Search Results for ‘lochner’

Bernstein, “Rehabilitating Lochner”

I haven’t had a chance yet to look through a copy of this new book (whose publication date is today) by George Mason lawprof and Volokh Conspiracy contributor David Bernstein. But it could be a landmark, to judge from the glowing blurbs from a distinguished and very ideologically diverse group of law professors and the excellent May 2 author forum at Cato (in which I turn up in the Q-&-A). Description via Cato:

No Supreme Court decision concerning economic liberty has been more emblematic of the alleged errors of the “old,” pre-New Deal Court than Lochner v. New York, decided in 1905. Upholding contractual freedom against a New York statute that limited the hours that bakers might work, the decision has been reviled by both liberals and conservatives as an egregious example of judicial malfeasance — cited today most often for the prescient dissent of the sainted Justice Oliver Wendell Holmes. Yet the story of Lochner is not over. In a new book that examines the history and background of the case, David Bernstein argues that the decision has been widely misunderstood and unfairly maligned, that it was well grounded in precedent, and that subsequent battles over segregation laws, sex discrimination, civil liberties, and more owe much to the limited-government ideas of Lochner’s proponents.

The book’s available from Cato or the author. You can also read an author interview by Josh Blackman, as well as the book’s introduction on SSRN.

Constitutional law roundup

  • Ilya Shapiro on round II of Fisher v. University of Texas, the racial preferences case [Pope Center]
  • “Supreme Court Endorses Tribal Courts; Bad News For Corporate Defendants?” [Daniel Fisher on Sixth Amendment case U.S. v. Bryant]
  • “Is The Consumer Financial Protection Bureau Unconstitutional?” [Susan Dudley]
  • “Dueling perspectives on Lochner v. United States” [Andrew Hamm, SCOTUSBlog on Paul Kens vs. Randy Barnett debate, earlier]
  • First Amendment and commercial speech: “Crazy Law Allows ‘Discounts’ for Cash but Not ‘Surcharges’ for Credit” [Ilya Shapiro on Expressions Hair Design case]
  • Who ‘ya gonna call if you need a Third Amendment lawyer? [humor]

Supreme Court and constitutional law roundup

  • Constitutional right to teach children in a foreign language: the story of Meyer v. Nebraska, 1922 [Dave Kopel]
  • Court to address Indian law issues in three cases this term: right of counsel in tribal courts, conditions of removal from tribal to federal courts, tax authority on former tribal land [Daniel Fisher]
  • As constitutional conservatives go, Rand Paul and Ted Cruz are at odds on Lochner. Why that’s important [Roger Pilon]
  • 2013 Kiobel v. Royal Dutch Shell decision hasn’t killed off Alien Tort cases, especially not in Ninth Circuit [Julian Ku/Opinio Juris on rejection of certiorari in Doe v. Nestle, background John Bellinger/Lawfare]
  • Textbook-resale case from 2013 term, Kirtsaeng v. John Wiley & Sons, is coming back for a ruling on fee award standards in copyright cases [ArsTechnica]
  • High court will review federal court’s jurisdiction to resuscitate denied class certification [Microsoft v. Baker, Ninth Circuit ruling; Fisher]
  • “Maryland Attorney General Brian Frosh: If You Don’t Want To Be Tracked, Turn Off Your Phone” [Motherboard/Vice on stingray surveillance]

July 8 roundup

The marriage decision

In this half-hour Cato podcast, Caleb Brown interviews Roger Pilon and me on yesterday’s decision in Obergefell finding that states are constitutionally obliged to extend marriage to same-sex couples. I touch on some topics of wider interest (no, I don’t think polygamy is next; the Justices write and behave differently when it’s a really big case; the law’s treatment of churches mustn’t depend on whether their theology suits the government’s taste or not). And lots of more specialized points, such as Roberts’ weird demonization of the famed Lochner case in his dissent (“gay marriage and laissez-faire capitalism, peas in a pod!”), what I call Kennedy’s “gin and tonic” method of mixing Due Process with Equal Protection, and a remarkable story by Roger of getting Scalia to admit he doesn’t think the Court was correct when it recognized a constitutional right to send one’s kids to private and religious schools.

P.S. And here’s a video version of the same conversation:

The Jason Kuznicki paper I mention — on how legal practicalities undercut the idea of the government “getting out of marriage” in the sense of not attempting to certify who is married and who not — is here.

More links: Ilya Shapiro reacts at Cato (which had filed an amicus brief on the winning side urging an Equal Protection rationale, written by William Eskridge Jr. of Yale Law, Roger Pilon, Ilya Shapiro, and Trevor Burrus). David Bernstein has a lot to say about the continuity between Obergefell and the pro-individual-rights tradition of jurisprudence overthrown by the New Deal. Among those who approve of the outcome but would send the whole thing back for editing are Timothy Sandefur and Ilya Somin. Evan Bernick (writing before the decision) on the need for strong religious liberty protection. And David Boaz on how libertarians were there long, long before most others caught up. “The Libertarian Party endorsed gay rights with its first platform in 1972.” That’s not a misprint: 1972.

Supreme Court and constitutional law roundup

  • Polls, not chancy politics of Justice-watching, represent surest hope for gay-marriage supporters [me in New York Daily News]
  • “A reasonably good week for the Fourth Amendment” [Jonathan Blanks, Cato on Rodriguez v. U.S. on prolonged traffic stops, 6-3 SCOTUS, and from the D.C. Circuit, Janice Rogers Brown’s concurrence in Gross v. U.S., on rationale for D.C.’s gun sweeps]
  • David Bernstein, who has done so much to enrich our understanding of Lochner v. New York, hears from Mr. Lochner’s great-granddaughter [Volokh Conspiracy]
  • Armstrong v. Exceptional Child Center: Supremacy Clause doesn’t provide implied private right of action [William Baude, SCOTUSBlog; James Beck (implication for product liability); from the losing side, Steve Vladeck/Prawfs]
  • Please, SCOTUS, kill off for good the awful Calder v. Jones “effects” test for personal jurisdiction [David Post] “We’re Not in Kansas: No General Jurisdiction After Bauman” [Steven Boranian, Drug and Device Law]
  • Noah Feldman, for one, isn’t buying Toobin’s latest sanctimonious swipe at Scalia [Bloomberg View]
  • Usage of commas in famous first line of Pride and Prejudice can shed light on how to read Constitutional guarantee of right to keep and bear arms [Eugene Volokh]

June 21 roundup

  • What could go wrong? “Moving into F.B.I. turf, local police are assembling databases of DNA records” [NYTimes, earlier here, here, and here]
  • Toyota pays Orange County D.A. $16M to go away: $4M to locally influential attorney Robinson and friends, $8M to… gang prevention?! [NLJ]
  • Mt. Holly: “Supreme Court Takes Up Challenge To Disparate-Impact Discrimination Theory” [housing; Daniel Fisher, Forbes]
  • UFCW: legalizing private liquor stores to compete with our guys’ state-run Pennsylvania stores would be just like killing people [Malanga]
  • Prattling on about Lochner v. New York decision, Michael Lind appears to lack first clue as to what it actually said [David Bernstein; more on “Where’s your country, bub?” anti-libertarian flap, Max Borders (on E.J. Dionne), Will Wilkinson (“Why does Michael Lind keep asking questions that have obvious answers?”), Marlo Lewis/Open Market.]
  • The other day the editorialists of the New York Times sat down and wrote that “there is no persuasive evidence of any significant fraud or abuse” in asbestos claiming. Yes, they actually wrote that. In 2013. Paging Lester Brickman!
  • Supreme Court: feds can’t require beneficiaries of overseas grant programs to sign pledge to oppose legalizing prostitution [Ilya Shapiro] “How Calling Sex Work ‘Human Trafficking’ Hurts Women” [Cathy Reisenwitz, Sex and the State, more]
  • “The utterly frivolous and offensive complaint against the honorable Judge Edith Jones” [@andrewmgrossman on this Andrew Kloster piece, earlier here and here]

Supreme Court and constitutional law roundup

March 7 roundup

  • Thank you, Sens. Rand Paul, Ted Cruz, and Mike Lee, for getting Obama’s claim of warrantless domestic killing authority onto the media front burner — finally — through Sen. Paul’s filibuster last night. (More: Nick Gillespie, Conor Friedersdorf and background, Andrew Sullivan, Josh Blackman; Mediaite (Eric Holder sends letter, Rand Paul declares victory).
  • Pending SCOTUS case of “Adoptive Couple v. Baby Girl” is not the first Indian Child Welfare Act fiasco [Ann Althouse] More on ICWA [NYT Room for Debate]
  • Has ABA now enlisted in the crusade against Stand Your Ground self-defense laws? [ABA Journal] Reminder #371 that the Martin-Zimmerman case is not likely to hinge on Florida’s SYG law [Jacob Sullum; Jeralyn Merritt with more detail on latest developments]
  • “Transparency in Government: Finding Out How Much the Government’s Mistakes Are Costing Us” [Hans von Spakovsky, Heritage]
  • “New York, to Stem Civil-Rights Suits, Is Now Reluctant to Settle” [NY Times]
  • CPSC adopts sweeping CPSIA testing and certification rule [Nancy Nord] Should the CPSC be structured as a multi-member commission? [Commissioner Nord at Cato’s Regulation magazine, PDF, and “Conversations with Consumers“]
  • Illinois: “Small Town to Lose Its Only Sledding Hill” [Free-Range Kids]
  • “Word of the day: Mendicant” [New York Times education blog; I’m quoted in]

Judicial activism for me, but not for thee

From Glenn Reynolds’s readers:

“Rather hilariously, David Dow, the author of the Newsweek piece calling for the impeachment of the Supreme Court if they overturn the health care law, is the author of America’s Prophets: How Judicial Activism Makes America Great.” Only the right sort of judicial activism. Impeach the rest!

More on the “MarburyGate” presidential gaffe from Thom Lambert and David Bernstein.