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More on Lochner

To answer Orin's query below, there aren't many scholars who have argued that Lochner was correctly decided, but there are some, including not just Siegan, but the VC's own Randy Barnett, Richard Epstein, Ellen Frankel Paul, Roger Pilon, among others. There are a number of other scholars who are generally sympathetic with Lochnerian cases, but haven't endorsed the particular holding of Lochner, including Alan Meese, Michael Phillips, and Chris Wonnell. Yet another group of scholars argue that the Court went too far in the Lochner era, but that the Court then went too far in the opposite direction in completely refusing to protect economic liberty. Walter Dellinger, Rebecca Brown, David Strauss, among others, fall into this category. A fourth group, including Bruce Ackerman and Owen Fiss, seems to think that Lochner was correct for its time, but properly didn't survive the New Deal Reformation.

Meanwhile, revisionist legal historians including myself, G. Edward White, Barry Cushman, and Howard Gillman have spent the last couple of decades placing Lochner and its progeny in historical context, destroying the myth that Lochner was a "Social Darwinist" opinion issued by a Court seeking to favor corporate power over the rights of workers, and showing that the Court's reasoning was consonant with American political and judicial tradition. Meanwhile, Justice Holmes, author of a famous pithy dissent in Lochner, has seen his reputation plummet.

Contrast the above with the virtually universal condemnation of Plessy or Dred Scott, and one can see that Lochner is no longer in the same anti-canonical league as those opinions. And contrast the above with the way Lochner and its progeny were universally condemned a couple of decades ago, to the extent that after a reasonably exhaustive search I could find only one law review article published between 1937 and 1980 (the year Siegan's book was published) even mildly praising "economic substantive due process." All in all, Lochner is losing its anti-canonical status, and Siegan is as responsible as anyone.

Juan Notwithstanding the Volokh:
And so the struggle to return the Constitution in Exile continues.
4.4.2006 4:34pm
alkali (mail) (www):
Meanwhile, Justice Holmes, author of a famous pithy dissent in Lochner, has seen his reputation plummet.

Pfft. We should all be so unlucky.
4.4.2006 4:54pm
Dilan Esper (mail) (www):
I think Lochner gave freedom of contract a bad name. There is nothing wrong with the principle, and there have been economic liberty cases that have shown why it is so ill-advised to afford no protection to such rights, e.g., forcing hair braiders to obtain cosmetologists' licenses, etc. There is a strong case for scrutiny of regulations to ensure that they actually relate to health or safety rather than amounting to simple rent-seeking.

The problem is, Lochner struck down a maximum hours law in a profession where such laws surely have a rational basis. And other cases using the same rationale struck down all sorts of other health, safety, and labor regulations. People saw the unfairness of this, and rebelled against Lochner, and the result was no constitutional protection at all for freedom of contract.

I do think freedom of contract will make a comeback as people are able to separate the honorable principle from its dishonorable application. However, I would advise advocates-- it's probably smarter to defend the principle apart from Lochner than to defend Lochner itself.
4.4.2006 5:11pm
Justin (mail):
"Justice Holmes, author of a famous pithy dissent in Lochner, has seen his reputation plummet."

I think you completely underestimate the case against Lochner - the list of people you cite are mostly fellow travelers in a small (and, as above-mentioned, pro-Constitutional-in-Exile, the movement that the right has argued as too insignificant as to merit attention or worry) legal scholar group that has no practical effect on judges or policymakers. The rest are insignificant lone dissenters (i.e., Bruce Ackerman taking an unconvential defense while still not actually saying Lochner is currently okay law).

That Lochner (constitutional protection from contract interference) can be mentioned in the same SENTENCE as Dred Scott (pro-slavery) and Plessy (pro-segregation) shows how weak the Lochner defender's position is currently viewed.
4.4.2006 5:52pm
Smart Alec:
Hey, New York Judge Napolitano, of FOX News fame, wrote a book entitled Constitution in Exile. If a Constiutional scholar of that caliber wrote a book with that title, then it must be true! :P

There are a couple of profs not on David's list at my law school who also think Lockner was rightly decided, or at least got the right conclusion. And I know of an attorney with the citation to Lochner as his license plate. I think support of Lochner is more prevalent than some might think...it's just underground.
4.4.2006 5:58pm
Juan Notwithstanding the Volokh:
Hilarious! There is no "Constitution in Exile" movement . . . it's just that support for the idea is underground.
4.4.2006 6:56pm
Greedy Clerk (mail):
Typical, typical David Bernstein red herring. No sane person says that Lochner deserves a place with Plessy or Dred Scott. (DB employed the same type of argument re where conservatives are safe on campus --- anyone complaining about DB's characterization of the plight of conservatives were hypocrites who would have no problem with people asking where blacks could go to college and not get lynched.)
4.4.2006 7:15pm
JohnAnnArbor:
Meanwhile, revisionist legal historians including myself,

Minor question:
What is up with the epidemic of people saying "myself" instead of "me"?
4.4.2006 7:35pm
davidbernstein (mail):
There are many, many, authors who have put Dred Scott, Plessy, and Lochner in the same category. E.g., Jerry Elmer, A Victory for Gay Rights in Lawrence v. Texas, 52 R.I. B.J. 5, 5 (2003). "[a] dreadful ruling that easily earned its place in the pantheon of the all-time worst Supreme Court decisions, along with such other notable cases as Dred Scott v. Sanford,... Plessy v. Ferguson, .... and Lochner v. New York"; Toni M. Massaro, 21 Const. Comment. 547 "the cautionary tales of Lochner v. New York, Korematsu v. United States, Dred Scott v. Sandford, and Plessy v. Ferguson"; Robert J. Cottrol, 48 St. Louis U. L.J. 839 ("It has helped push to the periphery of our collective consciousness the Supreme Court's many constitutional lapses, Dred Scott v. Sandford, United States v. Cruikshank, Plessy v. Ferguson, Lochner v. New York, and Korematsu"; Eric L. Muller, 1 Ohio St. J. Crim. L. 103, ("it would not stand directly alongside Dred Scott, Plessy v. Ferguson, and Lochner v. New York in the Court's Hall of Shame").

Those are just a few examples from a quick Westlaw search, and all since 2003. But I guess they are all insane. More to the point, Greedy Clerk has been a "victim" of the trend I describe to see Lochner in a far more favorable light than many people have seen it, and continue to see it.
4.4.2006 11:12pm
davidbernstein (mail):
What the heck, a couple more: Michael Paulsen, Notre Dame Law Review, 2003: "The U.S. Supreme Court has committed more than its fair share of judicial atrocities over the past 210 years: Dred Scott v. Sandford, Plessy v. Ferguson, Korematsu v. United States, Prigg v. Pennsylvania, Lochner v. New York."

Patrick Gudridge, Harvard Law Review, 2003: "Korematsu is an infernal baseline. Like Lochner, Dred Scott, and Plessy, it marks what we hope not to repeat...."
4.4.2006 11:15pm
davidbernstein (mail):
More fun: Causeway Medical Suite v. Ieyoub,
109 F.3d 1096, 5th Cir. 1997 ("In Dred Scott, Plessy, and Lochner, the Court made things worse by inserting itself into, and preempting, the national debate.")
4.4.2006 11:21pm
Justin (mail):
If those are all since 2003, that's hardly any evidence that their status has since declined. It only goes to show that even TODAY, when nobody here disagrees that Lochner is no Plessy or Dred Scott (for the race issues alone), people are still willing to group the three together. As such, if anything, wouldn't that defeat, rather than bolster your argument, DB?
4.5.2006 12:40am
davidbernstein (mail):
Justin, nope, it just shows that the Scott-Plessy-Lochner anticanonical trilogy is so ingrained in legal consciousness that even as Lochner loses its anti-canonical status, it still sometimes gets lumped in with the other cases, though likely less frequently now than in the past.
4.5.2006 12:45am
SLS 1L:
FWIW, Lochner appears to be no less anti-canonical among Stanford Law students than ever before. At least I have yet to find any students interested in defending it. Or, for that matter, who have any sympathy for the view that not everything is interstate commerce.
4.5.2006 4:45am
Justin (mail):
DB, while it is CONSISTENT with such a hypothetical, I don't think it's even plausible that it "shows" that.
4.5.2006 10:52am
Justin (mail):
SLS1, I think the "we need limiting principles on Wickard" crowd is significantly more mainstream than the "Lochner was good law" crowd.
4.5.2006 10:53am
davidbernstein (mail):
Justin, who said it showed that? I was responding to Greedy clerk's assertion that no one sane thinks Lochner was as bad as Dred Scott or Plessy.
4.5.2006 11:09am