Legal Commentary

First Review of Rehabilitating Lochner

By David Bernstein

Stumbled across this at goodreads.com. I don?t know who wrote it; only that it?s one of the approximately 50 people who read the book in manuscript form, including colloquium participants at NYU and Georgetown. It?s a nice review, and the good news is that the book has undergone additional revisions/editing since it the review was written, so I expect the reviewer would like the final version even more: 

Read in manuscript. This is coming out late this year, I think, though there isn?t a pub date yet [actually, early next year]. 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 tides of the time, with the general goal of arguing that the liberty of contract crowd wasn?t just out for big business over the little guy, but was actually drawing on some long-standing natural law principles. The book then does a whirlwind through women?s rights, the early segregation cases, the early civil liberties stuff like Pierce v. Society of Sisters and forward to reproductive rights and the vilification of substantive due process. He connects up Lochner with a lot of the later civil liberties work in order to literally reverse how most of us presume the line actually runs ? from the Progressives, the anti-lochnerites.

It?s a cracking read, as these things go, hampered in places by its revisionist project ? it spends too much time on what it?s arguing against, rather than in straight history, and is thus less convincing in places. Still, totally worth it if you?re, you know, one of the slice of people who have any idea what I?ve just been talking about, and the tinier slice who actually give a damn. 

Full post as published by The Volokh Conspiracy on June 16, 2010 (boomark / email).