I’m still kicking myself for having swallowed whole the Progressive critique dished out in law school and elsewhere over the years about the Supreme Court’s decision in Lochner v. New York (1905), frequently derided as one of the Supreme Court’s all-time worst decisions. In Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform, law professor and Volokh Conspiracy contributor David Bernstein establishes that everything we were ever taught about Lochner is wrong.
Commentary published Glenn Reynolds’s laudatory review of Bernstein’s book this past June. The fall issue of the Claremont Review of Books (subscribe here) now brings us Professor Richard Epstein’s appreciative review of the book.
Epstein writes: “David Bernstein, a professor at the George Mason University Law School, takes on the task of demonstrating that the conventional denunciation of Lochner is both inaccurate and unfair. By dint of his hard work and meticulous research, we can say, Mission Accomplished!”
In his conclusion Professor Epstein notes the timeliness of Bernstein’s withering assault on the Progressive critique of Lochner: “[Bernstein] makes good on his claim that careful legal thinkers should reaffirm the principle of liberty of contract across the board. Far from being the wild invention of unprincipled judges, that doctrine links together the classical liberal protections that span contract, property, speech, and religion. In these times of economic stress and turmoil, it would be indeed welcome if the Supreme Court acknowledged the power of the classical liberal paradigm, in order to confess, and undo, its prior errors.”
With Professor Epstein’s review we conclude our preview of the new issue of the CRB. We’ve covered a lot of territory. Thanks to the CRB editors for making it possible, and to our readers for joining me for the ride.