Rehabilitating Lochner

Defending Individual Rights against Progressive Reform

Bernstein David E.

In this timely reevaluation of an infamous Supreme Court decision, David E. Bernstein provides a compelling survey of the history and background of "Lochner v. New York". This 1905 decision invalidated state laws limiting work hours and became the leading case contending that novel economic regulations were unconstitutional. Sure to be controversial, "Rehabilitating Lochner" argues that the decision was well grounded in precedent – and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents.

Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, "Rehabilitating Lochner" argues not only that the court acted reasonably in "Lochner", but that "Lochner" and like-minded cases have been widely misunderstood and unfairly maligned ever since.

Content

Acknowledgments
Introduction

1. The Rise of Liberty of Contract
2. The Lochner Case
3. Progressive Sociological Jurisprudence
4. Sex Discrimination and Liberty of Contract
5. Liberty of Contract and Segregation Laws
6. The Decline of Liberty of Contract, and the Rise of "Civil Liberties"
7. Lochner in Modern Times

Conclusion
Notes
Index

Reviews

"An exhilarating book full of interesting new perspectives. 'Rehabilitating Lochner' will change the way people think about the transition from the late nineteenth century to the modern New Deal and Civil Rights regime. It does what good revisionist history should do: see what is familiar in new ways" – Jack M. Balkin, Yale Law School

"David Bernstein drives home powerfully and convincingly the fact that the supporters of Lochner were the biggest proponents of protecting the personal rights of African Americans, Roman Catholics, and other minorities. 'Rehabilitating Lochner' will have a profound impact on constitutional law scholarship" – William E. Nelson, New York University

"A terrific work of historical revisionism, 'Rehabilitating Lochner' brings out some attractive resonances in libertarian themes associated with the widely disparaged constitutional jurisprudence of the period from 1905 to 1937, and some discordant undertones to the Progressive themes sounded during that period. It should induce some changes in the way many students and scholars read the cases from that period" – Mark Tushnet, Harvard Law School

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