In comments to some of my recent posts, some commenters have suggested that few people nowadays get especially worked up about Lochner v. New York. Rather, it’s Bush v. Gore, or Korematsu, or Citizens United, that raises hackles, with Lochner seen perhaps as a quaint anachronism with little modern relevance. I agree that over time, […]
Archive | Rehabilitating Lochner
Commentary Reviews Rehabilitating Lochner
The review is by Instapundit’s Glenn Reynolds, and it starts like this: With the possible exception of Plessy v. Ferguson, which gave us the racial doctrine of “separate but equal,” the case of Lochner v. New York stands as the most reviled decision of the post–Civil War Supreme Court. As every law student knows, Lochner […]
Some Controversies Addressed by Rehabilitating Lochner
When authors blog about their academic books, they often give what amounts to a very long synopsis, or even a chapter-by-chapter rundown, of the book over many posts. Instead of doing that here, I thought I’d give some “teasers” about my Rehabilitating Lochner book by noting one historical controversy addressed in each chapter. Chapter 1: […]
Rehabilitating Lochner Event at the Cato Institute Monday at 4 pm
VC readers in the DC area are invited to a book form on Rehabilitating Lochner at the Cato Institute on Monday at 4:00 p.m. Here are the details from the Cato website: Speakers: David Bernstein, George Mason University School of Law; with comments by Louis Michael Seidman, Georgetown University Law Center; and Gregory E. Maggs, […]
I’ve Posted the Introduction to Rehabilitating Lochner
on SSRN. Here is the abstract: This paper is the Introduction to David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011), which will be officially released in May [but is already shipping from Amazon]. The Introduction makes the following points, which are elaborated upon and defended in the […]
Yet More “Life Imitates Rehabilitating Lochner”
Rehabilitating Lochner, Conclusion: The longstanding 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. The academics who invented the prevalent mythology likely sought, consciously […]
Rehabilitating Lochner News
(1) Amazon is shipping the book, though its official publication date is more than a month away. Those who preordered from Amazon have already received it. (2) Larry Solum’s Legal Theory Bookworm recommends the book. (3) Tim Sandefur was one of the pre-orderers, and he calls Rehabilitating Lochner “the first serious effort to put the […]
The One and Only Substantive Due Process Clause
By David Bernstein on March 23, 2011 7:48 pm in Constitutional History, Constitutional Law, Constitutional Theory, Originalism, Rehabilitating Lochner
Attorney Ryan Williams recently published an article in the Yale Law Journal called “The One and Only Substantive Due Process Clause.” It’s pathbreaking. Essentially, Williams argues that in 1791, when the Fifth Amendment’s Due Process Clause was enacted, “due process of law” had only a procedural meaning, and only guaranteed proper judicial procedures. By 1868, […]
The Progressive-Conservative View of Judicial Restraint
By David Bernstein on February 26, 2011 11:50 pm in Constitutional History, Constitutional Law, Rehabilitating Lochner
From the U. Va. Fed-Soc blog on the student conference that took place this past weekend: Professor [Jeffrey] Rosen responded with a call to resist Professor Barnett’s libertarian interpretive approach and look to the traditional conservative model of judicial deference to the political process…. Professor Rosen proposed a framework of three divergent “conservative” approaches to […]
More “Life Imitates ‘Rehabilitating Lochner'”
By David Bernstein on December 27, 2010 9:39 pm in Constitutional History, Constitutional Law, Health Care, Rehabilitating Lochner
In a previous post, I noted that in my forthcoming book, I point out that academics invented the notion of a “Lochner era” in which the U.S. Supreme Court was single-mindedly determined to invalidate all manner of economic regulation. In doing so, they conflated a host of different constitutional provisions–due process, commerce clause, nondelegation doctrine, […]
Life Imitates Rehabilitating Lochner
By David Bernstein on December 13, 2010 9:44 pm in Constitutional History, Health Care, Rehabilitating Lochner
[UPDATE: Not worth responding to a certain obnoxious blogger, but, for those who are interested, feel free to check out the praise for my book from notorious right-wingers (NOT!) Jack Balkin, William Nelson, Mark Tushnet, and G. Edward White.] Rehabilitating Lochner, Conclusion: The longstanding myth of a wildly activist, reactionary Supreme Court imposing a grossly […]
Book Blurbs
Amazon has published the blurbs for my forthcoming “Rehabilitating Lochner: Defending Individual Rights against Progressive Reform.” Blurbs obviously are subject to selection bias, but I still think these are pretty nice. “An exhilarating book full of interesting new perspectives. Rehabilitating Lochner will change the way people think about the transition from the late nineteenth century […]
Podcast Interview on Rehabilitating Lochner
Kosmos Online, a project of the Institute for Humane Studies, interviewed me about my forthcoming Rehabilitating Lochner. If you’d like a preview of the book, or are just curious what I sound like, you can find the interview here. And speaking of Rehabilitating Lochner, Amazon has reduced the preorder price from $40 to $30.
The First U.S. Supreme Court Case
By David Bernstein on October 13, 2010 10:02 pm in Constitutional History, Constitutional Law, Rehabilitating Lochner
to endorse what we would now call a “substantive” interpretation of the Due Process Clause was not, as is commonly held, Dred Scott v. Sanford, but rather Bloomer v. McQuewan several years earlier. Here’s the key language: it can hardly be maintained that Congress could lawfully deprive a citizen of the use of his property […]
Yale Talk Tomorrow Evening
I’ll be speaking at Yale Law School for the Federalist Society tomorrow night at 6:10. The topic is my forthcoming book, Rehabilitating Lochner. Jack Balkin of Balkinization (and, incidentally, the Knight Professor of Constitutional Law and the First Amendment at Yale) will provide comments. It should be a lively evening.