Questions for Discussion

1. Were you surprised by the provisions in State constitutions regarding conditions of employment? What does the Utah constitution say today – has it been amended since 1898? What do you think the implications of these kinds of provisions are in the current legal environment?

2. What do you think explains the different approaches to similar problems in Holden and Lochner? Were you persuaded by the way that the Lochner majority distinguished the Holden decision? Pay attention to Justice Peckham’s role in this line of cases.

3. In his dissent in Lochner, Justice Harlan writes, “Suppose the statute prohibited labor in bakery and confectionery establishments in excess of eighteen hours each day. No one, I take it, could dispute the power of the state to enact such a statute.” Do you think the majority would dispute this statement? Leaving aside the constitutional issues you have discussed in Constitutional Law, is it the level of risk that is the key question in Lochner?

Think about this as we move into the next section in this course.

4. Why do you think that the majority in Lochner simply ignored the information about the levels of risk that is presented in the dissent? What are the possible legal, social, economic, and political reasons this would have occurred?

5. Martinez-Cuevas takes us from the early 20th century to 2020. As you saw, the Washington (State) Constitution protects employees working in mines, factories and other employments dangerous to life or deleterious to health. Do you think this analysis could have been applied to the bakers in Lochner if the case had come up under the WA state constitution? How do we determine what the dangerous occupations are? Are we again puzzling over what level of risk justifies intervention or protection?

6. Later in the course, when you have learned more about OSHA, think about the question of hours of work as a possible health and safety intervention. In what situations would regulation of hours be appropriate under OSHA?