Lochner Era - Assessment


The Lochner era has been criticized from the left for judicial activism, and—simultaneously—insufficient judicial activism, e.g. Court's failure to engage in corrections of unequal distributions of wealth and power. Criticism among conservative scholars has focused on the use of substantive due process as a vehicle for protecting rights not explicitly mentioned in the Constitution. Robert Bork has called the Court's decision in Lochner v. New York an "abomination" that "lives in the law as a symbol, indeed the quintessence of judicial usurpation of power."

The Lochner era has, however, found support among libertarian scholars who defend the Court for securing property rights and economic freedom. Richard A. Epstein has contested the widespread allegation of judicial activism, stating that "he conceptual defense of the Lochner era is much stronger on structural grounds than its manifold critics commonly suppose." Michael J. Phillips, in the book The Lochner Court, Myth and Reality, makes the case that the conventional view of the Lochner era as deeply reactionary is misguided and that the Court's "occasional exercises of economic activism were not entirely, or even mainly, bad things." In Rehabilitating Lochner, David Bernstein argues that many of the civil liberties and civil rights innovations of the post-New Deal Court actually had their origins in Lochner era cases that have been forgotten or misinterpreted.

A recent law review article analyzes the case in the context of modern constitutional law and advocates for a return to the substantive due process model established in Lochner.

The Lochner era has notably been spotlighted by a number of non-American legal authorities as a cautionary tale of judicial overreaching, including Arthur Chaskalson, Antonio Lamer and Aharon Barak.

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