Wednesday Writs for 10/31/2018

Justice Rufus Peckham, Author of the Lochner Decision

Justice Rufus Peckham, Author of the Lochner Decision

[L1]: In 1905, SCOTUS ruled that labor laws which limited work hours were a violation of the 14th amendment, citing an improper intrusion on “economic due process” and the right of individuals to enter into contracts under terms they saw fit. That was Lochner v. New York, our case of the week.

Lochner v. New York has long been considered one of the great SCOTUS failures, alongside Dred Scott and Plessy v. Ferguson*. However, Lochner still has its proponents, who find it stands for economic freedom and free market principles. Georgetown Law professor Randy E. Barnett wrote this defense of Lochner and raises some great points, for those inclined to read more:

In this case, Joseph Lochner was deprived of both his property and his liberty. He was fined for violating the Bake Shop Act, thereby depriving him of his property, and then he was jailed for failing to pay the fine, depriving him of his liberty. The constitutional requirement of “due process of law” poses two questions. First, was the legislation that deprived him of his property and liberty really a “law,” or was it—as Samuel Chase said in Calder v. Bull—“[a]n act of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact [that] cannot be considered a rightful exercise of legislative authority?”3 Second, does the “due process of law” guarantee a judicial forum in which a person can contend that this act of legislation was not truly a law?

[L2]: There have been a lot of stories recently about cold cases being solved by DNA, which has led to a lot of questions and concerns about online genealogy companies that collect DNA profiles. It’s not hard to see why some are less than sympathetic to the privacy arguments when hearing of a case like this, in which a kidnapped child finds her identity.

[L3]: Marijuana may be gaining ground as a legal substance, but you probably shouldn’t send it through the mail- especially to a federal judge,which is a bad idea for many, many reasons. Our dumb criminal of the week probably realizes that, now.

[L4]: When the “sexy singles in your area want to talk to you”, they’re probably not human. In California, they’ll have to tell you so as of July 1, 2019, when a new law takes effect which says that bots must disclose themselves.

[L5]: Judges behaving badly: Courthouse, or junior high school? You be… the judge.

[L6]: Some people may think of Walmart cashiers as lazy, but the truth is they spend a lot of time on their feet- and Walmart is about to pay out millions for that.

[L7]: How obnoxious does a lawyer have to be to get reported by his own client for treating opposing counsel badly?

[L8]: If love don’t live here anymore, you better hurry to the court house- the tax code changes mean that divorce will be more expensive in 2019.

[L10]: In the “crime watch” category, some nefarious prankster has committed the offense of making statues hilarious.

[L11]: Podcast recommendation: If you are a SCOTUS junky, follow Kimberly Robinson, SCOTUS reporter for Bloomberg, and check out their new podcast, SCOTUS Sneak Peak.

[L12]: Crazy law of the week: Iowa does not tolerate fake butter. But really… is that so crazy?

Until next Wednesday, I leave you with this video of a Washington State judge who got hands-on when two inmates made a break for it out of his courtroom. Foiled by the standard issue orange jail slides…

Judge Chases Prisoners Who Ran From Court Room

*The original version of this post incorrectly listed Brown v. Board of Education instead of Plessy v. Ferguson. Brown, of course, is definitely not a failure of a SCOTUS case. Apologies.


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Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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12 thoughts on “Wednesday Writs for 10/31/2018

  1. Tangential to [L7]

    I have the honor of being member of the selected club of people that have been sued by tbeir own lawyer (*). Well, technically my company was the one sued, but it all happened in front of me, in a meeting I was supposed to chair, and I was the one that got deposed by opposing counsel.

    Happy to share the story. After ten years it’s become one of my life’s most entertaining experiences.

    (*) I wonder if Trump also has the privilege of being one of us few, us happy few. I hope not it’s bad enough that i share a country with him. I won’t join Mar-a-Lago, and, in exchange, I don’t want him in my clubs.

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  2. L1: There are no good defenses of Lochner. No defender of Lochner ever wants to acknowledge asymmetric bargaining power in contracts of adhesion however. Libertarians always seem to think private power exists on equal planes. This is bullshit.

    L7: The lawyer’s response is bad but I think scheduling a deposition without working with opposing counsel is bad form. I’ve had opposing counsel send me deposition notices without working to find mutually exclusive dates. This sucks when you have a conflict without cover. Also can we talk about defense counsel who propound 100 interrogatories when 35 or so would do and also add form interrogatories which are hard to follow because they are meant for car crash cases and largely duplicative. Discovery abuse is very real.*

    *California civ pro officially only allows 35 interrogatories but you can add a cookie cutter declaration about why you need more. I never ask for a protective order because it feels like losing proposition and in CA a failed protective order is mandatory sanctions. Form interrogatories were designed for car crash cases but tend to just get used.

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  3. Lochner v. New York has long been considered one of the great SCOTUS failures, alongside Dred Scott and Brown v. Board of Education.

    Did you mean to write this or were you thinking of Plessy v. Ferguson?

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