Counting Cases About Milk, Our 'Most Nearly Perfect Food,' 1860-1940

Abstract

In this paper, we study outcomes in a large group of appellate decisions to throw light on the enforcement of health regulations before and during the Progressive Era. We draw inferences about the use of criminal versus civil sanctions in the early days of the white collar crime era, and about the willingness of judges to enforce health legislation. At the turn of the twentieth 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 explores 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.