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1983 Y.B. 53 (1983)
Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era

handle is hein.journals/jspcth1983 and id is 55 raw text is: Myth and Reality: The Supreme Court and Protective Legislation in the Progressive Era Melvin I. Urofsky On January 3rd, 1916, Louis D. Brandeis, then one of the leading Progressive reformers in the country, addressed the Chicago Bar Association on the challenges confronting the legal profes- sion, especially the waning respect among the populace for the law. He traced the problem to the failure of law to keep pace with rapidly changing social and economic conditions in the country. Political as well as economic and so- cial science noted these revolutionary changes, he declared, But legal science. . . was largely deaf and blind to them. Courts continued to ignore newly arisen social needs. They applied complacently 18th century conceptions of the liberty of the indi- vidual and of the sacredness of private property. Early 19th century scientific half-truths like 'The survival of the fittest,' which translated into prac- tice meant 'The devil take the hindmost,' were erected by judicial sanction into a moral law.I Brandeis, who within a few weeks would be nominated to the Supreme Court of the United States, expressed a complaint common among reformers in the early twentieth century. The in- dustrial revolution had wrought radical changes in the economic, political, and social relations of the nation; the United States now had a large urban workforce, men and women jammed into unhealthy tenements and hovels, working in un- sanitary and dangerous factories and mines for subsistence wages or less. The great increase in American productive wealth had come at an enormous cost in human misery. Reformers cor- related a number of problems to the growth of industry, and devised various remedies to protect workers, especially women and children, from the malignant effects of factory life. Protective legislation, including the establishment of max- imum hours and minimum wages, the abolition of child labor, and the creation of workmen's compensation programs all aimed at redressing the perceived imbalance between the lords of in- dustry and their ill-used workers. These campaigns, begun in the closing years of the nineteenth century, had proven fairly suc- cessful in the state legislatures, but then, refor- mers claimed, a reactionary judiciary, led by the Supreme Court of the United States, struck down one law after another, relying on hide-bound in- Louis D. Brandeis, a leading progressive reformer, introduced the use of the famous Brandeis brief in Muller v Oregon (1908).

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