Rehabilitating Lochner

Before I get into the substance of this post, I want to point out that a week ago I compared 2011 to 1989 and 1848 and said that Libya might be next.  Behold the power of this blog a week later!  (I’m kidding, of course, but it shows you that many of these Arab dictatorships have a glass jaw.  You wonder how long Saudi Arabia can resist the tide.)

Professor David Bernstein of George Mason Law School (and the Volokh Conspiracy) is coming to IU–Indianapolis tomorrow to discuss his new book on Lochner.  It’s a terrific read and very convincing.  What really struck me was his point that the so-called legal realists of the early twentieth century were completely unwilling to probe how legislatures worked.  Their deference to statutes reflected a highly formalist view of democracy, especially in an era where state legislatures were malapportioned and rife with corruption.  Now of course that was because they liked a lot of what these legislatures were doing, but even in cases when they did not there was no effort made to get behind the stated reasons for the law.  It was a curious blind spot that plagued powerful minds such as Learned Hand, Oliver Wendell Holmes, and Felix Frankfurter.

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2 Responses

  1. Mike Zimmer says:

    IMHO Lochner was wrong because the Court failed to allow state legislatures to consider adhesion power in contracts as a reason for regulation. Should Lochner be rehabilitated by turning it into a weapon of consumers/employees to attack legislation that has been only enacted because of special interest pressures? Thus, Caroline Products and Lee Optical could arguably go the other way if it could be shown that the laws there were simply the product of special interest push by Carnation in one and the opthamologists in the other. Interesting.

  2. Shag from Brookline says:

    Rehabilitating Lochner woud have what impact on subsequent decisions that had tarnished Lochner? Would it restore Randy Barnett’s lost Constitution? Does the author make clear his goals for such rehabilitating?