[Ilya Somin (guest-blogging), April 4, 2006 at 5:38pm] Trackbacks
Lochner and the Anti-Canon:

Within the legal academy, I think it's clear that Lochner is slowly losing its status as an anti-canonical case, in part for precisely the reasons David suggests. That is not to say that most law professors agree with it - they do not. But far fewer than before regard it as unquestionably wrong and as a symbol of judicial evil.

In addition to the excellent historical research by Siegan, David, and others, Lochner's reputation has also benefited from the return of free market economics to intellectual respectability over the last 30 years. In order for a decision to enter the anti-canon, it usually has to be regarded not only as unquestionably wrong from a legal point of view, but also as an endorsement of what is seen as an obviously evil policy result. That's why Plessy and Dred Scott are so widely reviled, while numerous other decisions with equally bad or worse legal reasoning have not suffered the same fate.

Obviously, most law professors (though a smaller percentage than before) still don't like the policy impact of Lochner. But since the rise of law and economics it's much tougher for them to claim that that impact was obviously negative. For example, even the con law textbook from which I teach, coauthored by four prominent liberal academics, seems to endorse the now conventional view that the maximum hours statute invalidated by Lochner was enacted for the purpose of driving small bakeries that employed poor immigrant bakers out of business in order to benefit their competitors - larger bakeries that primarily employed somewhat wealthier native-born workers. In other words, far from benefiting "the workers" at the expense of "the capitalists," this law was benefiting relatively wealthier capitalists and workers at the expense of poorer, less-established members of both classes. And that's not even to mention the impact of higher food prices on consumers, which also disproportionately harmed the poor; this part, I think, is not given sufficient attention even in the revisionist scholarship. None of this proves that the law was unconstitutional (many harmful laws are not). But it does throw a wrench into the standard class warfare morality tale that used to be the unchallenged conventional wisdom on Lochner.

That said, Lochner's reputation has changed much less (if at all) among lawyers outside the academy than within the ivy walls. That may begin to change as more attorneys educated within the last 10-15 years enter the top echelons of the profession.