Counting cases about milk, our "most nearly perfect" food, 1860-1940

Law & Society Review, 2002 by Wright, Ronald F, Huck, Paul

At the turn of the 20th century, as more people in the United States started moving to urban areas, the quality of the milk supply became one of the preeminent public health challenges of the day and a centerpiece of the Progressive agenda. Governments passed ordinances and statutes to safeguard the milk supply and sanctioned violators of these laws. This study collects the published cases where judges were asked to enforce these health regulations.

Contrary to the Revisionist reading of Progressive Era constitutional history, these cases demonstrate that enforcement of these health laws became more difficult during the Progressive Era. Parties resisting these laws made broader constitutional challenges to the laws more often. While the number of victories for these parties remained steady, the scope of their victories became broader. The study also throws light on the early use of "regulatory crimes."

Governments were more likely throughout the study period to use a criminal rather than a civil enforcement process. Surprisingly, the use of criminal enforcement did not affect the government's success rate in these cases.

Introduction

Milk today seems so benign. But at the turn of the 20th century, safe milk was one of the preeminent public health challenges of the day. As people in the United States moved from the countryside into cities, their milk supply became unhealthy. Milk from cows in the country was transported further and stored at higher temperatures than in the past. Milk produced closer to the cities came from cows kept under crowded and unsanitary conditions. Many city residents, especially children, were getting sick and dying because of contaminated milk.

These threats to a food with special importance for children-praised as nature's "most nearly perfect" food (Crumbine & Tobey 1930:17; Wain 1970:250)-spurred governments at all levels into action. Health regulators were confident they could solve the milk problem. Beginning in the northeastern United States in the 1860s, and spreading throughout the nation by the 1900s, governments passed ordinances and statutes to safeguard the health of the milk supply. They pursued and punishedsometimes as criminals-those wrongdoers who distributed unsanitary milk.

As a result of the rising tide of governmental activity between 1860 and 1940, milk health regulation figures in two of the most familiar stories in the canon of legal history. The first of these stories deals with constitutional history. The treatment of milk safety laws in the courts was a key example of attempts, often unsuccessful, to enforce Progressive Era health legislation. The account familiar to students of constitutional history emphasizes the judges' hostility to health and safety regulation during the Progressive Era. Judges overturned many statutes and rules on constitutional grounds and were slow to accept the legitimacy of many laws defended as health regulations.1 This judicial hostility to popular health and safety laws created an institutional crisis.

By the end of the New Deal period, the backlash from this judicial effort to resist legislation led many judges to change course.

They began to defer to legislative decisions about health and economic matters (the so-called "switch in time that saved nine") (Fried 1998; Murphy 1972:41-167; Tribe 2000:1357-71).

Over the years, the truth of this oft-repeated story has come into question. Revisionists have pointed out that many health and safety statutes did survive constitutional challenges (Friedman 1985:355-58, 457-63; Semonche 1978; Urofsky 1985). Constitutional defeats for these laws did become more common during the Progressive Era, but the number of losses always remained low. Revisionists say that the occasional setbacks should not obscure an overall picture of judicial acceptance of health and safety statutes.2

These constitutional debates, however, have proceeded on the basis of surprisingly sketchy information about actual enforcement patterns. Most of the attention has focused on a handful of decisions by the United States Supreme Court and a few of the highest state courts, in areas ranging from worker safety to food and drug regulation. However, these famous cases do not capture all the ways that judges blocked the enforcement of safety and health legislation.

Even the simplest questions about the enforcement of health and safety legislation remain unanswered. Did parties trying to enforce health regulations have more difficulty in some years than in others? Did they experience different obstacles in different parts of the country? This article is an effort to add depth to our knowledge about these baseline enforcement patterns in one limited but crucial area: milk safety regulation. Information about enforcement practices helps better inform our understanding of the constitutional law that courts were making at the time.

Milk also figures in a second classic story in the canon of American legal history: the origins of white-collar crimes. Although regulatory crimes date back to colonial times, the growth of the administrative state in the late 19th century saw the creation of many new regulatory crimes. The legislatures and city councils passing these laws were remarkably casual about their choice of enforcement systems. They often used criminal sanctions to take advantage of the existing enforcement bureaucracy: Local investigators and prosecutors were already available to discover violations and to file the court case (Friedman 1993:115-22). At the same time, these lawmakers ignored the usual features of criminal enforcement. They often bypassed the usual requirement of a criminal intent and created "strict liability" crimes: A person could violate these new criminal laws without knowing that he or she was doing wrong. They also chose fines as the typical sanction instead of prison or jail terms (Sayre 1933; Note 1938).