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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: #1,005,299 in Books (See Top 100 in Books)

Customer Reviews

Top Customer Reviews

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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Format: Hardcover Verified Purchase
Bernstein is the nation's leading authority on the Lochner case, and his concise book is the first serious effort to put the case in its legal and historical context, and understand it rather than to caricature it for partisan reasons. The only other single volume about Lochner that I'm aware of is Paul Kens' 1998 treatment, which as I explain in my book, The Right To Earn A Living, is profoundly flawed. Nor does Bernstein try, as I and others do, to promote what he calls a "full throated defense of libertarian constitutional jurisprudence." Instead, Rehabilitating Lochner is a fair and carefully researched description of the history of the case, its consequences, and mostly of the bizarre relationship that Progressives, both past and present, have to the case. It might initially seem odd that Bernstein devotes only about two pages to the action decision itself, but that's because the case is much more important as a symbol than for its actual legal doctrine, which was basically a straightforward application of longstanding precedent protecting individual rights against arbitrary government action. But because Lochner was decided in 1905, when the Progressive era was in full swing, it became the target of attacks by partisans who sought greater government control over individual decisions. Thus it became "the key emblematic illustration" used by intellectuals who came from different philosophical backgrounds. "The long-standing myth of a wildly activist, reactionary Supreme Court imposing a grossly unpopular laissez-faire ideology on the American people on behalf of large corporate interests--with little concern for precedent, constitutional text, or individual or minority rights--is far removed from historical reality.Read more ›
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