Book Description
Supreme Court Justice John Marshall Harlan (1833-1911) is best known for condemning racial segregation in his dissent from Plessy v. Ferguson in 1896, when he declared, "Our Constitution is color-blind." But in other judicial decisions—as well as in some areas of his life—Harlan's actions directly contradicted the essence of his famous statement. Similarly, Harlan was called the people's judge for favoring income tax and antitrust laws, yet he also upheld doctrines that benefited large corporations.
Examining these and other puzzles in Harlan's judicial career, Linda Przybyszewski draws on a rich array of previously neglected sources—including the verbatim transcripts of his 1897-98 lectures on constitutional law, his wife's 1915 memoirs, and a compilation of opinions, drawn up by Harlan himself, that he wanted republished. Her thoughtful examination demonstrates how Harlan inherited the traditions of paternalism, nationalism, and religious faith; how he reshaped these traditions in light of his experiences as a lawyer, political candidate, and judge; and how he justified the vision of the law he wrote.
An innovative combination of personal and judicial biography, this book makes an insightful contribution to American constitutional and intellectual history.
Book Description
Lochner v. New York (1905), which pitted a conservative activist judiciary against a reform-minded legislature, remains one of the most important and most frequently cited cases in Supreme Court history. In this concise and readable guide, Paul Kens shows us why the case remains such an important marker in the ideological battles between the free market and the regulatory state.
The Supreme Court's decision declared unconstitutional a New York State law limiting bakery workers to no more than ten hours per day or sixty hours per week. By evoking its "police power," the state hoped to eliminate the employers' abuse of these workers. But the 5-4 majority opinion, authored by Justice Rufus Peckham and renounced by Justice Oliver Wendell Holmes, cited the state's violation of due process and the "right of contract between employers and employees," which the majority believed was protected by the Fourteenth Amendment.
Critics jumped on the decision as an example of conservative juidicial activism promoting laissez-faire capitalism at the expense of progressive reform. As series editors Peter Hoffer and N.E.H. Hull note in their preface, "the case also raised a host of significant questions regarding the impetus of state legislatures to enter the workplace and regulate hours, wages, and working conditions; of the role of courts as monitors of the constitutionality of state regulation of the economy; and of the place of economic and moral theories in judicial thinking."
Kens, however, reminds us that these hotly contested ideas and principles emerged from a very real human drama involving workers, owners, legislators, lawyers, and judges. Within the crucible of an industrializing America, their story reflected the fierce competition between two powerful ideologies.
This book is part of the Landmark Law Cases and American Society series.
Customer Reviews:
Law, Liberty and the limits of Judicial Activism.......2007-09-04
"Lochner v. New York" is one of the best known and most despised US Supreme Court rulings. In Lochner, the Court voted 5 to 4 to invalidate a New York law that limited baker's working hours to 10 a day or sixty a week. The Court found that it was a "labor legislation", and therefore unconstitutional. To this day, Lochner v. New York is remembered as one of the most extremist judicial activist opinions, and gave the name to an era of conservative judicial activism, which lasted well into the New Deal.
Professor Paul Kens' "Lochner v. New York" (I shall henceforth refer to the decision as "Lochner" and to the book as "Lochner v. New York") is not the type of book I was looking for. I wanted a legal analysis of the infamous decision. Kens' book is less a legal analysis as a social, political and intellectual history, explaining the various trends that shaped the law, the case, and the decision.
Too often, Social History can be merely a list of practices, or a description of conditions that are entirely predictable to anyone with even a slight familiarity with economic and social concepts (see respectively Eric Poner's Reconstruction: America's Unfinished Revolution, 1863-1877 and John Dower's Embracing Defeat: Japan in the Wake of World War II). "Lochner v. New York" on the other hand is revealing of the working conditions and social and economic situation of the baking industry, and Kens judicially uses statistics to chronicle its evolution from the mid 19th century to the early 20th.
As Intellectual history, Kens offers an in depth look at the thought of various Lessez-faire and Social Darwinist ideologists, as well as their progressive opponents. Although Kens clearly has little sympathy for Social Darwinists, they come out quite well - Social Darwinist thought, while extremist, is not all that different from modern Libertarianism.
Kos does a good job of describing the politics surrounding the Baking hour law's passing, and the ironies with which it abounded - including the fact that one of the Law's chief backers were later to argue its unconstitutionality before the Supreme Court.
After contextualizing Lochner, Kens gets down to legal analysis. Essentially, the court applied the doctrine of "substantial due process" to declare the 10 hour law unconstitutional. The court used the 14th amendment requirement against deprivation of liberty to protect the "Sanctity of contract". The state must not deprive a person of the right to work at whatever terms he sees fit, unless it is for reasons of public health or safety, or unless the person is in need of paternalistic protection, if he is a minor or (in Victorian America) a she.
The vast majority of the Court, including Dissenter John Marshall Harlan, subscribed to this interpretation. Harlan only claimed that the Court should give the state the benefit of the doubt - if it claimed that the Law meant to protect bakers' health, then that is what it did. Only Oliver Wendell Holmes articulated a completely different vision: "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics" he famously wrote in his classic dissent. The sanctity of Contract was not in the constitution, and states should have no problem overruling it.
Kos agrees with the dissenters. He convincingly (in my view), demonstrates that the framers of 14th amendment did not intend to protect the liberty of contract, and that laissez faire Capitalism was not an antebellum ideology (although he may underestimate the extent to which laissez faire was latent in pre Civil War America - most ideologies only take shape when challenged, as laissez faire was by the increasingly powerful state of the late 19th century). Ken clearly thinks that the Court should not enforce values that are not clearly articulated in the Constitution text or its history.
Kens realizes that his position requires opposition not only to Lochner, but also to Liberal rulings such as Griswold v. Connecticut, which ensured the right of married individuals to use contraception. Kens argues that this also requires expansive, ideological reading of the Constitution and thus should be avoided.
But the very purpose of a constitution is to check the majority's power against minorities. Because times change, the means of oppression can change also. The specific clauses of the US constitution - the ones that protect against abuses that were known at the time of framing - are mostly outdated. Think of the 3rd amendment's prohibition against the stationing of soldiers at private houses. It is the more general, opaque clauses of the constitution (like the prohibition against abridging the Freedom of Speech or inflicting "Cruel and unusual punishments") that can deter present day majorities from manhandling minorities and protect the little citizen from Big Brother.
But can Lochner v. New York be distinguished from expansive Liberal rulings? Does adherence to Griswold force on us to accept Lochner?
I think there are good pragmatic reasons to say no. First, we should acknowledge that the Court's decision is right in treating suspiciously governmental intervention in the freedom of contracts. But the Court erred, in my view, in seeing Lochner as essentially a question of Liberty. I think Lochner is actually a question of wealth redistribution.
By regulating the terms in which bakeries and baker workers contract, New York improved the relative position of the workers vis a vis the owners. But government policy can most assuredly do that. The government is entitled to levy taxes in any form it wishes, whether progressively (taxing the rich more then the poor) or regressively (the other way around). It may levy tariffs on incoming goods, improving the lots of US manufacturers and worsening those of exporters. It can supply welfare benefits for the poor. The competition between the various interests is the very essence of the democratic process and should be left (within reason), to the democratic process. The time for the Court to intervene is to prevent Government from abusing citizens, not to keep the spoils out of the hands of the winners in marketplace of ideas.
Great book on Lochner and Negative Rights doctrine.......2003-11-19
This is a great book. I like long books, but this one is short and sweet. Moves the story along, and explores the fascinating background to Lochner (including the history of the baking industry and the conflicts of interest -- to give but one example, the attorney for anti-union Lochner was in fact not an attorney and in fact was a union organizer in the past.
Also discusses the Negative Rights (Substantive Due Process in law) doctrine and has a great bibliography.
The author is clearly a world expert in this field and I wish the book could have been longer. The author does not appear to be heavily biased either for or against Positive Rights (read Big) government.
Bibliography and timeline at the end of the book is great too.
Outstanding.
A terrific intro to substantive due process.......2003-05-04
As a junior political science major at UNC, I have had to read a lot of books similar to Kens's. These books focus on a particular case, be it the Skokie trial, the Tinker armband case, the Chadha legislative veto case or the Bakke affirmative action case. Anthony Lewis's Gideon's Trumpet book seems to be the first of this kind.
Kens' book is by far the best of its type that I have read. The other books of this genre I've read in this genre deal too much with the proceedings of a case. For instance, Mr. Chadha had this legal problem, he got this lawyer, they went through this legal proceeding, they had to refine their arguments, they went to the next appellate court, blah blah blah. Frankly these kinds of details are boring, and give little if any insight into the importance of a given case.
Kens's has a different approach. Instead of going into great detail about why Mr. Lochner picked a given lawyer, Kens goes into great detail of the impetuses for the passage of the law that Mr. Lochner was challenging. He talks about the social and political climate of the times, tying in influential theories of the day like Social Darwinism and laissez-faire economics. Kens clearly places the case of Lochner v. New York in its historical framework. This, it seems, is a superior method for studying an important case like this one.
I would strongly urge this book to any professor teaching a constitional law/history class. I would also strongly recommend it to a student looking for a good introduction to the study of substantive due process.
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The Fall and Rise of Freedom of Contract
F. H. Buckley
Manufacturer: Duke University Press
ProductGroup: Book
Binding: Hardcover
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ASIN: 0822323338 |
Book Description
Declared dead some twenty-five years ago, the idea of freedom of contract has enjoyed a remarkable intellectual revival. In The Fall and Rise of Freedom of Contract leading scholars in the fields of contract law and law-and-economics analyze the new interest in bargaining freedom.
The 1970s was a decade of regulatory triumphalism in North America, marked by a surge in consumer, securities, and environmental regulation. Legal scholars predicted the “death of contract” and its replacement by regulation and reliance-based theories of liability. Instead, we have witnessed the reemergence of free bargaining norms. This revival can be attributed to the rise of law-and-economics, which laid bare the intellectual failure of anticontractarian theories. Scholars in this school note that consumers are not as helpless as they have been made out to be, and that intrusive legal rules meant ostensibly to help them often leave them worse off. Contract law principles have also been very robust in areas far afield from traditional contract law, and the essays in this volume consider how free bargaining rights might reasonably be extended in tort, property, land-use planning, bankruptcy, and divorce and family law.
This book will be of particular interest to legal scholars and specialists in contract law. Economics and public policy planners will also be challenged by its novel arguments.
Contributors. Gregory S. Alexander, Margaret F. Brinig, F. H. Buckley, Robert Cooter, Steven J. Eagle, Robert C. Ellickson, Richard A. Epstein, William A. Fischel, Michael Klausner, Bruce H. Kobayashi, Geoffrey P. Miller, Timothy J. Muris, Robert H. Nelson, Eric A. Posner, Robert K. Rasmussen, Larry E. Ribstein, Roberta Romano, Paul H. Rubin, Alan Schwartz, Elizabeth S. Scott, Robert E. Scott, Michael J. Trebilcock
Customer Reviews:
Contractarian theory of the state.......2004-10-15
The book's thesis is two-fold
* Anarchy is undesirable if for no other reason than that adopting some public works will increase Pareto-efficiency (e.g. David Hume's famous illustration of the drainage of the village meadow: p. 49).
* Leviathan-like government is also undesirable. The reason is Buchanan's usual theme that if left unchecked (e.g. constitutionally), government will grow larger than is Pareto-efficient (ch. 6) due to dynamics of public choice (which are briefly touched upon on pp. 129-131 but worked out in far greater detail in The Calculus of Consent).
The topic of the appropriate role and size of government is approached from an economist's rather than a philosopher's perspective (e.g., pp. 11, 98 make this explicit). Considerations are therefore of efficiency rather than justice or philosophy. E.g., property rights are based on contract-type reasons rather than natural-law type reasons such as those argued by John Locke and Robert Nozick (pp. 76-77).
The book is persuasive in demonstrating that "even under the most favorable conditions the operation of democratic process may generate budgetary excess" and that "[d]emocracy may become its own Leviathan unless constitutional limits are imposed and enforced" (pp. 204-205). However, it does not explore where in between anarchy and Leviathan the optimal size of government lies, or even how to determine this point (he says so explicitly on p. 222). This is deliberate, in that Buchanan does not want to impose his views of his own preferred society on the rest of us (pp. 3, 210). But while this is understandable, it also leaves the book hopelessly wanting or uninteresting. The thesis that neither anarchy nor Leviathan is ideal is neither new nor controversial, and it is the where-in-between part that is interesting (on p. 227 Buchanan acknowledges that the alternative that falls in between anarchy and Leviathan must indeed be articulated). If we are expected to buy in to "ordered anarchy" (pp. 149, 169, 215, 228), it would be helpful to know what Buchanan means by "ordered".
Note: All page references are to the Collected Works edition (vol. 7).
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The Rise and Fall of Freedom of Contract
P. S. Atiyah
Manufacturer: Oxford University Press, USA
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DEATH OF CONTRACT: SECOND EDITION
ASIN: 0198255276 |
Book Description
The distinguished philosopher David Gauthier examines Rousseau's evolving notion of freedom, particularly in his later works, where he focuses on a single quest: Can freedom and the independent self be regained? Rousseau's first answer is given in Emile, where he seeks to create a self-sufficient individual, neither materially nor psychologically enslaved to others. His second answer comes in the Social Contract, where he seeks to create a citizen who identifies totally with his community, so that he experiences his dependence on it only as a dependence on himself. Implicitly recognizing the failure of these solutions, his third answer is one of the main themes of the Confessions and Reveries, where he creates himself as the man made for a kind of love that merges with another's into a self-sufficient unity.
Book Description
In these essays J. Willard Hurst shows the correlation between the conception of individual freedom and the application of law in the nineteenth-century United States—how individuals sought to use law to increase both their personal freedom and their opportunities for personal growth. These essays in jurisprudence and legal history are also a contribution to the study of social and intellectual history in the United States, to political science, and to economics as it concerns the role of public policy in our economy. The nonlawyer will find in them demonstration of how "technicalities" express deep issues of social values.
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