contract," Yale Law Journal, Vol. XVIII, p. 480. Cf. Mr. Wigmore's comment on "The Qualities of Current Judicial Decisions,” Illinois Law Review, Vol. IX, pp. 529, 530-531.

But see Atkins v. Grey Eagle Coal Co., 84 S. E. 906 (1915), where the Court of Appeals of West Virginia sustained a truck act, in effect overruling the decision in State v. Goodwill, 33 W. Va. 179 (1889), and cited among its authorities Professor Pound's article "Liberty of Contract," Yale Law Journal, Vol. XVIII, p. 480 (see above, Chapter XXXVII).

them. In other words, the substantial dependence upon the facts and briefs presented by counsel throws the decision of the courts largely upon those chances which determine the selection of counsel. These are, of course, necessary human drawbacks, and the practice works out well enough in controversies where purely individual interests are represented by counsel. This is not the situation in cases such as the one before the Massachusetts court. The issue submitted to the Court in fact was the issue as determined by the District Attorney of Worcester and counsel for the Boston and Maine Railroad. In truth, the issue was between the court and the legislature. In such a case either the legislative judgment should be sustained if there is "no means of judicial determination" that the legislature is indisputably wrong, or the court should demand that the legislative judgment be supported by available proof. It would seem clear that courts have inherent power to accomplish this by indicating the kind of argument needed to reach a just result or even by calling for argument from members of the bar-officers of the court-of particular equipment to assist in a given problem. If legislation be necessary, New York furnishes an example in its recent enactment authorizing the courts to request the attendance of the attorneygeneral in support of an act of the legislature when its constitutionality is brought into question.5

These, after all, are only expedients. Fundamental is the need that the profession realize the true nature of the issues involved in these constitutional questions and the limited scope of the reviewing power of the courts. With the recognition that these questions raise, substantially, disputed questions of fact must come the invention

1 See Mr. Justice Swayze in "The Growing Law," Yale Law Journal, Vol. XX, pp. 1, 18-19. People v. Schweinler Press, 214 N. Y. 395, 411, 108 N. E. 639, 643 (1915).

2 Hadacheck v. Sebastian, 239 U. S. 394, 413 (1915); Price v. Illinois, 238 U. S. 446, 452 (1915).

3 Professor Ernst Freund, "Constitutional Limitations and Labor Legislation," Illinois Law Review, Vol. IV, pp. 609, 622.

4 It is interesting to note that the chief arguments in the series of cases beginning with the Muller case were made by an amicus curiae, Mr. Louis D. Brandeis, in behalf of the National Consumers' League.

5 New York Laws, 1913, chap. 442, p. 919.

6 See Harvard Law Review, Vol. XXVIII, p. 790.

of some machinery by which knowledge of the facts, which are the foundation of the legal judgment, may be at the service of the courts as a regular form of the judicial process. This need has been voiced alike by jurists and judges.1 Once the need shall be felt as the common longing of the profession, the inventive powers of our law will find the means for its satisfaction.

HARVARD LAW SCHOOL

FELIX FRANKFURTER

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1 Professor Roscoe Pound, in "Legislation as a Social Function," Publications American Sociological Society, Vol. VII, pp. 148, 161, says: "In the immediate past the social facts required for the exercise of the judicial function of lawmaking have been arrived at by means which may fairly be called mechanical. It is not one of the least problems of the sociological jurist to discover a rational mode of advising the court of facts of which it is supposed to take judicial notice." So (in dealing with a somewhat similar problem) Judge Learned Hand, in Parke Davis & Co. v. Mulford & Co., 189 Fed. 95, 115: "How long we shall continue to blunder along without the aid of unpartisan and authoritative scientific assistance in the administration of justice, no one knows; but all fair persons not conventionalized by provincial legal habits of mind ought, I should think, unite to effect some such advance." Cf. also Steenerson v. Great Northern Ry., 69 Minn. 353, 377, 72 N. W. 713, 716 (1897).

IN

XXXIX

COLLECTIVE BARGAINING BEFORE THE

SUPREME COURT1

[N THREE important cases a majority of the United States Supreme Court has thwarted efforts of labor unions to increase their numbers. In all three there was vigorous dissent. All three were opposed to the judgment of the court below. The first two found statutes wanting in the requirements of due process of law. Adair v. United States annulled an act of Congress which prohibited interstate carriers from discharging an employee because of his membership in a labor union. Coppage v. Kansas declared invalid a state law which forbade any employer to require of employees or of persons seeking employment an agreement not to become or remain a member of a labor union. The third decision is Hitchman Coal and Coke Company v. Mitchell et al., handed down last December. It deals with a situation created by the type of agreement which Kansas sought unsuccessfully to forbid. Officers of a labor union were restrained by injunction from securing secret promises to join the union from employees who had agreed to relinquish their employment in case they became members.

Each of these decisions was rendered in the name of freedom and liberty. But since each dealt with conflicting interests, each necessarily involved interfering with liberty as well as protecting it. The majority judges of the Supreme Court must have thought that the liberty they safeguarded was for some reason entitled to more consideration than the liberty they curtailed. And the minority and the judges below must have held contrary views. The importance of the decisions and of the court which rendered them may make it profitable to review the various opinions and try to arrange the controlling

1 From Political Science Quarterly, Vol. XXXIII (1918), pp. 396-429. 2 208 U. S. 161 (1908).

3 236 U.S. 1 (1915).

4245 U. S. 232 (1917).

8

reasons for the divergent views. In so far as the opinions do not lend themselves to this purpose an endeavor will be made to indicate the fact. It not infrequently happens that a judicial opinion, like the arguments of counsel, starts from a selected premise which has in it the seeds of a desired result, and neglects to weigh that premise in even scales against competing premises which are equally significant but which bear other fruit.

Only four of the judges sat in all three cases. Of these Chief Justice White was consistently with the majority, and Mr. Justice Holmes with the minority. Mr. Justice McKenna was with the majority in the Coppage case and the Hitchman case, and with the minority in the Adair case. Mr. Justice Day dissented in the Coppage case and concurred in the other two. Justices Pitney, Van Devanter and McReynolds sat in the Coppage case and the Hitchman case and concurred in both. With them in the Coppage case was Mr. Justice Lamar; against them, Mr. Justice Hughes. Chief Justice Fuller and Justices Harlan, Peckham, and Brewer, completed the majority in the Adair case; and Justices Brandeis and Clarke, the minority in the Hitchman case.

I

The Adair case involved no dispute as to the facts, as the respondent by demurring to the indictment confessed that he had discharged an employee of an interstate railroad because of his membership in a labor union. The sole issue before the Court was the constitutionality of the statute forbidding such discharge. And the opinion of Mr. Justice Harlan maintained its unconstitutionality by asserting it.

Adair was an agent of the carrier. It was his right, says the learned justice, "and that right inhered in his personal liberty, and was also a right of property, to serve his employer as best he could, so long as he did nothing that was reasonably forbidden by law as injurious to the public interests." This seems a prelude to a consideration of the question of reasonableness. But we are not thus favored. Instead, we are informed again that "it was the right of the defendant to prescribe the terms upon which the services of Coppage [the employee] would be accepted, and it was the right of Coppage to become or not, as he chose, an employee of the railroad company upon the terms offered him."

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