Legal Commentary

The Demise of Progressive Legal History

By David Bernstein

I?m not one to generally praise law reviews, but the latest issue of the George Washington Law Review contains lots of interesting stuff.

I wanted to call particular attention to G. Edward White?s review of Phil Hamburger?s Law and Judicial Duty. White, one of my favorite legal historians, treats readers to an excellent discussion of Hamburger?s fine book, but he also locates the book in a growing literature of works that counter the standard Progressive interpretations of legal history. The most prominent examples of the corpus of counter-Progressive legal history are works of Lochner revisionism, but the Progressive understanding, once ubiquitous in American law schools and history departments, is under much broader assault. White concludes: ?Historiographic orthodoxies are typically of very long duration. It has taken nearly a century for Progressive orthodoxy to crumble. But it is surely crumbling?perhaps on the verge of disintegration?in American legal and constitutional history.?

Added bonus: White states in a footnote that ?the best general survey of the literature of Lochner revisionism is David E. Bernstein, Rehabilitating Lochner (forthcoming 2011).?

And speaking of Rehabilitating Lochner, the book is now available for preorder at Amazon.

UPDATE: Mark DeGirolami has an interesting (and critical) take on White?s essay.

Full post as published by The Volokh Conspiracy on October 08, 2010 (boomark / email).