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Rehabilitating Lochner: Defending Individual Rights against Progressive Reform
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Rehabilitating Lochner: Defending Individual Rights against Progressive Reform

3.94  ·  Rating Details ·  33 Ratings  ·  6 Reviews

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 a

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Hardcover, 208 pages
Published May 15th 2011 by University Of Chicago Press (first published 2010)
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Lightreads
Jan 31, 2010 Lightreads rated it really liked it  ·  review of another edition
Shelves: nonfiction, history, law
Read in manuscript. This is coming out late this year, I think, though there isn't a pub date yet. Regardless, I think it's going to make a splash when it does come out, at least within the specialized pond of legal academia and intellectual history.

This book gathers and carries forward a lot of the counter-historical work done to try and roll back a lot of the Lochner v. New York hate we've all been spoon-fed in law school. He does a great job with the history of the case and the intellectual t
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H.
Nov 19, 2011 H. rated it it was amazing
Shelves: professional
If you attended law school in the past couple of decades, invariably you heard Lochner castigated as a Supreme Court decision second only to Dred Scott, and maybe Plessy v. Ferguson, in its wickedness. As Professor Bernstein ably shows in his presentation of legal historians’ new, more accurate understanding of the history of economic rights, this is less rooted in fact than in modern political battles.

In Lochner v. New York, the Supreme Court famously invalidated a state law that limited the nu
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Cassius Rovenstine
Jan 09, 2014 Cassius Rovenstine rated it it was amazing
The Due Process Clause of the Fourteenth Amendment to the United States Constitution imposes upon the states a prohibition against depriving any person of “life, liberty, or property, without due process of law.” In its 1905 decision Lochner v. New York, the Supreme Court used this clause to strike down a state law limiting the number of hours bakers could work per week. The Court reasoned that the state’s bakers were deprived of their “liberty of contract” – that is, their liberty to negotiate ...more
Sean Rosenthal
Interesting Quote:

"Progressive lawyers [before WWII] believed that judges' legalistic constitutional justifications for invalidating reform legislation [like in the case of Lochner v. New York] masked their underlying individualistic policy preferences...Judges' refusal to acknowledge their (incorrect) background assumptions so that they could be corrected by Progressive reformers justified stripping them of all discretion. [Judge Learned] Hand and [Justice] Frankfurter both wrote unsigned edito
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B
May 29, 2015 B rated it liked it  ·  review of another edition
Shelves: own
so basically thia is an erudite liberal fascism. the basic argument is that the "progreasives" opposed to Lochner did not believe in civil liberties. there's no real reason why those positions have to be linked. it's kind of maybe true that a government powerful enough to regulate bakers could also enforce segregation. I guess.

but it doesn't mean that baker shouls necessarily be unregulated.

some of the revisionism makes sense, though-about Lochner's shadow growing over time. but that's like 40
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Philip Miles
Feb 02, 2016 Philip Miles rated it really liked it
The "Legend of Lochner" has grown into more myth than reality. My con law professor from George Mason, David Bernstein, wrote this compelling counter-narrative. It's hardly a full-throated defense of the Lochner decision or the Supreme Court generally, but it does provide some of the historical context and legal nuance that is lost in the mainstream law school narrative. Why not 5 stars? Frankly, it was a little dry. I suppose that is to be expected when an academic writes a book about early ...more
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David E. Bernstein is a Professor at the George Mason University School of Law.
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