¹ For an exhaustive examination of this subject, see Report of the Committee on Recent Economic Changes, 2 vols. (N.Y., McGraw-Hill, 1929)Google Scholar

² Recently, some very noteworthy studies have been made in the attempt to grapple with our social and economic ills. Among the best are: Thomas, Norman, America's Way Out; A Program for Democracy (N.Y., Macmillan, 1931)Google Scholar; Paish, George Sir, The Way to Recovery (N.Y., Putnam, 1931)Google Scholar; Douglas, Paul H. and Director, Aaron, The Problem of Unemployment (N.Y., Macmillan, 1931)Google Scholar; Chase, Stuart, The Nemesis of American Business; and Other Essays (N.Y., Macmillan, 1931)Google Scholar; Donham, W. B., Business Adrift (N.Y., McGraw-Hill, 1931)Google Scholar; Moon, P. T., ed., Depression and Revival (Proceedings of Academy of Political Science, N.Y., 1931Google Scholar; Ely, R. T., Hard Times—The Way In and the Way Out (N.Y., Macmillan, 1931)Google Scholar.

³ Recorded by Ernest Poole from an interview with Brandeis, Mr.. American Magazine, LXXI, 481, 493Google Scholar.

⁴ See the present writer's article, “Mr. Justice Brandeis: A Student of Social and Economic Science,” University of Pennsylvania Law Review, LXXIX (April, 1931)Google Scholar.

⁵ Poole, op. cit., p. 492.

⁶ Brandeis, , Business—A Profession (1925), p. 326Google Scholar.

⁷ The following is Brandeis' statement of these principles: “Under scientific management the employee is enabled to earn without greater strain upon his vitality from twenty-five to sixty per cent, and at times even one hundred per cent, more than under the old system. The larger wages are made possible by larger production; but this gain in production is not attained by ‘speeding up.’ It comes largely from removing the obstacles to production which annoy and exhaust the workman—obstacles for which he is not, or should not be made, responsible. The management sees to it that his machine is always in perfect order. The management sees to it that he is always supplied with the necessary materials. The management sees to it that the work comes to him at proper times, with proper instructions and in proper condition. The management sees to it that he is shown the best possible way of doing the job; that is, the way which takes least time, which takes least effort, and which produces the best result.” From brief introduced at Interstate Commerce Commission hearing, January 3, 1911. Reprinted in Brandeis, , Scientific Management and the Railroads (1911), p. 91Google Scholar. See also Gilbreth, F. B., Primer of Scientific Management (1914)Google Scholar, Introduction by Louis D. Brandeis.

⁸ Brandeis, , Business—A Profession, p.49Google Scholar.

⁹ Birandcis, , Business—A Profession, pp. 18, 20Google Scholar.

¹⁰ “From the point of view of the workingman, the expense of providing old age pensions is a part of the daily cost of living. He should contribute while able to work to a fund which will sustain him when he ceases to earn. From the point of view of the employer, the expense of providing old age pensions is a part of the current expense of his business. He should pay as he goes the accruing cost of retiring employees who will become superannuated…. Every pension system should be contributory and coöperative; that is, the cost should be borne partly by the employer and partly by the employee, and preferably in equal shares.” Independent, LXXIII, pp. 188, 191 (1912)Google Scholar. Regardless of the party on whom the burden falls, Brandeis is sure that superannuation should be considered as a depreciation charge, and argued that the wage-earner must be protected in whosesoever employ he may happen to be when he reaches the period of superannuation. Any pension system that really protects, he insists, must confer upon the worker an absolute right. He characterized the system of discretionary pensions as “new peonage.” Ibid., p. 187.

¹¹ Brandeis, , Business—A Profession, pp. 54–55Google Scholar.

¹² Ibid., pp. 6–7.

¹³ Ibid., p. 61. “The reserve to ensure regularity of employment is as imperative as the reserve for depreciation; and it is equally a part of the fixed charges to make the annual contribution to that reserve. No business is socially solvent which cannot do so.” Quoted in Survey LX, p. 5 (April 1, 1929)Google Scholar.

¹⁴ Business—A Profession, p. 54.

¹⁵ Statement before a Senate committee hearing on trust legislation, Dec. 14, 1911. Reprinted in Lief, Alfred, The Social and Economic Views of Mr. Justice Brandeis (1930), p. 374Google Scholar.

¹⁶ Those who do the work [should] get in some fair proportion what they produce. The share to which capital as such is entitled is small. All the rest should go to those, high and low, who do the work. Ibid., p. 374. By workers, Brandeis meant managers, skilled handicraftsmen, and day-laborers.

¹⁷ For an extended and excellent statement of his position on this subject, See Brandeis' testimony before the United States Industrial Commission on Industrial Relations, 64th Cong., 1st Sess., 1915-16, Sen. Doc, Vol. 26, p. 7659 et. seq.

¹⁸ Ibid., p. 7659. “A wide distribution of stock, instead of being a blessing, constitutes, to my mind, one of the gravest dangers to the community. It is absentee landlordism of the worst kind…. Such a wide distribution of the stock dissipates altogether the responsibility of stockholders, particularly of those with five shares, ten shares, fifteen shares, or fifty shares. They recognize that they have no influence in a corporation of hundreds of millions of dollars capital. Consequently they consider it immaterial whatever they do, or omit to do; the net result is that the men who are in control, it is almost impossible to dislodge, unless there should be such a scandal in the corporation as to make it clearly necessary for the people on the outside to combine for self-protection.” Ibid., p. 7661. Any one conversant with the facts in connection with the recent controversy in the Bethlehem Steel Corporation will appreciate the truth of this statement.

¹⁹ Ibid., p. 7660.

²⁰ Ibid.

²¹ Ibid., p. 7662. He points out, for instance, that many states “have, in aid of industrial liberty, prohibited the employers from making it a condition not to join a labor union. It may become necessary to apply a similar prohibition against features in private pension schemes which have a tendency to unduly abridge the liberty of the individual workingman.” Brandeis, , Business—A Profession, p. 77Google Scholar.

²² See his statement before the House committee hearings on investigation of the United States Steel Corporation, Jan. 29, 1912, p. 2842 ff. “While this corporation [U. S. Steel] is the greatest example of a combination, the most conspicuous instance of combination of capital in the world, it has …. undertaken, and undertaken successfully, to deny the right of combination to the workingmen, and these horrible conditions of labor, which are a disgrace to America, considering the wealth which has surrounded and flown out of this industry, are the result of having killed or eliminated from the steel industry unionism. All the power of capital and all the ability and intelligence of the men who wield and who serve the capital have been used to make practically slaves of these operatives, because it does not mean merely in respect to the why in which they have lived, but the very worst part of all this is the repression. It is a condition of repression, of slavery in the real sense of the word, which is alien to American conditions.” Ibid., p. 2856.

²³ Brandeis, , Business—A Profession, p. 53Google Scholar.

²⁴ “When …. you increase your business to a very great extent, and the multitude of problems increase with its growth, you will find, in the first place, that the man at the head has a diminishing knowledge of the facts and, in the second place, a diminishing opportunity of exercising a careful judgment upon them. Further-more—and this is one of the most important grounds of inefficiency of large institutions—there develops a centrifugal force greater than the centripetal force. Demoralization sets in; a condition of lessened efficiency presents itself…. These are disadvantages that attend bigness.” Then follows a detailed examination of the records of numerous trusts. Hearings before the Committee on Interstate Commerce on the Control of Corporations, Persons, and Firms Engaged in Interstate Commerce. 62nd Cong., 2d Scss., S. Ecs. 98, Vol. I, p. 1147 et seq. (1912). See also Brandeis, , Other People's Money and How the Bankers Use It (1914), p. 102Google Scholar.

²⁵ “The grave objection to the large business is that, almost inevitably, the form of organization, the absentee stockholdings, and its remote directorship prevent participation, ordinarily, of the employees in such management. The executive officials become stewards in charge of the details of the operation of the business,they alone coming into direct relation with labor. Thus we lose that necessary coöperation which naturally flows from contact between employers and employees—and which American aspirations for democracy demand. It is in the resultant absolutism that you will find the fundamental cause of prevailing unrest; no matter what is done with the superstructure, no matter how it may be improved in one way or the other, unless we eradicate that fundamental difficulty, unrest will not only continue, but, in my opinion, will grow worse.” Statement before the United States Industrial Commission on Industrial Relations, 64th Cong., 1st Sess., 1915-16, Sen. Doc, Vol. 26, p. 7660.

²⁶ Poole, op. eit., p. 492.

²⁷ Ibid., p. 493.

²⁸ On the subject of minimum legislation, he said: “I am unable to see that there is any difference in principle between a minimum wage law and a law governing the hours of labor, or a factory safety law or a child labor law or any of the other laws of this character. We set out with the principle, the fundamental policy not only in the Constitution, but as the fundamental policy of the Anglo-American people, that liberty should not be restricted except in so far as required for the public welfare, health, safety, morals, and general public conditions…. The liberty of each individual must be limited in such a way that it leaves to others the possibility of individual liberty, the right to develop must be subject to that limitation which gives everybody else the right to develop; the restriction is merely an adjustment of the relations of one individual to another.” From a statement before the New York Factory Investigating Commission, Jan. 22, 1915, Vol. V, pp. 2880-2881.

²⁹ Brandeis, , Business—A Profession, p. 70Google Scholar.

³⁰ See Brandeis' statement before House committee hearings on interstate and foreign commerce, 63rd Cong., 2nd. Sess., Jan. 31, 1914, p. 4.

³¹ Quoted by Poole, op. cit., p. 493.

³² Brandeis, , Business—A Profession, p. 29Google Scholar.

³³ Ibid., p. 32.

³⁴ Brandeis, , “The Living Law,”Illinois Law Review. X, p. 461Google Scholar.

³⁵ Poole, op. cit., p. 493.

³⁶ Brandeis, , Business—A Profession, p. 316Google Scholar. See also his dissenting opinion in Adams v. Tanner, 244 U.S. 590, 597 (1917).

³⁷ Poole, op. cit., p. 493.

³⁹ For stimulating comments, see Mencken, H. L., American Mercury, XX, p. 122Google Scholar; Hamilton, W. H., “The Legal Philosophy of Justices Holmes and Brandeis,” Current History, XXXIII, p. 654Google Scholar; Hapgood, Norman, “Justice Brandeis: Apostle of Freedom,” Cotton., CXXV, p. 330Google Scholar; review of Lief's Social and Economic Views of Mr. Justice Brandeis, by Hutcheson, Judge Joseph C. Jr., Yale Law Journal, XV, May, 1931Google Scholar; Pollard, J. P., “Justice Brandeis and the Constitution,” Scribner's Magazine, LXXXVII, p. 11Google Scholar.

³⁹ For an interesting statement of the right of the court to take judicial notice of such facts, see Brandeis' testimony in hearings before the House committee on interstate and foreign commerce, 63rd Cong., 2nd Sess., Feb. 4, 1914, p. 106ff.