Chapter 38: The Liberals of the Age of Laissez Faire I.

Laissez Faire Started at the end of the Civil War and lasted in the 20th century. Growing interest in the protection of rights of property was accompanied by a minimum of social consciousness. An era of enormous increase in industrial development, the time of the growth of the Big Business baronies known as The Gilded Age While Professor Parrington called it The Great Barbecue a. President Grants administration was full of scandals no less unpleasant than those of the Harding administration. A democrat who ended as a full partisan of power. b. Presidents Garfield, Hayes and Arthur were all of the party of Lincoln, which eventually lost its initial idealism after the death of the Great Emancipator and become a compromise association of diverse self-seeking groups. The Republicans who succeeded Grant were disinclined to interfere with the generally prosperous and satisfactory condition of the country. The Democratic Party was prostrate after the Civil War and it also contained dissident and conflicting elements. It was apparent that there was little to choose between the parties except on a sectional basis. II. Henry George (1839 1897) Income Tax Law enacted under President Taft, which represents a medium for the return to society of an unearned increment of profit. (Product of his advocacy) He claimed that the worst or only serious monopoly was the land monopoly. He advocated a single tax wherein he believed would solve all of the economic and social problems. He started with the premise that the land belonged to the people and could not be permanently alienated. However, he did not advocate any equal distribution of land. He recognized that land had to be exploited and that the immediate user of it must be protected in his use. He conceived of the proper use of the land as renting it to the highest bidder by focusing the taxing power solely upon the land and that the concentration of taxes on rent would solve the basic problem of land monopoly. unearned increment income resulting in the unfair exploitation of the work of others and the inequitable division of the sum total of production; landlord was benefitting by something either existing as a natural geographical factor or created by society. III. Labor Accelerated the reform movement through its own organized efforts. -It found it necessary to organize to protect itself against the rapacity of the new industrial overlords. -It exerted strong pressure not only for the alleviation of industrial ills but also for sociological reform. W.H. Sylvis

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-saw the necessity of organization and in 1866 he formed the National Labor Union but disappeared by 1872. -during that time, wages were small and labor could not accumulate great funds for its cause and opposition was constant. -government was unsympathetic, and employers penalized those who showed any sympathy with unionism. Noble Order of the Knights of Labor - An organization made secret in order to protect its members from punishment by employers. - It suffered from opposition by the craft unions because it welcomed the unskilled as well. - It died early because of the organization in 1886 of the American Federation of Labor. American Federation Labor - A craft organization by Adolph Strasser and Samuel Gompers - It grew in strength until it had the power to challenge those legislators who were unwilling to take any step against the interests of wealth and power. Fight for labor - Unionization - Collective bargaining - Better wages - Better working conditions Major Objective of organized labor - Recognition of the right to unionize - Right of collective bargaining New Deal Period - Compulsory recognition of unions and collective bargaining became a law Sherman Anti-Trust Act - Labor unions must be enjoined Clayton Act - Woodrow Wilson - Amendment to the Sherman Act - Unions were not to be deemed in restraint of trade and could not be enjoined in a labor dispute. Department of Labor (1913) - Cabinet officer as the head - Was formed when the federal government was induced in 1884 to give official recognition of the problems of labor by creating a special Bureau of Labor Statistics Political Reform Civil Service Act of 1883 - First step for social reform Australian Ballot - A further important step introduced in acquiring social reform Other measures of political reform - Initiative - Referendum

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- Recall Initiative and Referendum - Distinctly Jeffersonian in their effect of increasing democratic control by enabling the people to take a direct part in legislation Recall - Enabled the people to remove public officers - It could even be used against judges at will 17th Amendment - Provided for the democratization of the Senate, wherein when Senators were directly elected by the people, the Senate than had nothing left to its original semi-aristocratic character. Theodore Roosevelt Era Theodore Roosevelt most picturesque reformer - Symbol of the second period of the laissez faire era, a period in which the pressure behind the reform movement was gathering strength and energy. Interstate Commerce Act - Enacted in 1887 - So weak that it was of almost no use in controlling the evils of the new capitalism. Federal Trade Commission - Right to act in instances of unfair competition and trade restraint. - An extremely useful instrument for curbing improper combinations. - Interstate Commerce Commission was also made a regulating body and extended in power by the Hepburn Act in 1906 and the Mann-Elkins Act of 1910. - The states began to enact legislation to provide minimum standards in industry for women and children due to labor and liberals pressing even harder for social legislation. 1906 - Congress limited the number of hours of work for trainmen and telegraphers engaged in interstate commerce - Adamson Act (1916) railroad mans day was confirmed at 8 hours. - Under Theodore Roosevelt, common carriers in interstate commerce were made responsible for injuries to employees occasioned by their employment. 1916 - Keating-Owens Act was enacted to proscribe child labor by preventing the shipment in interstate commerce of articles manufactured by plants using the labor of children under 14, or those between 14 and 16 for too arduous periods of work. - However, the act was held unconstitutional. 1924 - Congress passed a child labor amendment to the Constituion permitting Congress to legislate the regulation of child labor not ratified. - In general, the stated were unwilling to surrender this legislative right to the federal government.

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VII.

Reform in the States By 1910 - All states had at least a workmens compensation law. - A good deal of moral legislation against gambling, cigarettes, alcohol, racing and prostitution was evident in this period. - Women came in gradually acquiring equal rights with men and they came to be specially protected. - Common Law marriages were recognized. - Arbitration laws were widely adopted - small courts were established for the trial of small claims. Criminal Law - Minors were protected through the creation of special courts for their trial - Age of criminal responsibility was raised - Habitual criminals were more severely treated. Woodrow Wilson Woodrow Wilson - An unsuccessful lawyer but a successful educator - An able administrator as Governor of New Jersey - He was elected by a minority, when part of the Republican Party split off into the Progressive Party of the rebellious Theodore Roosevelt. Progressive Legislation enacted by Wilson - Adamson Act - Clayton Act - La Follettes Seaman Act which exempted labor from the operation of the anti-trust laws. Federal Reserve System of Banking - Purpose: to decentralize the money power by establishing branch government banks in various cities. - Idea: get away from the bad boys of Wall Street 1916 - Farm Loan Act wherein he injected the federal government into the lending business which then gave the farmers new borrowing resources at reasonable rates of interest. 18th Amendment (Prohibition Amendment) and Volstead Act - Enacted during his administration - Ushering an era of wholesale violation of law and the building up of new industrial and commercial empires, ruled with machine guns and triggermen. Volstead Act (National Prohibition Act) - Became law in 1919 - Held constitutional by the SC Controversial Acts - Espionage Act of 1917 - Sedition Act of 1918 wherein criticisms to the administration during the war is a crime.

19th Amendment - Enacted during Wilsons regime - An act giving women the right to vote Warren Gamaliel Harding -after Wilson era - Liberal -coined the word normalcy which according to Daugherty (Attorney General) is the securing sweeping labor injunctions, for strikes were deemed to be completely against the public good. Industrial Rehabilitation Act of 1920 - A liberal measure offering assistance to states to help rehabilitate those injured in industry or occupation. Sheppard-Tower Act of 1921 - Granted federal appropriations to states to welfare work for the benefit of mothers and infants at childbirth - Rejected because many states considered this as an interference with their own province. Advantages: - Aid to agriculture - Increase in rural credits - Encourage co-operatives - Extended federal control of agriculture - Instituted supervision over stockyards and grain speculation - Increased powers of the Interstate Commerce Commission due to the SC showing considerable liberalism in approving a measure intended to make the strong railroads carry the weak by paying part of their profits in a national fund for common financing.

Chapter 39: Oliver Wendell Holmes, Jr. I. The Grand Old Man Oliver Wendell Holmes, Jr. - Was a conservative and a philosopher - Born in Boston in 1841 - Author of the book The Common Law, a book of remarkable erudition and an extremely able exposition of the basis of the common law. - Retired in 1932 at the age of 90. II. Holmess Approach Waves of Political Liberalism during his term 1. Square Deal of Theodore Roosevelt 2. New Freedom of Woodrow Wilson 3. New Deal for Franklin Roosevelt Social Experiment According to Holmes, he believed that the people had the right to experiment in government if they cared to.

His approach was eminently philosophical, but his philosophy was realistic and inclined to the fulfilment of a workable democratic state. Constitution According to Holmes, the provisions of the Constitution are not mathematical formulas having their essence in the form: a. They are organic living institutions transplanted from English soil. b. Their significance is vital, not formal c. To be gathered by considering their origin and the line of their growth and not simply by taking the words and a dictionary. Public Policy As stated by Holmes, public policy can change and judges must determine public policy only in the light of what the public itself deems public policy to be.

Chapter 40: Franklin D. Roosevelt I. The Planned Economy of the New Deal Banking Act of 1933 - An act on bank reform measure was devised due to the closing of banks as ordered by Franklin Roosevelt. - Next important reform measure was the abandonment of the gold standard. Hence, on April 5 the president issued an order prohibiting all transactions in gold. Agricultural Adjustment Act of 1933 - An act that gave bonuses to farmers who ploughed their crops under or slaughtered their pigs. - Secretary of Agriculture was given the right to assess and adjust a tax upon the processors of farm products to maintain prices at the levels of the period before WW1. - However, this was declared unconstitutional in 1935 National Industrial Recovery Act (NIRA) - An act which is contrary to the general character of the American economic system. However it was enthusiastically welcomed by a great part of the business community. - Objectives: 1. Remove obstructions to the free flow of interstate and foreign commerce 2. Provide for the general welfare 3. Induce and maintain united action of labor and management under adequate government sanctions and supervision 4. Eliminate unfair competitive practices 5. Promote capacity of industries 6. Avoid undue restriction of production 7. Increase the consumption of industrial and agricultural products by increasing purchasing power

8. Reduce and relieve unemployment 9. Improve standards of labor 10. Rehabilitate industry and to conserve natural resources President Given the right to impose maximum working hours, minimum rates of wages, and other working conditions for labor. - Authorized to enjoin the importation of foreign merchandise which imperilled the maintenance of any code Regulatory and restrictive laws - Food, Drug and Cosmetic Act - Securities Act (Securities and Exchange Act)

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Priming the Pump Emergency Relief Act - Approved in May 1993 - An act wherein the federal government made grants to the stated for issuing relief payments to the unemployed. - Authorized the purchase of surpluses in the open market for distribution through state and local authorities. - However, it was widely condemned dole Other measures promulgated by the President to alleviate unemployment: - Unemployment Relief Act of 1933 - Civilian Conservation Corps - Civil Works Administration - However, these programs did not work. Pump Priming - A theory by the president wherein he stated that we could spend ourselves out of the depression and into prosperity by increasing the purchasing power of the people. Projects of the President under Public Works Administration 1. Tennessee Valley - Project to dam the waters, create power plants and develop the adjacent areas 2. Emergency Housing Division (1933) - Housing Corporation was authorized to buy land, build houses and finance local projects. 3. Resettlement Administration - Created in 1935 to attempt to improve rural housing conditions and to increase employment. Social Justice Social Security Act - an act to protect the people from the cradle to the grave Wagner-Connally Labor Relations Act or Wagner Act - Most important step taken by Roosevelt in his program of social justice

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An act wherein the president wanted higher wages not only because of their pump priming effect but also because he believed that labor should receive a greater share of the income of the nation. - This act forbade any employer to interfere with or dominate a union, compelled collective bargaining, and established a Labor Relations Board to supervise the executive machinery of the Act. - However, this Act did not regulate wages and hours. Walsh-Healy Government Contracts Act - An act which made certain conditions of employment prerequisite to the granting of government contracts, an effective means of regulating wages and hours.

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F.D.R. and the SC SCs functions - Right to determine the constitutionality of legislation, and this right was secured by the work of John Marshall. - Without independence, the Court could not exercise this vital function. - It would be subservient to other branches of government, legislative or executive. - Hence, it is to be expected that the Court would, from time to time, change complexion as its membership changed. Administrative Elephantiasis New Deal Period - A growing tendency toward increased administrative agency in the government was rapidly accelerated by the creation of the great multitude of alphabet soup agencies - As led by Pres. Roosevelt, they concluded that the greatest happiness for the greatest number required intensive and broad government regulation. Administrative Procedure Act - A measure long studied and finally recommended by the American Bar Association to make practice before government agencies somewhat uniform, to give certain safeguards to the public, and to give protection against administrative absolutism by assuring the right of judicial review. The Group Pressure System It is where good deal of laws has been made through the pressure of the different organized groups upon our legislators, and it is a regrettable fact that the present groups are becoming ever more efficiently implanted for pressure. Organized Labor (pressure group) - It makes its presence and its desires known to legislators and to politicians(federal and state) with great political strength - It maintains well organized bureaus with money to expend for the purpose.

Chapter 41: Roscoe Pound and Legal Philosophy

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Our Law in Flux Uniformity of Law (Evolution?) - Need: a proposal or desirable objective wherein the states adjust their laws as much as possible to the end that there are as few local differentiations as possible. - Growth: Filed of Business Law (Partnership and Bill and Notes) - Judges and Courts: issued a number of restatements of various fields of law, such as the law of trusts, these restatements might be classed as textbooks or commentaries that would have a great effect in unifying the interpretation of the common law. - Codification: Principle of stare decisis wherein after a set of laws is codified there is still a need to follow the cases decided under it to determine by what precedents we are bound. - Law Schools - Legislatures: created legislative drafting bureaus wherein its function is to draft bills which legislators wish to present. Criminal Law Act (Crime) - Act itself is now of no consequence in determining responsibility. - Mere committing of an act is not intrinsically wrongful. - Test of criminality: degree of the danger shown by experience to attend that act under those circumstances. - One cannot be excused by a plea of ignorance of the law; the greater good to society comes from enforcing laws even against the ignorant. Intent Is, by itself, of no consequence. However it has been made a necessary degree-factor in many crimes (i.e. murder in the first degree) The Difficulties of Reform Those who wish to regulate, as much as possible, and those who wish to have as little regulation as possible Those who believe that the majority should reign absolute and those who believe that protection of the minority to be the primary concern. Those who consider that the individual is of no consequence in comparison with the rights of the mass, and those who believe that the individual and his rights are all important. The Aid of Philosophy Justice -Aristotle: Justice as the mean between two extremes. - excess (one extreme) -deficiency (other extreme) -virtuous/just (middle extreme) -Signifies peace an adjustment of conflicting interests. Roscoe Pound theory of interests (1921, part of his thesis) -

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The law must determine between conflicting sets of interests. Whether that produces justice in any abstract sense is unimportant, for the law must find a way to enable people to live together. - Social/ethical interests - Public interests Theory of rationalism - Based upon the premise that sound principles can be ascertained only by human reason. - That knowledge obtained by the senses is false or unreliable. - One must seek for self-evident principles. - Rationalists: advocated natural law