Two issues ago, the Claremont Review of Books published Richard Epstein’s review of my book, Rehabilitating Lochner. In the next issue, two conservative readers criticized Epstein’s review for endorsing Lochner. Claremont asked Epstein and me to respond. Claremont has now posted the letters to the editor and the responses here. My response focuses not on […]
Archive | Rehabilitating Lochner
Purdy Responds
Jed Purdy has posted an interesting (and extremely polite) response to my critique of his article on the Roberts Court and Lochner here.
Obama’s Progressive Mythology
Well, yesterday was certainly a good day for one of my least favorite American politicians of the twentieth century, Theodore Roosevelt, who combined gross economic ignorance with an almost adolescent jingoism. GOP frontrunner (!) Newt Gingrich has (once again) declared himself to be a “Theodore Roosevelt Republican” (though disclaiming the more socialistic Roosevelt of his […]
Myths of the Brandeis Brief
My latest article in the Green Bag (link will open seven-page PDF file): (1) First, social reform was not in nearly as much danger from Lochner as the standard story suggests…. (2) The supposed simple-minded formalism of late nineteenth and early twentieth century judges has been called into serious question by recent scholarship…. (3) Brandeis’s […]
Dialogue with Victoria Nourse on Lochner
University of Wisconsin Professor (and Seventh Circuit nominee) Victoria Nourse and I discussed Lochner v. New York for the Federalist Society’s Madison chapter. Wisconsin Eye (Wisconsin’s version of C-Span) was there, and posted this video of the event. In other Rehabilitating Lochner news, attorney Thomas Bowden’s review in the George Mason Law Review can be […]
Lochner and Constitutional Continuity
That’s the title of my new article in the Journal of Supreme Court History. For those without on-line access to the Journal, you can read the unformatted version here. The abstract: Lochner v. New York and the liberty of contract doctrine enunciated in that case have been denounced by legal scholars from all points of […]
Reason Reviews Rehabilitating Lochner
Here’s a taste of Damon Root’s review: Drawing on both previous legal scholarship and his own extensive historical research, Bernstein offers a definitive account of this misunderstood and unjustly maligned case. Not only did Lochner represent the victory of small-scale producers over large, politically connected special interests, Bernstein points out, but the ruling led directly […]
Liberal Reactions to George Will’s Lochner Column
I’ve been perusing the blogs to see how folks are reacting to Will’s column on Rehabilitating Lochner, which I blogged about yesterday. Many liberal commentators and blog commenters are taking the position that Will’s defense of Lochner is obtuse because restoring liberty of contract would take the U.S. back to the labor conditions of a […]
George Will on Rehabilitating Lochner
George Will’s latest column is devoted to my book! It starts: Liberal certitudes continue to dissolve, the most recent solvent being a robust new defense of a 1905 Supreme Court decision that liberals have long reviled — and misrepresented. To understand why the court correctly decided Lochner v. New York and why this is relevant […]
Complements to Rehabilitating Lochner
A reader emailed to say he enjoyed Rehabilitating Lochner, and wonders if I could recommend additional books on the same or closely related topics. Okay. Just note that my recommendation doesn’t necessarily constitute an endorsement of the author’s conclusions. David Mayer, Liberty of Contract: Rediscovering a Lost Constitutional Right. Very recent, and covers some of […]
Lochner and Child Labor Laws
One of the great oddities of discussions of Lochner v. New York is that the case consistently gets blamed for interfering with child labor laws. A few examples: After discussing Lochner’s support for freedom of contract, a public policy textbook by Professor Thomas A. Birkland states that “even the most basic child labor laws were […]
Gerber on Bernstein
ONU lawprof (and leading legal historian) Scott Gerber, himself the author of an important new book on the rise of the independent judiciary, reviews Rehabilitating Lochner for Eh.net. The punchline: “Rehabilitating Lochner is intellectual history in its highest form…. Bernstein has done nothing less than explode the myth of Lochner…. This is a book that […]
Breyer’s Dissent in Sorrell and Carolene Products
By David Bernstein on June 24, 2011 7:27 am in Commercial Speech, Constitutional Law, Rehabilitating Lochner
In Justice Breyer’s dissent in Sorrell v. IMS Health, he cited United States v. Carolene Products, a Fifth Amendment due process case from 1938, for the proposition that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators.” […]
Breyer Violates Godwin’s Bernstein’s Law
By David Bernstein on June 23, 2011 4:33 pm in Constitutional Law, Freedom of Speech, Rehabilitating Lochner
Back in April, I wrote, “We need a Godwin’s Law for constitutional litigation: the first side to raise Lochner, especially in a case not involving the Due Process Clause, automatically loses.” Let’s call it “Bernstein’s Law.” If Bernstein’s law was a criminal law, Justice Stephen Breyer would be going to jail for loooong time, given […]
Most Academic Books are Too Long
Not in absolute length, but relative to what they have to say. A few reasons: (1) Many academic books are revised Ph.D. theses. When you write a Ph.D. thesis, one goal is to show your review panel that you have mastered the literature. The easy way to do so is to cite and discuss everything […]