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Rehabilitating Lochner: Defending Individual Rights against Progressive Reform Paperback – November 13, 2012
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(Jack M. Balkin Yale Law School)
About the Author
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After several years practicing law, Bernstein joined the faculty of the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995, and where he is currently the GMU Foundation professor.
Bernstein has written on a wide range of legal topics, including junk science in American courtrooms, affirmative action, conflicts between antidiscrimination laws and civil liberties, the legal response to Soviet spying in the U.S. after World War II, anti-Western and anti-Israeli ideology masquerading as international law, and more. He blogs for the Volokh Conspiracy at the Washington Post.
In the academic world, Bernstein is perhaps best know for his rewriting the standard history of the so-called Lochner era, the period of the early twentieth century when the Supreme Court tried (in vain) to keep government within constitutional boundaries as traditionally understood. Bernstein's books and articles on the subject suggest that "Lochner-era" Supreme Court decisions were subject to unfair and inaccurate caricature by generations of historians who read the decisions through the lens of modern Progressive ideology, rather than understanding them on their own terms in their historical context.
Bernstein's books include Rehabilitating Lochner: Defending Individual Rights against Progressive Reform; You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws; The New Wigmore: Expert Evidence (co-author); and Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal.
His latest book, Lawless: The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law, has just been published.
Top Customer Reviews
Bernstein's study examines the decision in and subsequent historical reception of a 1905 decision of the United States Supreme Court in Lochner v. New York, 198 U.S. 45. In Lochner, the Supreme Court by a vote of 5-4 held unconstitutional a New York statute that limited the working hours of bakers to ten hours per day and 60 hours per week. The decision was to achieve notoriety in American constitutional law. I remember well discussions of the decision in my law school studies of more than thirty years ago.
To many legal scholars and historians, Lochner has become emblematic of a rejected jurisprudence in which judges used their own policy preferences and economic theories to invalidate legislation under the guise of constitutionalism, particularly, in this case, under the "due process" clause of the Fourteenth Amendment: "nor shall any state deprive any person of life, liberty, or property without due process of law." In Lochner, five members of the Supreme Court in an opinion by Justice Peckham ruled that the New York statute deprived bakers and their employees of their right to "liberty of contract" -- to make a contract to dispose of their labors, in derogation of the Fourteenth Amendment.Read more ›
In chapter 2, he lays out facts about the Lochner case itself that one never learns about in Con Law. Far from being a law to protect workers from oppresive employers, he demonstrates that the law overturned by Lochner was sponsored by the biggest employers in the baking sector in New York, to cut out competition from mom and pop and neighborhood bakeries, often owned by more recent immigrants than the established families that owned the large bakeries.
He locates the Lochner opinion in context of other state and federal opinions of the time, some of which fall to its left and others of which fall on the right along side it, and succinctly explains how the "substantive due process" label both fits, and doesn't fit, the underlying jurisprudence.
In chapter 7, he traces how Lochner went from being just another Supreme Court decision to the epithet it has now become, through prominent casebooks used in law school to Professor Tribe's treatise on the subject.
He traces the crippling of the doctrine of liberty of contract in chapter 6, and does a much better job in that single chapter than others have done in much longer works. He has single sentences that convey as much information as many law review articles.Read more ›
In Lochner v. New York, the Supreme Court famously invalidated a state law that limited the number of hours a day a baker could work. Perhaps unfairly, it is seen as the flagship case for the now much-reviled idea there is a liberty of contract right implicit in the Due Process clause of the 14th Amendment. However, as Prof. Bernstein shows, Lochner was neither extraordinary nor unprecedented. He also paints a very different picture of the context surrounding the case than that typically given today. It was not a showdown between big business and workers. The large bakeries by and large supported the law because it hurt their small competitors more than them (the law was also heavily union-supported). I also found it interesting that this was an early example of a "test" case--small bakery owner Lochner, seen as a sympathetic plaintiff, coordinated his indictment for violating the law with an employee.
Prof. Bernstein organizes his book into eight plainly named chapters: The Rise of Liberty of Contract, The Lochner Case, Progressive Sociological Jurisprudence, Sex Discrimination and Liberty of Contract, Liberty of Contract and Segregation Laws, The Decline of Liberty of Contract, and the Rise of "Civil Liberties", Lochner in Modern Times, and Conclusion.
Prof. Bernstein buttresses his direct discussion of Lochner in the early chapters with ample context.Read more ›
Most Recent Customer Reviews
Great text! I read this for one of my courses, and I was initially skeptical about the Lochner decision. This book gives a great perspective to why Lochner was a historical case. Read morePublished 2 months ago by Chelsey
An original thinker's thoughts are always worth reviewing especially in a society deformed by ideologies like the "progressive" movement. Mr. Read morePublished on June 26, 2013 by Leon Dixon
On April 3, 2012, referring the upcoming Supreme Court opinion on Obamacare, President Obama said, "We have not seen a Court overturn a law that was passed by Congress on a... Read morePublished on September 8, 2012 by Noforceofnature
In this concise, stimulating, carefully-researched and readible book, Bernstein puts Lochner into its proper historical context. Read morePublished on April 14, 2012 by David T. Beito
The author, a law professor, contends that there is a need to challenge the conventional wisdom about the origin, meaning and significance of the Supreme Court's liberty of... Read morePublished on December 23, 2011 by E. Jaksetic