George Thomas, Keith Whittington, and Ted McAllister evaluate David Bernstein’s important new book Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform.
When the Legend becomes Fact
More than a hundred years after it was decided Lochner v. New York, the 1905 bakeshop case that struck down a New York maxim-hours law for bakers, continues to provoke. Jurists point to it as the exemplar of illegitimate judicial lawmaking, as does the occasional Senator at judicial confirmation hearings. Even constitutional scholars, who by now should know better, cannot seem to resist staid criticisms of the opinion that are, more often than not, wide of the mark.