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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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