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Thursday, September 8, 2011

What was really going on in Lochner, that Supreme Court case the conventional wisdom tells us to revile?

Glenn Reynolds reviews David Bernstein's book "Rehabilitating Lochner: Defending Individual Rights against Progressive Reform ":
As is often the case with regulation, large bakeries didn’t mind the law governing maximum hours because they could hire multiple shifts. Small bakeries, with their smaller workforces, found compliance far more difficult. The statute also set limits on ceiling heights designed to put cellar bakeries out of business....

New York’s law, the Court held, wasn’t about health at all. Numerous exceptions and loopholes in the statute undercut that rationale, as did the absence of any evidence that baking was a particularly hazardous profession or that limiting the hours bakers worked had anything to do with the wholesomeness of bread. The majority weighed the state’s claims against scientific evidence, found them wanting, and concluded that the statute lacked sufficient justification when weighed against the freedom of contract protected by the Fourteenth Amendment’s due process clause. It was, said Justice Peckham, “a mere meddlesome interference with the rights of the individual.”
That was back when legislation had to meet the test of science — as assessed by courts. Do you want that back? Whether you do or not, it's certainly important to know what was really going on with the regulation that the Court struck down and how the understanding of a judicial opinion takes on a life of its own:
[A]n opinion that stopped a joint effort by large corporate interests and big unions to squash small businesses was somehow turned into the centerpiece of a narrative about the Supreme Court upholding big business at the expense of the little guy....
Judicial opinions are spun by interested parties. If you think you know which ones you're supposed to love/loathe, be suspicious!

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