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Rehabilitating Lochner: Defending Individual Rights against Progressive Reform Paperback – November 13, 2012

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Editorial Reviews


"Intellectual history in its highest form. . . . Bernstein has done nothing less than explode the myth of Lochner, a decision that any pro-liberty student of American constitutional law should embrace. This is a book that will transform the way constitutional law is understood for years to come."

(Scott Douglas Gerber EH.net 2011-06-27)

"As every law student know, Lochner was a case in which a court packed with business sympathizers stuck it to the little guy in a shameless display of judicial activism. But, like a surprisingly large number of things everyone knows, this conventional wisdom is almost entirely wrong, and David E. Bernstein's new book, Rehabilitating Lochner, makes clear just how wrong it is—and how and why the Lochner narrative became established in the legal academy. . . . The false narrative of Lochner has controlled the past for decades but Bernstein's clear and incisive work may wrest that control away and move us back to the truth."—Glenn Reynolds, Commentary

(Glenn Reynolds Commentary 2011-06-01)

“An exhilarating book full of interesting new perspectives. Rehabilitating Lochner will change the way people think about the transition from the late nineteenth century to the modern New Deal and Civil Rights regime. It does what good revisionist history should do: see what is familiar in new ways.”—Jack M. Balkin, Yale Law School

(Jack M. Balkin Yale Law School)

“David E. Bernstein attempts the grand task of 'correcting decades of erroneous accounts' and succeeds with aplomb and notable timeliness. The story of how Joseph Lochner fought legislators and unions to bake his goods in freedom goes especially well with tea.”

(National Review 2011-07-04)

“David Bernstein drives home powerfully and convincingly the fact that the supporters of Lochner were the biggest proponents of protecting the personal rights of African Americans, Roman Catholics, and other minorities. Rehabilitating Lochner will have a profound impact on constitutional law scholarship.”

(William E. Nelson New York University)

“A terrific work of historical revisionism, Rehabilitating Lochner brings out some attractive resonances in libertarian themes associated with the widely disparaged constitutional jurisprudence of the period from 1905 to 1937, and some discordant undertones to the Progressive themes sounded during that period. It should induce some changes in the way many students and scholars read the cases from that period.”—Mark Tushnet, Harvard Law School

(Mark Tushnet Harvard Law School)

"Rehabilitating Lochner is about a US Supreme Court decision that generations of lawyers and law students have been taught to scorn as the imposition of obsolete economic dogma disguised as constitutional principle. Comes now David E. Bernstein to set the record straight. . . . Not all will find unchallengeable every point the author makes. Yet all will broaden their understanding of our national charter and what the Supreme Court has done with it over the past century or so."—Walther Barthold, New York Law Journal

(Walter Barthold New York Law Journal 2011-11-03)

“David E. Bernstein takes issue with conventional wisdom and argues that if one understands the larger context and broader stream of historical development, Lochner was a ‘good law’ at the time and, despite the fact that it was overruled, its core principles remain good constitutional law today. This is a delightful and informative book that deserves a broad audience.”
(Choice 2012-01-01)

"Rehabilitating Lochner does what it sets out to do very well, placing Lochner in its historical context, telling us where it came from, what it actually did, who attacked it, and what those people believed. . . . I highly recommend it to anyone interested in the topic."—Independent Review

(Independent Review 2012-12-15)

"A sharp and iconoclastic work of scholarship, one that challenges the deepest beliefs of those who defend almost omnipotent government."—Carolina Journal

(George Leef Carolina Journal 2012-02-01)

 "In this thought-provoking volume, David E. Bernstein attempts to “rehabilitate” the Lochner decision and place it in its proper historical context. . . .The book is a valuable corrective. . . . Bernstein approaches the material with a fresh perspective and a cogent analysis that questions both the received wisdom about Lochner and the categories that legal scholars have established to create distance between that era and our own, between judicial defense of civil rights and the judicial defense of economic liberties.”

(Mark Koyama H-SOUTH 2012-02-08)

“This well-written book is destined to be influential and controversial. . . . It is concise, lively, and one of the best examples of libertarian thinking about the Supreme Court’s role in limiting economic regulation.”
(Paul Kens H-LAW 2013-06-11)

About the Author

David E. Bernstein is Foundation Professor at the George Mason University School of Law and the author of several books, including, most recently, You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws.


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Product Details

  • Paperback: 208 pages
  • Publisher: University Of Chicago Press; Reprint edition (November 13, 2012)
  • Language: English
  • ISBN-10: 022600404X
  • ISBN-13: 978-0226004044
  • Product Dimensions: 6 x 0.8 x 9 inches
  • Shipping Weight: 9.9 ounces (View shipping rates and policies)
  • Average Customer Review: 4.6 out of 5 stars  See all reviews (10 customer reviews)
  • Amazon Best Sellers Rank: #756,042 in Books (See Top 100 in Books)

More About the Author

David Bernstein was born and raised in Queens, N.Y. He attended Brandeis University, where he graduated summa cum laude, and where he was the first student in the university's history to write regular opinion columns for the school newspaper from a conservative or libertarian perspective. Bernstein then attended and Yale Law School, where he was a John M. Olin Fellow in Law, Economics, and Public Policy.

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.

Customer Reviews

Top Customer Reviews

Format: Hardcover
My interest in American history and constitutional history prompted me to read this new book, "Rehabilitating Lochner: Defending Individual Rights against Progressive Reform" (2011) by David Bernstein. Bernstein in the Foundation Professor at the George Mason University School of Law in Virginia. The book is published under the auspices of the Cato Institute.

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.
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Format: Hardcover
This slim volume is pithy and thought provoking. As the introduction says, "Lochner is likely the most disreputable case in modern consititutional discourse". President Obama equated it to the Dred Scott decision. It has been reduced to an epithet, an emblem of arrogant judicial lawmaking, and worse, of siding with "capitalists over workers" as the author aptly says. The author takes on the daunting task of challenging this conventional wisdom, "rehabilitating" Lochner and the doctrines associated with it. He succeeds brilliantly.

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.
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Format: Hardcover Verified Purchase
If you attended law school in the past couple of decades, invariably you heard Lochner castigated as a Supreme Court decision second only to Dred Scott, and maybe Plessy v. Ferguson, in its wickedness. As Professor Bernstein ably shows in his presentation of legal historians' new, more accurate understanding of the history of economic rights, this is less rooted in fact than in modern political battles.

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.
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