Legal Commentary

Lochner v. New York as a Test Case

By David Bernstein

Many of the most important cases in American constitutional law have not involved true cases or controversies. Instead, they involved individuals or organizations who intentionally set up a test case to challenge a law they disliked. Prominent examples include Plessy v. Ferguson and Griswold v. Connecticut.

I think we can add Lochner v. New York to that list. Joseph Lochner was accused in early 1902 of allowing baker Aman (sometimes referred to in newspaper reports as Amand or Armand) Schmitter to work more than ten hours in one day in Lochner?s bakery. Various sources, including one as early as 1905, state that Schmitter stayed late voluntarily to learn cake-making, but I?ve been unable to discover the source of this detail.

It?s obvious that Lochner eventually became a test case. Lochner presented no evidence to challenge the prosecution, and instead allowed himself to be convicted so he could appeal. And it?s no secret at this point that Lochner?s attorneys were paid by the New York Master Bakers Association, which had resolved to challenged the hours law.

But did the case start out as a test case, or just develop into one? Contrary to what I have previously written, when I surmised that the complaint against Lochner was initiated at the behest of the bakers? union, the evidence suggests the former.

In particular, it turns out that Schmitter himself swore out an affidavit against Lochner, and it?s highly unlikely that Schmitter was an agent of the bakers? union. I?ve discovered a newspaper report from 1895 stating that the union tried to fine Lochner because he allowed Schmitter to live in his home, contrary to union rules that Lochner had agreed to obey. Schmitter begged the union to drop the complaint, explaining that he had nowhere else to live.

I?ve discovered another newspaper report from 1898, stating that Lochner and Schmitter, who now owned his own bakery, traveled together to New York City. Finally, Schmitter?s 1941 obituary noted his long employment in Lochner?s bakery.

So here we have an individual who lived in Lochner?s home, who resented the union for interfering in his relationship with Lochner, who was friendly enough with Lochner to travel with him, who was a former bakery owner himself, and whose family was proud enough of his service as a Lochner employee to have it mentioned in his obituary. This doesn?t sound like a person who would have tried to get Lochner criminally prosecuted under a union-sponsored law, especially not for teaching him cake-making after hours!

Add that to the fact that Lochner was active in both the Utica Master Bakers Association, and the state association, and the evidence strongly suggests that Lochner and Schmitter had cooked up the latter?s complaint as a mechanism to challenge the hours law.

Full post as published by The Volokh Conspiracy on March 17, 2010 (boomark / email).