Gale Encyclopedia Of American Law 3Rd Edition Volume 6 P41 pptx

LOAD LINES A marking indicating the extent to which the weight of a load may safely submerge a ship; also called Plimsoll line. The load line, or Plimsoll mark, is posi- tioned amidships on both sides of a vessel. Its purpose is to indicate the legal limit to which a ship may be loaded for specific ocean areas and seasons of the year. The basic Load Line Certificate is issued after a complex calculation is made to determine exactly where the Plimsoll mark should be positioned. These certificates take several forms, such as international voyage, coastwise traffic, and Great Lakes operations. By calculating the load line, the agency issuing a certificate has determined, among other aspects of seaworthiness, that a vessel has enough volume of ship (reserve buoyancy) above the waterline so that it will not be in danger of foundering or plunging when under way in heavy seas. In the United States the U.S. Coast Guard issues load line regulations; routine assignment of load lines is handled by the American Bureau of Shipping. A series of multilateral treaties has been executed to impose on signatories the responsi- bility of seeing that ships flying under their flag have safe load lines des ignated and that they are observed. The principal TREATY is the Interna- tional Convention on Load Lines 1966. The use of load lines on vessels sailing under the flag of the United States is mandated by federal law (46 U.S.C.A. 86 [1973]). The treaties typically do not apply to ships of war, small ships, pleasure boats, and FISHING VESSELS. LOAN COMMITMENT Commitment to a borrower by a lending institu- tion that it will loan a specific amount at a certain rate on a particular piece of real estate. Such commitment is usually limited to a specified time period (e.g., four months), which is commonly based on the estimated time that it will take the borrower to construct or purchase the home contemplated by the loan. LOAN SHARK A person who lends money in exchange for its repayment at an interest rate that exceeds the percentage approved by law and who uses intimi- dating methods or threats of force in order to obtain repayment. In most jurisdictions USURY laws regulate the charging of interest rates. Loan sharking violates these laws, and in many states it is punishable as a criminal offense. The usual penalty imposed is a fine, imprisonment or both. LOBBYING The process of influencing public and government policy at all levels: federal, state, and local. Lobbying involves the advocacy of an interest that is affected, actually or potentially, by the decisions of government leaders. Indivi- duals and interest groups alike can lobby governments, and governments can even lobby each other. The practice of lobbying is consid- ered so essential to the proper functioning of the U.S. government that it is specifically protected by the FIRST AMENDMENT to the U.S. Constitution: “Congress shall make no law … abridging … the right of the people peaceably … to petition the Government for a redress of grievances.” The practice of lobbying provides a forum for the resolution of conflicts among often diverse and competing points of view; provides information, analysis, and opinion to legislators and government leaders to allow for informed Load lines indicate the legal limit to which a ship may be loaded for specific ocean areas and seasons of the year. In the United States, the U.S. Coast Guard issues theseregulations. ª JOEL W. ROGERS/ CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 388 LOAD LINES and balanced decision making; and creates a system of checks and balances that allows for competition among interest groups, keeping any one group from attaining a permanent position of power. Lobbyists can help the legislative process work more effectively by providing lawmakers with reliable data and accurate assessments of a bill’s effect. The ro le lobbyists play in the legislative arena can be compared to that of lawyers in the judicial arena. Just as lawyers provide the trier of fact (judge or jury) with points of view on the LEGAL issues pertaining to a case, so do lobbyists provide local, state, and federal policymakers with points of view on PUBLIC POLICY issues. Although lobbying as a whole serves as a checks-and-balances safeguard on the legislative process, individual lobbyists are not necessarily equal. Unlike voters, who each get one vote, lobbyists vary in their degree of influence. The level of influence a lobbyist has over the legislative process is often proportional to the resources— time and money—the lobbyist can spend to achieve its legislative goal. Some people think lobbyists in general have too much power. During h is 1912 campaign for president, WOODROW WILSON remarked, “The government of the United States is a foster child of the special interests. It is not allowed to have a will of its own.” The term lobbyist has been traced to the mid-seventeenth century, when citizens would gather in a large lobby near the English House of Commons to express their views to members of Parliament. By the early nineteenth century, the term lobby-agent had come to the United States, where it was applied to citizens seeking legislative favors in the New York Capitol lobby, in Albany. By 1832 it had been shortened to lobbyist and was widely used at the U.S. Capitol. In the early twenty-first century, lobbyists practice their trade not only in the halls of the U.S. Capitol and the corridors of state legis- latures, but also on playgrounds, in board- rooms, in manufacturing plants, at cocktail parties, and in retirement homes. Contemporary lobbying methods include political action com- mittees, high-tech communication techniques, and coalitions among groups and industries sharing the same political goals, and campaigns to mobilize constituents at the grassroots level. Lobbyists include schoolchildren who want to prevent their favorite neighborhood park from becoming a shopping mall, corporations who contribute to a particular legislator’s campaign, lawyers who speak with legislators on behalf of their clients’ business interests, cities who lobby the state legislature for changes in transportation laws, presidential aides who suggest new AMEND- MENT language to congressional committee members, retired persons who want to save their government benefits, and many others. Each type of lobbyist attempts to win support for a particular point of view. Samuel Ward, a well-respected lobbyist, was so successful at influencing legi slators that, in the mid-1800s, Congress decided to investi gate him. When questioned about the elegant dinners he orchestrated for politicians, the self-described King of the Lobby said, “At good dinners peop le do not talk shop , but they give people a right, perhaps, to ask a gentleman a civil question and get a civil answer.” Despite the noncorrupt success of lobbyists such as Ward, lobbyists during the mid- nineteenth century were often regarded as ethically questionable individuals. This reputa- tion was enhanced whenever lobbyists abused their position with improper practices such as bribing members of Congress. Although lobbying is specifically protected by the Constitution, numerous attempts have been made to regulate it—attempts that, not surprisingly, lobbyists have historically resisted. Congress began efforts to reform lobbying in 1907, when it banned campaign contributions from banks and corporations. In 1911 proposed restrictions on domestic lobbying were first considered, but these were not approved until 1946, when Congress passed the Federal Regulation of Lobbying Act (2 U.S.C.A. §§ 261, 261 note, 262–270 [1946]). In 1954 lobbyists challenged the Regulation of Lobbying Act for being unconstitutionally vague and unclear. In United States v. Harriss, 347 U.S. 612, 74 S. Ct. 808, 98 L. Ed. 989, the Supreme Court responded by upholding the act’s co nstitutionality but also by narrowing the scope and application of the act. The Court ruled that the act applies only to paid lobbyists who directly communicate with members of Congress on pending or proposed federal legisla- tion. This means that lobbyists who visit with congressional staff members rather than mem- bers of Congress themselves are not considered lobbyists. In addition, the act covers only attempts to influence the passage or defeat of GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LOBBYING 389 legislation in Congress and excludes other congressional activities. Further, the act applies to and restricts only individuals who spend at least half of their time lobbying. According to the 1946 act, lobbyists to whom the law applies are required to disclose their name and address; the names and addresses of clients for whom they work; how much they are paid and by whom; the names of all contributors to the lobby ing effort and the amount of their contributions; accounts that tally all money received and expended, specify- ing to whom it was paid and for what purposes; the names of all publications in which the lobbyists have caused articles or editorials to be published; and the particular legislation they have been hired to support or oppose. In addition, the act requires lobbyists to file registration forms with the clerk of the Hous e of Representatives and the secretary of the Senate prior to engaging in lobbying. These forms must be updated in the first ten days of each calendar quarter for as long as the lobbying activity continues. Violation of the act is a MISDEMEANOR punishable by a fine of up to $5,000 or a jail sentence of up to 12 months, and a thre e-year prohibition on lobbying. Although a number of lobbying statutes have been enacted that regulate special situations— such as lobbying by the agents of foreign governments, emplo yees of holding companies, and firms affected by various federal shipping Should Lobbyists Be Strictly Regulated? B etween the 1940s and the early 2000s, there was a continuing debate in the United States over the proper role of lobbyists in a democratic society. Lobbyists contend they offer a valuable service to legislators and gov- ernment officials, providing information and raising questions about pending legislation or executive action. Critics argue that many lobbyists are nothing more than influence peddlers who seek political and legislative favors for their clients. The perception that lobbyists and the interest groups they represent have cor- rupted the political process has led to state and federal legislation that regulates lobbyists. Nevertheless, a fundamental conflict remains over the extent to which government may regulate lobbyists and lobbying activities. Those opposed to restrictions on lobbying argue that the FIRST AMENDMENT guarantees the right of citizens to petition the government for redress of grievances. Placing restrictions on lobbyists impairs this right. On the other side, critics of lobbyists assert that regulations are needed to preserve the democratic process and to ensure the legitimacy of government. Many people have become cynical about politicians and government, perceiving that only lobby- ists have access to the halls of power. Lobbyists believe that their activities are protected by the First AMENDMENT. Though the U.S. Supreme Court has never stated that there is a constitutional right to petition the government, sup- porters of lobbying note that several state supreme courts have acknowledged a FUNDAMENTAL RIGHT to do so. Therefore, any regulations on lobbying must be the least restrictive means to further a compelling STATE INTEREST. Lobbyists assert that regulations re- quiring them to name specific contacts made with legislative or congressional staff have a chilling effect and weaken relationships that have been built up over many years. Staff members are often under time pressure to find information on legislative issues and depend on lobbyists to help them meet these demands. Disclosure of contacts with lobbyists forces staff members to refrain from making legitimate requests, out of fear that disclosure will produce political embarrassment. Lobbyists argue they have been given an unflattering and absurd stereotype as influence peddlers. With more than 14,000 lobbyists in Washington, D.C., representing a wide range of interest groups, including environmental and consumer organiza- tions, it is clear that there is a demand for lobbying. The size and complexity of the federal government have, in large part, driven the n eed f or lo bbyists to help define positions on issues of PUBLIC POLICY.More- over, on all issues of widespread concern, lobbyists are found on both sides, produc- ing one more set of checks and balances that undercuts the simplistic picture of corruption and favoritism. Lobbyists and their supporters main- tain that intrusive regulations on lobby- ing can impair the democratic process. Laws that seek to identify contributors to lobbying groups may have a chilling effect on the exercise of citizens’ rights. If made public, a contribution to an unpopular lobby can discourage similar contributions by others. Because many unpopular lobbies are small and poorly GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 390 LOBBYING laws—the Federal Regulation of Lobbying Act remains the only comprehensive law governing the practice of lobbying. Critics of the 1946 act suggest that its effectiveness is limited, since it does not apply to a large part of the population that actually lobbies the government. In fact, in 1991 the GENERAL ACCOUNTING OFFICE (now the Government Accountability Office, or GAO) found that nearly 10,000 of the 13,500 individuals and organiza- tions listed in a popular lobbyist directory were not registered under the 1946 act. In 1995 Congress passed a law designed to close loopholes in the 1946 law by increasing lobbyists’ accountability: the Lobbying Disclo- sure Act of 1995 (Pub. L. No. 104-65, 109 Stat. 691). Under the new law, individuals who receive at least $5,000 in a six-month period from a single client are required to register with the clerk of the House and the secretary of the Senate, listing the congressional chambers and federal agencies they contacted, the issues they lobbied for, and how much money was spent on the effort. The reporting requirements also apply to organizations w hose own employees lobby on their behalf and spend at least $20,000 in a six-month period on that effort. In September 2007 President GEORGE W. BUSH signed the Honest Leadership and Open Government Act (HLOGA) into law, amending the 1995 act and placing tighter restrictions on lobbying contacts and activities. The 2007 act funded, discouraging even a few donors may significantly affect the support for a wide variety of viewpoints. Supporters of strict regulation of lobbyists dispute these arguments. They contend that regulation is needed to prevent special interests from controlling the political process, to ensure ethical behavior on the part of lawmakers and government officials, and to enhance the public’s confidence in the government. Numerous scandals have been linked to lobbying at the federal and state levels, providing ample justification for such regulation. Lobbyists have a place in the legislative process, concede many critics, but they must be prevented from using money and favors improperly to influ- ence legislators and their staffs. Critics of lobbying note that the courts have generally supported reason- able regulation of lobbying activity. This type of regulation does not prevent lobbyists from openly and appropriately communicating with government in regard to legislation. The regulation does restrict traditional practices such as giving legislators and staffs tickets to sporting events, paying for meals and entertainment, and underwriting golf and skiing junkets. These practices have contributed to the public perception that gifts and favors buy access to legislators and sometimes even votes. Critics of lobbying also support regu- lation that forces the public disclosure of whom lobbyists represent. Registration of lobbyists is a minimally restrictive means of serving the public interest, yet it gives the public information on which interest groups are involved in pending legislative matters. Critics argue that lobbyists should not be permitted to work their influence in anonymity. The public has a right to know what interest groups have shaped legislation. Despite the reforms legislated in the federal Lobbying Disclosure Act of 1995 (109 Stat. 691, 2 U.S.C.A. § 1601 et seq.), critics of lobbying argued that additional reform was needed. The act addressed disclosure, registration, and a ban on gifts and meals, but it left large loopholes, the largest being the ab ility of lobbyists to make large contributions to the campaign committees of members of Congr ess. The critics pointed out the irony of banning small gifts yet permit- ting senators and representatives to accept $5,0 00 donations for t heir cam- paign committees from politica l act ion committees controlled b y lobbyists. Even more distressing, note critics, was the change this situation has produced in the dynamics between lobbyist and legislator:Itisnowthelegislatorwho calls the lobbyist, asking for a political contribution. Criticism of lobbyists intensified when, in 2001, the Bush administration and the Republican leadership in the House of Representatives gave unprece- dented access to lobbyists. The most infamous lobbyist was Jack Abramoff, a member of the Bush transition team who wined and dined legislators and federal officials and whose illegal actions led to his conviction and imprisonment in 2006. Several Republican Congressmen were convicted of taking bribes from other lobbyists. In response, Congress enacted the Honest Leadership and Open Government Act (HLOGA), amending the 1995 act and placing tighter restric- tions on lobbying contacts and activities. Nevertheless, the power of lobbyists has continued to grow. It was estimated that lobbyists for the healthcare industry were spending $1 million a day in 2009 to influence the course of HEALTH INSURANCE reform. Critics charge that the unceasing quest for campaign cash has distorted the political system. The only way to prevent lobbyists and the special interests they represent from dominating the legislative process is to establish public financing of congressional campaigns. Once campaign contributions are no longer an issue, critics conclude, lobby- ists will lose their last effective means of improperly influencing legislation. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LOBBYING 391 requires quarterly reporting of lobbying activity and expenses and mandates that individuals who spend 20 percent or more of their time on lobbying activities register as a lobbyist. It also modifies the existing federal gift allowances, making the gift giver, not just the recipient, subject to sanctions for violating the applicable rules. In addition, the 2007 act increases civil and criminal penalties fo r knowing violations of the rules. In 2009, on his first day in office, President BARACK OBAMA co ntinued the effort to place tighter restrictions on lobbyists. President Obama created new lobbying rules that placed restrictions on his staff’s ability to lobby the White House after leaving employment and prevented aides from working on matters they had lobbied on prior to coming to the White House. The new rules also prevent aides from approaching agencies that were the target of their prior lobbying efforts, and prohibit lobbyists from giving gifts to any member of the Obama administration. In addition to the federal regulations, states may separately enact their own regulations governing state lobbying. Most lobbying restric- tions involve reporting and registration provi- sions similar to those in place at the federal level. FURTHER READINGS Browne, Steven A. 1995. “The Constitutionality of Lobby Reform.” William and Mary Bill of Rights Journal 4. Dekieffer, Donald. E. Revised, Updated Edition, 2007. How to Lobby Congress: A Guide for the Citizen Lobbyist. Chicago: Chicago Review Press. Doherty, Carroll J., and the “Inside Congress” Congressional Quarterly Staff. 1996. Congressional Quarterly Weekly Report 54 (January 20). Jacobs, Jerald A., ed. 1989. Federal Lobbying. Washington, D.C.: Bureau of National Affairs. Kaiser, Robert G. 2009. So Damn Much Money: The Triumph of Lobbying and the Corrosion of American Government. New York: Knopf. Lane, Edgar. 1964. Lobbying and the Law. Berkeley: Univ. of California Press. “Legislative reform.” 2003. San Diego Law Review 40 (winter): 67–114. Luneburg, William V. 2006. The Lobbying Manual: A Complete Guide to Federal Law for Lawyers and Lobbyists. 3d ed. Chicago: Section of Administrative Law and Regulatory Practice, American Bar Association. Mack, Charles S. 1989. Lobbying and Government Relations: A Guide for Executives. New York: Quorum Books. Maskell, Jack. 2009. Lobbyist Registration and Compliance Handbook. Washington, D.C.: TheCapital.Net., Inc. Stokeld, Fred. 2000. “IRS Explains Rules on Lobbying by Public Charities.” Tax Notes 88 (July 10): 168–9. Tollison, Robert, and Richard Wagner. 1988. Smoking and the State: Social Costs, Renting, and Public Policy. Lexington, Mass.: Lexington Books. Zetter, Lionel. 2008. Lobbying: The Art of Political Persuasion. Petersfield, Hampshire: Harriman House. West. 2008-2009. Special Study for Corporate Counsel on Corporate Lobbying Activity. Chesterland, Ohio: Busi- ness Laws, Inc. CROSS REFERENCE Election Campaign Financing. LOCAL ACTION A la wsuit concerning a transaction that could not occur except in some particular place. Any type of lawsuit that can be b rought only in one place. A classic example is a situation where recovery of possession of a particular parcel of land is sought. LOCHNER V. NEW YORK In Lochner v. New Yor k, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), the U.S. Supreme Court struck down a state law restricting the hours employees could work in the baking industry, as a violation of the freedom of contract guaranteed by the Due Process Clause of the FOURTEENTH AMENDMENT. This seemingly minor decision spawned a new era in constitu- tional interpretation. CONSTITUTIONAL LAW is often divided into three eras, the center of which is Lochner. In the pre-Lochner era (1789–1870), courts interpreted the Due Process Clause of the FIFTH AME NDMENT to have primarily a procedural content that protected persons against arbitrary governmen- tal deprivations of life, liberty, and property. This procedural right meant that individua ls were entitled to sufficient notice and a FAIR HEARING before the government could take harmful action against them. Courts reviewed only the manner in which a particular law infringed on a substantive right, without evalu- ating the importance of the right or the severity of the INFRINGEMENT. During the Lochner era (1870–1937), courts interpreted the Due Pro cess Clauses of the Fifth and Fourteenth Amendments to have a sub- stantive content that protected from govern- mental intrusion certain economic and property interests, such as the right of employers and employees to determine the terms and condi- tions of their employment relationship. (Though Lochner was decided in 1905 , prior cases going GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 392 LOCAL ACTION back to 1870 contributed to Lochner and are included in the Lochner era.) The post-Lochner era (1937–present) is marked by decreased constitutional protection for economic and property rights and increased recognition of “fundamental” constitutional rights that protect minorities from discrimina- tion, safeguard the interests of criminal defen- dants, and delineate a sphere of private conduct upon which the state may not encroach. The Lochner era was an outgrowth of the U.S. industrial revolution. During the second half of the nineteenth century, the output of manufactured goods tripled, and the value of those goods soared from $3 billion to over $13 billion. The national labor force kept pace during this period, growing from 13 million to 19 million workers. Along with the growth of industry came a large disparity in the wealth and working conditions of U.S. citizens. Although some business proprietors were working fewer hours and making more money, many of their employees were working more hours in un- healthy conditions for scant wages. The bakers of New York were one group of such workers. New York bakers at this time reportedly worked 12 hours per day, seven days per week, in a confined and uncomfortable environment. This lifestyle left little time for rest, causing some bakers to live in their kitchen and sleep at their workbench. A number of bakers died at an early age, and others contracte d debilitating diseases. In 1895 the New York state legislature unanimously passed the Bakeshop Act, which attempted to address these problems by limiti ng the working hours of bakers to ten a day and 60 a week. In 1902 Joseph Lochner, who owned a small bakery in Utica, was fined $50 for permitting an employee to work more than 60 hours in a week. During the trial Lochner offered no defense and was convicted. On APPEAL he challenged the constitutionality of the Bakeshop Act, claiming that it interfered with his right to pursue a lawful trade. The state defended the statute by arg uing that it represented a legitimate exercise of its police powers, pursuan t to which the legislature may enact laws to preserve and promote the health, safety, and morality of society. Lochner’s claim did not lack PRECEDENT.In 1897 the Supreme Court nullified a Louisiana statute that attempted to regulate contracts between state residents and out-of-state insurance companies (Allgeyer v. Louisiana, 165 U.S. 578, 17 S. Ct. 427, 41 L. Ed. 832 [1897]). Holding that that statute impaired the liberty of contract guaranteed by the Due Process Clause of the Fourteenth AMENDMENT, the Court said that the Louisiana resident had a right “to live and work where he will,”“to earn a livelihood by any lawful calling,” and to “enter into all contracts which may be proper, necessary, and essential to … carrying out … the purposes above mentioned.” In addition to this precedent, the general mood of the country also favored Lochner’s claim. Despite the universal support for the Bakeshop Act in the New York Legislature, a large number of U.S. citizens were still commit- ted to the idea that in a capitalistic market, a government that governs least governs best (an idea that reflects laissez-faire economics). In a 5–4 decision, the Supreme Court upheld Lochner’s due process claim, striking down the Bakeshop Act as an interference with the right of employers and employees “to make contracts regarding labor upon such terms as they may think best, or upon which they may agree.” Writing for the majority, Justice RUFUS W. PECKHAM said that despite statistics indicating that the baking industry was not as healthy as some other trades, the common understanding of the Court suggested otherwise. “The trade of abaker,” Peckham wrote, “is not … unhealthy … to such a degree which would authorize the legislature … to cripple the ability of the laborer to support himself and his family.” The Court acknowledged that state govern- ments possess police powers to protect the health and safety of their residents. However, the Court said, a statute must have a direct relation to a material danger that would com- promise the public health or the health of employees before it may restrict the hours of labor in any trade or profession. In this case, the Court concluded, the connection between the Bakeshop Act and the health and WELFARE of New York bakers was too remote. Two dissenting opinions were written in Lochner, one by Justice OLIVER WENDELL HOLMES JR ., and the other by Justice JOHN M. HARLAN. Both dissents attacked the majority opinion as judicial activism and extolled the virtues of judicial self-restraint. Harlan conceded that the Due Process Clause contains a substantive content that protects the liberty of contract. But this liberty, Harlan GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LOCHNER V. NEW YORK 393 emphasized, may be circumscribed by state regulations that are calculated to promote the GENERAL WELFARE. Such regulations, Harlan argued, must be sustained by state and federal courts unless they clearly exceed legislative power, bear no substantial relation to societal welfare, or invade rights secured by FUNDAMEN- TAL LAW . Harlan concluded that doubts as to the validity of a statute must be resolved in favor of upholding its validity. Applying this standard, Harlan found the Bakeshop Act valid. Holmes’s dissent is considered a classic exposition of judicial self-restraint. As part of the U.S. system of democracy, Holmes stated, a majority of adults residing in any state have the “right to embody their opinions in law,” even if those opinions are tyrannical or injudicious. It is the judiciary’s role in this system to interpret and apply the laws passed by the coordinate branches of government. Notwithstanding the Court’s decision in Lochner, state legislatures were apparently free to maintain a paternalistic role when enacting similar laws that applied only to women. Three years after Lochner, the Court upheld the constitutionality of an Oregon statute that restricted women from working more than ten hours per day in a mechanical establishment, factory, or laundry. Muller v. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908). Although the statute was very similar to the New York statute, except that it applied to women, the Court clearly based its decision upon its perception that women were inferior to men. According to the majority opinion written by Justice DAVID BREWER, “That woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious … history discloses the fact that woman has always been dependent upon man.” Because the Court found that the statute was designed for what it con- sidered the necessary protection of women in the workplace, the Court upheld the statute as constitutional under the Fourteenth Amend- ment. In doing so, the Court specifically left the RULING in Lochner intact. Lochner remained the controlling precedent for nearly 30 years; it was overruled finally in WEST COAST HOTEL CO. V. PARRISH, 300 U.S. 378, 57 S. Ct. 578, 81 L. Ed. 703 (1937). Parrish examined the validity of a Washington state statute that established a MINIMUM WAGE for women. A hotel owner challenged the constitu- tionality of the statut e on the grounds that it violated his liberty of contract guaranteed by the Fourteenth Amendment. The hotel owner relied on Lochner and a series of subsequent cases that nullified various state regulations as inconsistent with the substantive rights protected by the Due Process Clause. One of these cases, Adkins v. Children’s Hospital, 261 U.S. 525, 43 S. Ct. 394, 67 L. Ed. 785 (1923), invalidated a similar minimum wage law in the DISTRICT OF COLUMBIA. But the Supreme Court was no longer persuaded by the rationale underlying Lochner and ruled that the Washington statute was a reasonable exer- cise of the state’s police powers. In the 32 years between Lochner and Parrish, the United States was confronted by a STOCK MARKET crash in 1929, which precipitated the Great Depression of the 1930s. President FRANK- LIN D . ROOSEVELT attempted to combat some of the more serious problems of the depression by initiating a host of federal laws known collec- tively as the NEW DEAL. These events made many U.S. citizens more sympathetic to governmental largesse. The Supreme Court was also affected by these events. Where Lochner had underscored free-market laissez-faire principles, Parrish high- lighted the unequal bargaining power of employ- ers and employees, as well as the oppression and exploitation of female workers. Freedom of contract, the Supreme Court said in Parrish,is not an ABSOLUTE and uncontrollable liberty. Any lingering doubts as to the validity of Lochner were eliminated by the Supreme Court in United States v. Carolene Products Co., 304 U.S. 144, 58 S. Ct. 778, 82 L. Ed. 1234 (1938), which held that courts must susta in state and federal laws that regulate economic interests, unless there is no rational basis to support them. By contrast the Court said that legislation that “appears on its face to be within a specific prohibition of the Constitution … restricts … political processes … [or is] prejudic[ial] against discrete and insular minorities” WILL be subject to stricter scrutiny. The Carolene Products case ushered in the post-Lochner era. During this era the Supreme Court has offered little constitutional protection for contract and other property rights. At the same time, the Court has offered increasing protection against legislation that touches upon GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 394 LOCHNER V. NEW YORK a fundamental constitutional right or denies a governmental benefit to a suspect class of persons, what the Court in Carolene Products called “discrete and insular minorities.” Fundamental rights include most of the rights ENUMERATED in the first ten ame ndments to the Constitution, as well as the right to privacy, the right to travel, the right to vote, and the right to education. Suspect classes include groups of persons who are discriminated against on the basis of race, gender, national origin, or other “immutable” genetic characterist ics ( FRONTIERO V. RICHARDSON, 411 U.S. 677, 93 S. Ct. 1764, 36 L. Ed. 2d 583 [1973]). FURTHER READINGS Agomo, Chioma Kanu. 1995. “Work Environment and Women: U.S. Practice.” Annual Survey of International and Corporate Law. Bork, Robert H. 1997. The Tempting of America. New York: Free Press. Ely, James W., Jr., 1991. Review of Judicial Power and Reform Politics: The Anatomy of Lochner v. New York, by Paul Kens. Vanderbilt Law Review 44. Kordana, Kevin A. 1995. “Law Firms and Associate Careers: Tournament Theory versus the Production Imperative Model.” Yale Law Journal. Shell, G. Richard. 1993. “Contracts in the Modern Supreme Court.” California Law Review 81. CROSS REFERENCES Due Process of Law; Jurisprudence; Labor Law; Rational Basis Test; Substantive Law. v LOCKE, JOHN John Locke was a seventeenth-century English philosopher whose writings on political theory and government profoundly affected U.S. law and society. It is chiefly from Locke’s Two Treatises of Governme nt (1690) that U.S. politics takes its core premises of the ultimate SOVER- EIGNTY of the people, the necessity of restraints on the exercise of arbitrary power by the executive or the legislature, and the ability of the people to revoke their social contract with the government when power has been arbitra- rily used against them. The DECLARATION OF INDEPENDENCE and the U.S. Constitution are testaments to many of Locke’s central ideas. Locke was born in Wrington, Somerset, England, on August 29, 1632. His father, also John Locke, was an atto rney, and a Calvinist with Puritan sympathies who supported the parliamentary side in England’s struggle against King Charles I and fought on that side in the English CIVIL WAR of 1642. Despite this background Locke developed monarchist lean- ings while attending boarding school, which remained with him throughout his life. In 1652 Locke entered Oxford University, where he became interested in medicine and the newly developed discipline of experimental science. He colla borated with Robert Boyle, a founder of modern chemistry. Locke studied natural science and philosophy, concentrating on the principles of moral, social, and political laws. Following gradu ation in 1656, he earned a master of arts degree and was appointed a tutor at Oxford. He left teaching in 1662 and in 1666 decided to pursue medicine. In 1668 Locke was elected to the Royal Society. In 1675, plagued with the symptoms of consumption, Locke moved to France in the hope of improving his health. He studied philosophy while abroad, then returned to England in 1679. His friendship with the duke of Shaftsbury made his stay in England a short one. Shaftsbury had been discovered as having been involved in a conspiracy to overthrow the king. Though Shaftsbury was acquitted of the charges, he fled to Holland in 1683. The king became suspicious of Locke and other friends of Shaftsbury, and had Locke closely watched. Knowing that his personal safety was at risk, Locke also chose exile in Holland in 1683. In 1684 his name appeared with 83 others on a list sent to The Hague by the English government, with the accusation that those named had committed TREASON and a demand for their EXTRADITION by the Dutch government. Locke went into hiding for a while, but soon returned to public life when the Dutch refused the extradition request. While in Holland, Lock e wrote Essay Concerning Human Understanding (1690) and Two Treatises. Essay set forth Locke’s theory that all human kno wledge comes from experience. It stated that people are born without ideas—that is, with a blank mind—directly challenging the BELIEF that people are born with certain knowledge already implanted. It further stated that as a result people must formulate their ideas based on experience. This theory became the basis for the school of English philosophy called empiricism. Two Treatises was written when England was divided over the rule of King James II. The Protestants wished to remove the king, who was a Roman Catholic. In the Glorious REVOLUTION IT IS ONE THING TO SHOW A MAN THAT HE IS IN ERROR , AND ANOTHER TO PUT HIM IN POSSESSION OF TRUTH . —JOHN LOCKE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LOCKE, JOHN 395 of 1688, James abdicated the throne and Parliament offered the crown to the Dutch prince William of Orange and his wife, Mary. The revolution re-f ormed government along the lines outlined by Locke in Two Treatises, which was published in 1690. England became a constitutional monarchy, controlled by Parlia- ment, and greater measures of religious tolera- tion and freedom of expression and thought were permitted. Two Treatises was a blow to political absolutism. The first TREATISE was a refutation of the theory of the DIVINE RIGHT OF KINGS , which posits that monarchs derive their authority from God. The second treatise had the most lasting effect, for it set out a theory of politics that found its way into U.S. law. In this second treatise, Locke maintained that people are naturally tolerant and reason- able, but that without a governing force, a certain amount of chaos and other inconvenience WILL occur. In his view people are basically pacific, communitarian, and good-natured. This belief contrasts with that of philosopher THOMAS HOBBES, which is that if left to their own devices, people will live in violent, selfish anarchy. For Locke all people are inherently equal and free to pursue “life, liberty, health, and property.” To do this they engage in a social contract in which they consent to give up a certain amount of power to a government dedicated to maintaining the well-being of the whole. They also give up one right, the right to judge and punish other persons, which is permitted in the state of nature. Apart from that concession to government, Locke argued, a person’s individual right to freedom of thought, speech, and worship must be preserved. In addition, a person’s private property must be preserved by the government. This compact between the people and their rulers legitimizes the government and explains the source of the rulers’ power. Locke believed that the people’s consent to give up some power is the essential element of the social contract. Government is the trustee of the people’s power, and any exercise of power by government is specifically for the purpose of serving the people. By extending the trust analogy, Locke legitimized the concept of revolu- tion. If their trust is abused by their governors, the people—the grantors of the trust—have a right to revoke the trust. Once the trust has John Locke. THE LIBRARY OF CONGRESS John Locke 1632–1704 ▼▼ ▼▼ 1625 1700 1675 1650 ❖ 1632 Born, Wrington, Somerset, England ◆ 1642 Rebellion by Parliament initiated English Civil War ◆ 1649 Puritans defeated Royalists and Charles I beheaded; Commonwealth period began ◆ 1652 Entered Oxford University ◆ 1660 House of Stuart restored to throne and Charles II crowned; Royal Society founded ◆ 1668 Elected to Royal Society 1675–79 Lived in France 1683–89 Lived in exile in Holland ◆ 1688 James II deposed in Glorious Revolution ◆ 1689 Wiliam III and Mary II crowned king and queen of England ◆◆ ❖ 1704 Died, Oates, England 1693 Some Thoughts on Education published 1690 Two Treatises of Government and Essay Concerning Human Understanding published GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 396 LOCKE, JOHN been revoked, the people can assume the reins of government themselves or place them in new hands. Locke attempted to soften this justification for revolution by claiming that revolution is appropriate only as a LAST RESORT and only in extreme circumstances. But he gave no real guidance as to how the people can be trusted to distinguish between inevitable temporary aber- rations, which are to be endured, and a long series of abuses that justifies rebellion. Two Treatises was well received in England, making Locke a respected figure once more and the intellectual leader of the WHIG PARTY.He returned to England in 1689, following the Glorious Revolution. He lived in semiretire- ment in Essex, in the company of friends such as the scientist Sir Isaac Newton. He died October 28, 1704, in Oates, Essex. Two Treatises commanded great interest in the eighteenth century, providing justification for the American Revolution in 1776 and the French Revolution in 178 9. The U.S. Declara- tion of Independence uses Locke’s ideas of the law of nature, popular sovereignty, and the sanctity of the right of private property to set forth the premises of U.S. political thought. The U.S. Constitution, with its separation of church and state and its guarantee of personal freedoms, draws on Locke’s work. In the United States, Lockean thought continues to justify resistance to executive tyranny, such as the despotism that was exhibited by Presid ent RICHARD M. NIXON in the WATERGATE affair in the early 1970s and led to his resignation in 1974. Locke’s second treatise provides support for U.S. constitutional ideals of INALIENABLE rights and person al liberty. The FIRST AMENDMENT would be unthinkable without Locke’s philosophical foundati on. FURTHER READINGS Damstedt, Benjamin G. 2003. “Limiting Locke: A Natural Law Justification for the Fair Use Doctrine.” Yale Law Journal 112 (March). Available online at http:// yalelawjournal.org /112/5/11 79_benjamin_g_damstedt. html; websit e home page: h ttp://yalelawjournal.org (accessed August 8, 2009). Heyman, Steven J. 2000. “Natural Rights and the Second Amendment.” Chicago-Kent Law Review 76 (fall). Available online at http://www.saf.org/LawReviews/ HeymanChicago.htm; website home page: http://www. saf.org (accessed August 8, 2009). Richards, Peter Judson. 2002. “‘The Law Written in their Hearts?’: Rutherford and Locke on Nature, Government and Resistance.” Journal of Law and Religion 18 (winter). CROSS REFERENCES Constitution of the United States; Natura l Law; “Second Treatise on Government” (Appendix, Primary Document). LOCKOUT Employer’s withholding of work from employees in order to gain concession from them; it is the employers’ counterpart of the employee’s strike. Refusal by the employer to furnish available work to its regular employees, whether refusal is motivated by the employer’s desire to protect itself against economic injury, by its desire to protect itself at the bargaining table, or by both. CROSS REFERENCES Labor Law; Labor Union. LOCKUP A place of detention in a police station, court or other facility used for persons awaiting trial. In corporate law, a slang term that refers to the setting aside of securities for purchase by friendly interests in order to defeat or make more difficult a takeover attempt. A lockup option is a takeover defensive measure permitting a friendly suitor to purchase divisions of a corporation for a set price when any person or group acquires a certain percentage of the corporation’s shares. To be legal, such agreement must advance or stimulate the bidding process, to best serve the interests of the shareholders through encouraged competition. v LOCKWOOD, BELVA ANN Belva Ann Lockwood achieved prominence as the first woman to be admitted to argue cases before the U.S. Supreme Court. In addition to her legal career, she was active in many phases of the campaign for women’srights. Lockwood was born October 24, 1830 , in Royalton, New York. A graduate of Genesee College in Lim a, New York, in 1857, Lockwood received an honorary master of arts degree from Syracuse University in 1871 and a doctor of laws degree in 1908. Before her admission to the Washington, D.C., bar in 1873, Lockwood taught school from 1857 to 1868. She began her fight for women’srightswithherworkadvocatingthe GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LOCKWOOD, BELVA ANN 397 . poorly GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 390 LOBBYING laws—the Federal Regulation of Lobbying Act remains the only comprehensive law governing the practice of lobbying. Critics of the. political laws. Following gradu ation in 165 6, he earned a master of arts degree and was appointed a tutor at Oxford. He left teaching in 166 2 and in 166 6 decided to pursue medicine. In 166 8 Locke. POSSESSION OF TRUTH . —JOHN LOCKE GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION LOCKE, JOHN 395 of 168 8, James abdicated the throne and Parliament offered the crown to the Dutch prince William of Orange