Topics in the News
Breaking Trusts and Monopolies
Search for Effective Public Policy.
In 1890, when the United States was poised to take action against the ever-increasing numbers of business trusts and the abusive business practices that often characterized large concentrations of capital, the nation was faced with the task of choosing between two quite different approaches to the problem. Americans could either accept the continuing formation of trusts as a natural outgrowth of modern industry and technological advance and take action solely for the purpose of regulating their activities, or they could pursue a policy calling for the dissolution of all monopolies in the interest of restoring and preserving a competitive market system. With the passage in 1890 of the Sherman Antitrust Act, which prohibited combinations and conspiracies in restraint of trade and outlawed monopolies, the nation appeared to have chosen the latter of the two alternatives.
The government, however, was not initially motivated to enforce the antitrust law. Defenders of the trusts pointed out that such combinations actually benefited the nation. Trusts had been successful in eliminating waste and consolidating operations. They had even contributed to the nation's economy through the introduction of some semblance of order and stability. But there was another side to these formidable...
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When the United States was a nation of farms, shops, and small mills, the use of children to supplement a family's income was so common that it attracted little notice and even less concern. The nation's rapid and dramatic transformation into an industrialized society, however, changed the environment in which children labored and the conditions to which they were exposed. At the same time, changes were taking place in the way the childhood years were perceived. More and more Americans began to regard children as a national resource that deserved society's protection and guidance. Reformers such as Jacob Riis, author of The Children of the Tenements (1903), and George Creel, who with the assistance of Denver's juvenile court judge, Ben Lindsey, wrote Children In Bondage (1913), helped broaden awareness of the conditions under which many of the nation's poor children were reared. Exhibitions of photographs of children employed in all sorts of economic pursuits, including those considered among the most dangerous and grueling, proved equally successful in pricking the public's conscience. In sharp contrast to these images of child workers worn down by the toil of their labor were the children of the middle class, who led quite different lives and whose progress was measured not in industrial output, but in ways increasingly seen as being vital to their...
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Espionage and Sedition Acts
Fears for Internal Security.
America's involvement in World War I provoked serious and widespread abuses of civil liberties. While most Americans responded to the call for mobilization with intense patriotic sentiment, there were those who, for a variety of reasons, remained opposed to intervention in the war, and a few, including many pacifists, who resisted the call to arms altogether. In 1917 Congress, under pressure to take some action to protect the nation's security against those who might provide aid to its foreign enemies, passed the much-debated Espionage Act. This act provided the government with extraordinary powers over the rights of free speech and press. Immediately after the nation's declaration of war, the country was filled with rumors regarding the activities of spies and their sympathizers; there were also numerous stories concerning sabotage and plots to render America's industrial might useless. These concerns, however, were not strong enough to dampen fears that the Espionage Act as originally proposed would serve to repress free speech and the right of individuals to debate issues of public concern. The reaction of the nation's press, reinforced by petitions containing some 1.5 million signatures, was so critical of the proposed bill that both houses of Congress were forced to compromise on what became the final version in which it passed.
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Eugenics and the Law
Theory of Eugenics.
In 1883 the English scientist Francis Galton, a cousin of Charles Darwin, coined the word eugenics to describe the science that concerned itself with those qualities that contributed to the improvement of the human race. Eugenists, as they were to call themselves, firmly believed, for example, that intelligence was an inherited trait that was relatively independent of any environmental consideration or influence. Eugenists portrayed themselves as being sincerely concerned about the future of the human race and maintained that efforts to ensure that the human race achieved its full potential could be successful only under the following condition: that those who bore the qualities most admired or valued among human beings were encouraged to reproduce those strengths in their progeny. It was, in essence, a theory based upon selective breeding, and it was given some urgency by the eugenists' fears of the reproductive capabilities of those whom they regarded as less qualified to contribute to the advancement of the "race," such as habitual criminals, hopeless paupers, and the "feeble-minded."
The social and moral implications of the eugenists' theories were not as disturbing to many Americans as they later became. This decade was a time in which many people were obsessed with the new field of...
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Experiment of the Commerce Court
Court of Special Jurisdiction.
An early experiment with the concept of a court of special jurisdiction involved the Interstate Commerce Commission (ICC). The ICC had won considerable public support through its efforts to exercise fair but firm control over the railroads, whose activities and political influence had generated much controversy, particularly in the midwestern states. Accordingly, interest in extending the ICC's regulatory powers beyond the narrow field to which they had originally been confined was growing. Moreover, the commission had increasingly benefited from a series of Supreme Court decisions that reinforced its rule-making role and jurisdiction. Some Americans, particularly among the more conservative elements of the Republican Party, were concerned that no process of review had been created to consider the appropriateness of ICC decisions. Sensitive to the interests of the business community, but also desiring to strike a balance between these and the demands of the reformers who championed the commission as a bulwark against the special interests, President William Howard Taft favored the idea of establishing a special court, answerable only to the Supreme Court, that would have the responsibility for reviewing and evaluating the ICC's rulings. The country's experience with national administrative agencies was still somewhat new, and the establishment of a special...
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The Fellow-Servant Rule and Workmen's Compensation
Between 1910 and 1919 the method of compensating employees who suffered injuries during their employment was fundamentally altered. In many respects this transformation was triggered by changes both in the nation's workplaces and in the relationship between labor and management. In times past, when a worker was hired to perform some service for the person hiring him, the arrangement was considered a simple contract. The employer assumed no responsibility for the safety of his employee other than what would be expected of anyone else: that he not deliberately do anything to the employee that would cause harm. Every worker was expected to be held responsible for his own mistakes or negligence, and common law absolved the employer from any responsibility for an injury to one employee caused by the carelessness of another. That, in essence, was the "fellow-servant" rule. But by the beginning of the twentieth century the growth of a complex industrial system had introduced processes of manufacturing, technologies, and scales of operation that far exceeded anything those who first conceived of this rule had ever contemplated. The consequences of such a rule, clearly foreseeable by 1900, were, from the vantage point of a growing industrial society, both costly and entirely unsatisfactory. It was estimated that in the first years of the new century, thirty-five thousand deaths...
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Lawyers and the Legal Profession
Two trends characterized the American legal profession in the first decades of the new century. The first involved the increasingly widespread adoption of standards to control admission to the profession, and the second concerned the lawyer's relationship with his clients. Many lawyers, like those in other fields of specialty, had grown seriously concerned with the status accorded their profession, both within their communities and before the courts in which they practiced, Their desire for greater recognition and enhanced stature led to efforts to improve and institutionalize the process of legal training, to remove it from the back offices and libraries in which the clerk traditionally labored to classrooms where the program of instruction could be formalized and the qualifications of instructors assured. Restricting access to the profession also became a popular method of raising the level of public esteem for the profession. The establishment of local, and even, in some instances, state associations, charged with ensuring that certain minimum standards would be maintained among candidates for admission to the bar, constituted a major advancement toward this goal. Efforts such as these reinforced the public's (and the lawyers') perception of the bar as a select group of educated, even scholarly, individuals, whose superior skills and easy access to the courts placed them among...
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The Mann Act
Problem of International Concern.
The passage in 1910 of the White Slave Traffic Act, better known as the Mann Act, was a product of the sensationalistic stories and lurid details regularly appearing in the nation's newspapers, stories about the abduction of innocent women for the purpose of prostitution. While many reformers had long been engaged in a war against prostitution in their own communities, their efforts had been spurred by the much-publicized success of their counterparts in England, who were reportedly prevailing against the exploitation of women for profit. The release in 1909 of the Immigration Commission's studies of the problems posed by the importation of foreign women to staff the hundreds of brothels scattered throughout the nation's large cities fired the opponents of vice with renewed purpose and energy. Aside from the repulsion and exasperation Americans felt in confronting the evidence of the immorality plaguing their communities was the suspicion—reflecting the prejudices harbored at the time—that the root of the problem was to be found in alien lands, in the hands of the international trafficker who, given the restrictions imposed by considerations of jurisdiction and limited local resources, could act with impunity. In this way the concerns of many reformers directly connected to the issue of immigration control.
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Prohibition and the Eighteenth Amendment
Interest in National Legislation.
Despite the fact that some form of Prohibition had been enacted into law in thirty-one states by 1913, interest in the enactment of national Prohibition legislation remained strong. The abuse of alcohol was an issue of great importance in many communities, and it especially galvanized the reformers who were interested in the rehabilitation of criminals and delinquents, the elimination of slums, the alleviation of poverty, and Christian temperance. Many Americans considered alcoholism a serious problem, yet many others were inclined to ignore its personal and social costs. Advocates of reform initially focused on convincing individual communities and states to formulate regulatory policies to advance Prohibition, but these efforts proved to be of limited and often temporary value. For the reformers, the answer was to be found not only in the application of highly restrictive laws that acknowledged the danger consumption posed to the public's social and moral health; reformers decided that they must also work for a more uniform enforcement of the laws against the sale and manufacture of alcoholic beverages.
In the nineteenth century the courts generally granted wide latitude to the states to control or forbid the manufacture and sale of liquor. In 1890 the Supreme Court, however,...
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Brandeis, Louis D. 1856-1941
CONSUMER ADVOCATE; ASSOCIATE JUSTICE OF
THE SUPREME COURT
Acting in the Public's Best Interest.
It seems unlikely that a man who devoted so much of his early career to becoming a successful corporate lawyer would, at the pinnacle of his success, suddenly choose to involve himself in the most controversial issues of his day. Yet that was exactly what Louis D. Brandeis, a man who had become a millionaire before the age of fifty, did, and his decision to pursue a life of service to his fellow countrymen set him on a course that would prove as problematic for him as it was rewarding. In 1916 Brandeis became an associate justice of the U.S. Supreme Court and served with distinction until his retirement in 1939. His significance as a historic figure during the 1910s, however, has less to do with his appointment to the Court than with his accomplishments as a dedicated and brilliant advocate on behalf of the public interest. He was a man devoted to the highest principles of service...
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Davis, John William 1873-1955
SOLICITOR GENERAL OF THE UNITED STATES
Lawyer to Congressman.
In 1911 John Davis was elected to represent his West Virginia district in the House of Representatives. A man of great ambition and a lawyer of distinction in his home state, the decision to pursue a political career had not been an easy one for him. He had dedicated himself to the operation of the law office he shared with his father and had become the principal reason for its success. He did become a candidate, however, and won a seat in Congress on his first attempt. As a Democrat he faithfully supported President Wilson's legislative program in spite of the reservations he held with respect to the president's leadership and his liberal ideals. Though highly regarded by his colleagues in the house for his legal acumen, Davis received little recognition for his work outside the Congress until the impeachment trial of Judge Robert W. Archbald brought his advocacy skills well into public view. Davis was selected to deliver the prosecution's summation of the case and delivered an argument that was so forceful and persuasive as to attract the personal attention of the president. On 30 August 1913 Davis, nearing the end of his term and tiring of his legislative role, was offered and eagerly accepted an appointment to the post of solicitor general of the United States.
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Holmes, Oliver Wendell, Jr. 1841-1935
ASSOCIATE JUSTICE OF THE SUPREME COURT
A New Age Arrives.
The evolution of the Supreme Court as an institution has historically occurred in a series of stages, each of which tends to overlap the next, thus blurring the boundaries between them, and sometimes obscuring the significance of events occurring during these transitional periods. More often than not, these stages serve as a framework within which the forces that have influenced the Court's decisions are to be understood. Occasionally, but rarely, the transition from one era to another has been symbolized by the presence on the Court of a justice whose stature, ability, and performance make him the embodiment of the new age. Oliver Wendell Holmes Jr. was that kind of a justice. Despite his strengths, however, he was never able entirely to escape the Darwinian and Spencerian influences of his formative years as a lawyer. Like the judges he often criticized, Holmes possessed preconceptions of his own, notions and biases reflecting the...
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Norris, George William 1861-1944
The Fighting Liberal.
During the thirty years that George Norris served in the U.S. Senate, his name became closely associated with a wide range of issues and causes relating to the public development of natural resources, the rights of labor, farm relief, and, to a lesser extent, foreign policy. Lesser known or remembered, however, is the most significant of his many achievements, a contribution he made to this country's history three years before he entered the Senate. In 1910 Norris brought about the most significant procedural changes the House of Representatives, of which he was then a member, had ever experienced; he thus opened the way for the passage of a legislative program with which the Progressive Era became so uniquely identified. A skilled parliamentarian and legislator who valued his independence above almost everything else, Norris rightfully earned his reputation as a champion of the progressive cause and as a determined foe of those whom he suspected of exploiting the nation's natural resources for their private advantage. To his...
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Wickersham, George W. 1858-1936
U. S. ATTORNEY GENERAL
When President William Howard Taft appointed George W. Wickersham attorney general in 1909, many were left wondering about the wisdom of the president's choice. As a partner in one of the more established corporate law firms in New York City and a recognized expert on corporate law, Wickersham could not, it was widely felt, be trusted to pursue vigorously the antitrust campaign initiated by the president's predecessor, Theodore Roosevelt. Yet in the four years he served as the nation's attorney general, Wickersham more than doubled the number of antitrust actions brought by his department and was instrumental in settling several major pending cases, two of which resulted in the dissolution of the nation's largest monopolies, Standard Oil and the American Tobacco Company. Wickersham's knowledge of corporate practices and the conditions of the economic marketplace made him invaluable as a leader of the administration's antitrust crusade and obtained for him a place in the President Taft's inner circle of advisers, as well as the confidence of succeeding Republican presidents. For the duration of his distinguished service, he would be regarded as the country's foremost trustbuster.
In March 1909 Wickersham was appointed to the post of the U.S. attorney general by...
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People in the News
On 11 July 1912 Robert W. Archbald, a circuit judge assigned to the U.S. Commerce Court, was impeached for using his position to advance personal business interests. The sixty-three-year-old judge was accused of making, often under a fictitious name, contracts at advantageous prices for the purchase of coal deposits owned by railroad companies that were litigants before the Commerce Court. The House Judiciary Committee had originally determined that Archbald had developed an improper degree of intimacy with railroad officials and had accepted financial favors from them. The Senate agreed, at least with respect to his conduct as a Commerce Court circuit judge, and removed him from office.
In 1918 Victor Berger, a former mayor of Milwaukee, founder of the Socialist Party, and, as an editor of the Milwaukee Leader, an opponent of America's involvement in the war in Europe, was indicted for conspiring to violate the Espionage Act. Reelected to Congress shortly before his trial and subsequent conviction, Berger was refused permission by Congress to take his seat, either then or after he was reelected in a special election. In 1921 the Supreme Court reversed Berger's conviction because of the judge's prejudicial conduct during the trial.
After the outbreak of war in 1917, no other member of the president's cabinet caused as much controversy as Postmaster...
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Augustus O. Bacon, 74, chairman of the Senate's Foreign Relations Committee. A onetime member of the Confederate army, a lawyer, and the first senator to be elected under the changes brought about by the adoption of the Seventeenth Amendment, Bacon was an outspoken opponent of intervention in Mexico and a major influence in the formulation of the nation's foreign policy, 14 February 1914.
Lloyd Bowers, 50, former solicitor general under President Taft who achieved enormous success in the cases he handled before the Supreme Court, including those that resulted in the dissolution of the Standard Oil and American Tobacco trusts, 9 September 1910.
David J. Brewer, 72, associate justice of the U.S. Supreme Court between 1890 and 1910, a position to which he had been appointed by President Benjamin Harrison after six years of service as a judge on the Eighth Circuit Court of Appeals, 28 March 1910.
Henry B. Brown, 77, associate justice of the U.S. Supreme Court from 1891 through 1906, 4 September 1913.
Joseph H. Choate, 94, one of the most highly regarded trial lawyers of his time, ambassador to Great Britain between 1899 and 1905, and delegate, in 1907, to the Second Peace Congress at The Hague, 14 May 1917.
Jonathan P. Dolliver, 52, Republican senator from...
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Benjamin N. Cardozo, The Growth of the Law (New Haven: Yale University Press, 1924);
Josephus Daniels, The Wilson Era: Years of Peace, 1910-1917 (Chapel Hill: University of North Carolina Press, 1946);
Felix Frankfurter and J. M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System (New York: Macmillan, 1927);
Max Lerner, The Mind and Faith of Justice Holmes (Boston: Little, Brown, 1943);
George W. Norris, Fighting Liberal: The Autobiography of George W, Morris (New York: Macmillan, 1945).
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Important Events in Law and Justice, 1910–1919
- On January 3, Supreme Court Justice Horace H. Lurton is sworn in.
- On March 28, David J. Brewer, associate justice of the Supreme Court, dies.
- On May 1, the National Association for the Advancement of Colored People (NAACP) is founded. Six months later it begins to publish the journal, The Crisis, under the editorship of W.E.B. Du Bois.
- On May 2, Charles Evans Hughes, former governor of New York, is nominated to the U.S. Supreme Court. He serves on the High Court until 1916 when he is chosen to be the Republican Party's presidential candidate.
- On October 1, an explosion destroys a portion of the Los Angeles Times building, killing twenty-one people. The publisher of the newspaper blames labor radicals who have been attempting to unionize the newspaper's employees. Union organizers James and John McNamara are arrested and charged with the crime.
- On October 10, Charles E. Hughes is sworn in as an associate justice of the Supreme Court.
- On November 20, William H. Moody, associate justice of the Supreme Court, retires.
- On December 10, Edward D. White, a member of the Confederate army during the Civil War, former senator from Louisiana, and a Supreme Court associate justice, is nominated by President William Howard Taft...
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