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Lochner v. New York Paper:

SSRN has posted my Washington U. Law Quarterly article Lochner v. New York: A Centennial Retrospective. Immodestly, I'll claim this as the most comprehensive look at the Lochner case to date. Among other things, the article makes two particular contributions to the literature: First, it establishes without a doubt that the sixty-hours law at issue in Lochner was in signficant part, the product of a special interest struggle among established bakers, new immigrant bakers, large unionized and mechanized bakeries, and small, old-fashioned bakeries. Second, it is the only scholarly work to discuss how Lochner v. New York, which as late as the 1950s had no special significance in American jurisprudence, had by the 1980s become an incredibly potent (and negative) symbol. Did you know, for example, that the first mention of the so-called "Lochner era" in a law review was not until 1970, and the term was rarely used until the late 1970s?

Anyway, here's the abstract:

This Article discusses two aspects of Lochner's history that have not yet been adequately addressed by the scholarly literature on the case.

Part I of the Article discusses the historical background of the Lochner case. The Article pays particular attention to the competing interest group pressures that led to the passage of the sixty-hour law at issue; the jurisprudential traditions that the parties appealed to in their arguments to the Court; the somewhat anomalous nature of the Court's invalidation of the law; and how to understand the Court's opinion on its own terms, shorn of the baggage of decades of careless and questionable historiography. In short, Part I places the Lochner opinion firmly in its historical context.

Part II of this Article explains how Lochner, which existed in relative obscurity for decades, became a leading anti-canonical case. As discussed in Part II, Lochner was initially famous only because of Oliver Wendell Holmes's much-cited dissent. The Lochner cases modern notoriety, however, arose largely because the post-New Deal Supreme Court continued to treat the Lochnerian cases of Meyer v. Nebraska and Pierce v. Society of Sisters as sound precedent. Meyer, in particular, eventually became an important basis for the Warren and Burger Courts' substantive due process jurisprudence in the landmark cases of Griswold and Roe v. Wade. Critics of those opinions attacked the Court for following in Lochner's footsteps, and, with some significant help from Laurence Tribe's 1978 constitutional law treatise, Lochner came to represent an entire era and style of jurisprudence.

Recently, the ghost of Lochner has been kept very much alive by Justices Kennedy, O'Connor, and Souter, each of whom has praised Meyer and Pierce as engaging in appropriately aggressive due process review of police power regulations, while straining to distinguish those opinions from Lochner. Meanwhile, a revival of limited government ideology on the legal right, most notably in the Rehnquist Court's federalism opinions has raised (perhaps exaggerated) fears on the legal left that the conservatives seek to return, in spirit if not in letter, to the discredited jurisprudence of the Lochner era. Yet virtually no one, on either the right or the left, challenges what may be the strongest evidence of Lochner's influence on modern jurisprudence: the Supreme Court's use of the Fourteenth Amendment's Due Process Clause to protect both enumerated and unenumerated individual rights against the states.

some guest:
We get it: Lochner = good. Article looks fascinating.
7.20.2006 5:46pm
Steve Donohue (mail) (www):
Why did you finish the paper after I had to write mine thi semester? Sheesh...
7.20.2006 6:49pm
SP (mail):
some guest's comment is a good example of an all too typical comment at VC these days. A verbal jab, devoid of any intellectual substance. Why did you even bother to write that? To what purpose?
7.20.2006 6:56pm
Gordo:
There is still one basic question, unanswered in the abstract (and perhaps in the full article?).

Was Lochner correctly decided in 1905?

If so, then there are an awful lot of Supreme Court decisions decided wrongly since, and there is an awful lot of federal legislation that violates substantive due process protections of the 14th amendment.

I was aware of the whole economic fracas regarding the big vs. small bakeries in New York around the turn of the century, but I wasn't aware that Lochner wasn't a whipping boy decision back during the New Deal and World War II eras.

Also, doesn't the famous "Footnote 4" of the Carolene Products decision fit in this whole puzzle somewhere too?
7.20.2006 7:03pm
DavidBernstein (mail):
Anyone who wants to comment on content of the paper, or even the abstract is welcome to. Anyone who wants to act like a third-grader can do so on his own bandwith.
7.20.2006 10:12pm
MnZ (mail):
Interesting article. It is interesting that many supporters of a single-payer health system also support decisions like Roe vs. Wade.

Wouldn't single-payer health system would almost certainly run afoul of substantive due process?
7.20.2006 11:39pm
You Can't Say That!:
Please show a little integrity.
7.21.2006 12:41am
SLS 1L:
MnZ - Single-payer could only even potentially run afoul of SDP if people were forbidden from purchasing superior coverage outside the single-payer system. No American single-payer proposal I'm aware of advocates any such thing.
7.21.2006 12:45am
fdr's role?:
Bernstein,

You probably address it in the paper but I didn't see it here or the abstract and so I hope you do not mind me asking -- did not FDR essentially argue that Lochner and its progeny were anti-canonical? Sounds like you made a case that the academy took a while to condemn the case while the President and Congress in the late 1930s were pretty anti (but the latter not anti enough to support the Court packing plan).

Bernstein:
It's not that FDR & co. liked Lochner, it's just that Lochner was just considered one of many objectionable cases, with no special import. No talk in those days of "Lochnerism" or "Lochner era" or "Lochnerizing"; that's all modern. Simmilarly, the academy never liked Lochner, but rarely treated it as an especially significant case, except in its immediate aftermath. As late as 1962, an article on economic substantive due process barely mentions Lochner.
7.21.2006 12:59am
Ian Samuel (mail) (www):
Right. reading the works of Felix Frankfurter around the time, he does not mention Lochner by name except as a peg to mention the Holmes dissent. He generally speaks in much broader strokes about the problems with Lochner-esque reasoning but speaking about a "Lochner era" as such is not something he does. Frankfurter was representative in this way.

I don't think it's accurate that "no one" challenges SDP. There are a great many critics of it. They just don't happen to hold a majority on the court. I think this is good; you may think it is bad. At any rate, the argument cannot be resolved by simply pointing to Lochner (or Dred Scott), saying "this is substantive due process," and concluding the argument. Particular incarnations of substantive due process may be good even as others are bad.
7.21.2006 10:24am
Dan28 (mail):
I don't understand what makes Pierce or Meyer "Lochnerian" cases. Are they getting that label simply because they involve Substantive Due Process? I have never heard anyone criticize Lochner simply because it invokes SDP - virtually everyone believes that SDP exists, and is important. The criticism of Lochner rests on the idea that SDP should not be extended into the economic sphere, where it would interfere with public health (Harlan's dissent) or amount to a decree demanding the enforcement of laissez-faire economics (Holmes' dissent).

The difference between using SDP to rule that virtually all labor laws are unconsititutional, and using SDP to rule that laws banning foreign language instruction or private schools are unconsitutional, seem pretty obvious. I don't see why anyone would have to "strain to distinguish those opinions from Lochner."
7.21.2006 11:09am
DavidBernstein (mail):
Dan, I invited you to read the article, but, in short, Meyer explicitly relied on Lochner and allied cases to support its holding. No Lochner (and similar cases),no Meyer. No Meyer, no Pierce.
7.21.2006 11:22am
Bill N:
David,
Great article. I was particularly interested in the positive response from so much of the legal community and the press. The press at the time (1905-06) was primarily complaining about failures in the administration of justice (long delays, technicalities overthrowing justice, etc), as well as court battles over municipal franchises. Not until about 1910-1912 did you see newspapers outside of the progressive/labor press begin to see the courts as an obstacle to the progressive agenda. This may have had more to do with the AFL's more explicit role in partisan politics after 1906, and in particular during the campaigns against "injunction judge" Taft in 1908 and 1912. This helps reinforce some of my conclusions that the "court as obstacle to progressive agenda" argument was not a primary concern of most Americans during the period.
7.21.2006 2:39pm
Cornellian (mail):
I doubt I'll end up reading the article but that point about Lochner being largely forgotten for decades only to be revived and turned into a symbol of a particular judicial era is interesting indeed. I think most people assume that Lochner's notoriety would have dated from the subsequent Supreme Court decisions that ran all the way in the opposite direction culminating in Wickard v. Filburn. It would be interesting to see what was behind the revival. Oh what the heck maybe I will read the article.
7.21.2006 4:36pm