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Rehabilitating Lochner: Defending Individual Rights against Progressive Reform Hardcover – May 15, 2011

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Product Details

  • Hardcover: 208 pages
  • Publisher: University Of Chicago Press (May 15, 2011)
  • Language: English
  • ISBN-10: 0226043533
  • ISBN-13: 978-0226043531
  • Product Dimensions: 6 x 0.7 x 9 inches
  • Shipping Weight: 15.2 ounces (View shipping rates and policies)
  • Average Customer Review: 4.6 out of 5 stars  See all reviews (10 customer reviews)
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5.0 out of 5 starsLochner and Constitutional History
By Robin Friedman HALL OF FAMETOP 100 REVIEWERVINE VOICE on June 18, 2011
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.Read more ›
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5.0 out of 5 starsOne of the best works of Constitutional history I have read
By MT57 on June 8, 2011
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.Read more ›
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5.0 out of 5 starsWhy What You Learned About Lochner in Law School was Wrong
By H. P. on November 19, 2011
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.Read more ›
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Most Recent Customer Reviews

5.0 out of 5 starsGreat text! I read this for one of my ...

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 more

Published 8 months ago by Chelsey
4.0 out of 5 starsExcellent trade!

Exactly as expected.

Published 10 months ago by Peter Namtvedt
4.0 out of 5 starsCheck your premises.....

An original thinker's thoughts are always worth reviewing especially in a society deformed by ideologies like the "progressive" movement. Mr. Read more

Published on June 26, 2013 by Leon Dixon
5.0 out of 5 starsWhy Did Obama Criticize Lochner?

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 more

Published on September 8, 2012 by Noforceofnature
5.0 out of 5 starsA Terrific Book

In this concise, stimulating, carefully-researched and readible book, Bernstein puts Lochner into its proper historical context. Read more

Published on April 14, 2012 by David T. Beito
4.0 out of 5 starsThought-provoking legal history that explores the tensions between...

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 more

Published on December 23, 2011 by E. Jaksetic
4.0 out of 5 starsA crucial contribution to the literature on economic freedom

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... Read more

Published on September 15, 2011 by Tim Sandefur

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