Millions of American teens are employed today in a variety of workplaces. The jobs they hold typically provide little human capital for their future economic self·sufficiency, and pose substantial immediate and long-term safety, academic, and behavioral risks for this generation. This Article seeks to answer the question of how American law and society reached this situation, which has such disastrous effects for working youth, their families, and society as a whole. Three main themes are developed:
1. Child labor has always been part of the American economy, from colonial times until today. While there have been more than 150 years of effort to curtail youth employment, this movement has been generally unsuccessful at both federal and state levels.
2. The federal courts, and particularly the United States Supreme Court, defeated repeated statutory attempts to restrict child labor. This judicial activism is demonstrated by the previously untold factual and legal history of several cases, especially the famous decision in Hammer v. Dagenhart.
3. With Locknerism finally demolished by the Great Depression of the 1930s, the passage of the Fair Labor Standards Act of 1938 was to be the death knell for child labor. This victory was, in fact, pyrrhic. The weaknesses of the FLSA resulted in the continuation of youth employment. These statutory deficiencies were the outcome of a toxic combination of factors: profits from cheap labor, entrenched and powerful economic interests, and racism.
Seymour Moskowitz, Dickens Redux: How American Child Labor Law Became a Con Game, 10 Whittier J. Child & Fam. Advoc. 89 (2010).