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Journal ArticleDOI

Economic Due Process and the Supreme Court: An Exhumation and Reburial

01 Jan 1962-Supreme Court Review (The University of Chicago Press)-Vol. 1962, Iss: 1, pp 3
About: This article is published in Supreme Court Review.The article was published on 1962-01-01. It has received 33 citations till now. The article focuses on the topics: Supreme court.
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TL;DR: For example, the authors argues that contemporary critics of First Amendment Lochnerism tend to overstate the phenomenon's novelty and underestimate the difficulty of curing judicial civil libertarianism of its “Lochnerian” tendencies.
Abstract: From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative “conscience clauses” are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties about such “First Amendment Lochnerism” date back to the federal judiciary’s initial turn to robust protection of free exercise and free expression in the 1930s and 1940s. Then, it was those members of the Supreme Court perceived as most liberal who struck down economic regulations on First Amendment grounds. They did so in a series of contentious cases involving the Jehovah’s Witnesses, who challenged local peddling taxes as burdening a central aspect of their missionary faith – the mass sale and distribution of religious literature. In dissent, Justice Robert Jackson warned that the new “liberal” majority’s expansive conception of First Amendment enforcement repeated the mistakes of the “liberty of contract” jurisprudence of the Lochner era, undermined democratic regulation of the economy, and imposed the beliefs of some on “the rights of others.” Jackson’s warnings sound strikingly similar to contemporary critiques of First Amendment Lochnerism. Yet today’s critics treat recent case law as a novel, economically libertarian cooption of an otherwise progressive project: the judicial enforcement of civil liberties. In contrast, the Justices and scholars who objected to the 1940s peddling tax decisions perceived an inextricable relationship between judicial civil libertarianism and judicial interference with economic regulation. By recovering the origins and sketching the aftermath of the peddling tax debate, this Article argues that contemporary critics of First Amendment Lochnerism tend to overstate the phenomenon’s novelty and underestimate the difficulty of curing judicial civil libertarianism of its “Lochnerian” tendencies. This argument, in turn, counsels a reorientation of contemporary advocacy. Rather than defending an illusory tradition of economically neutral First Amendment enforcement, critics of today’s First Amendment Lochnerism might more accurately and persuasively position themselves as reformers. They could then set to work breaking with a legal tradition long insensitive to the deleterious effects of judicial civil libertarianism on political regulation of the economy.

18 citations

Journal ArticleDOI
TL;DR: In this paper, a game-theoretic model of judicial-legislative interaction is developed to compare outcomes generated in a system of legislative supremacy to outcomes generated by a system in which judicial review is provided by a legally unprincipled, activist judiciary.
Abstract: Lochner v. New York, 198 U.S. 45 (1905), stands as one of the Supreme Court's most reviled decisions. We challenge the critical consensus against Lochner and provide a defense, albeit a contingent defense, of “unprincipled” judicial activism. To do so, we develop a game-theoretic model of judicial-legislative interaction. We use the model to compare outcomes generated in a system of legislative supremacy to outcomes generated in a system in which judicial review is provided by a legally unprincipled, activist judiciary. We show that judicial review, even when provided by an activist, politicized judiciary, can promote important constitutional values and improve legislative quality relative to a deferential judiciary. In doing so, we identify an important “passive” component to the effect that judicial review has on legislatures and on legislation. Finally, we demonstrate that the addition of other institutions and constraints on judicial behavior amplify the beneficial effects that judicial review provides to the legislative process.

17 citations

Book
14 Mar 2019
TL;DR: The Nature of Constitutional Rights examines what must be true about constitutional rights for them to be identified and enforced via "strict scrutiny" and other, similar, judge-crafted tests as mentioned in this paper.
Abstract: What does it mean to have a constitutional right in an era in which most rights must yield to 'compelling governmental interests'? After recounting the little-known history of the invention of the compelling-interest formula during the 1960s, The Nature of Constitutional Rights examines what must be true about constitutional rights for them to be identified and enforced via 'strict scrutiny' and other, similar, judge-crafted tests. The book's answers not only enrich philosophical understanding of the concept of a 'right', but also produce important practical payoffs. Its insights should affect how courts decide cases and how citizens should think about the judicial role. Contributing to the conversation between originalists and legal realists, Richard H. Fallon, Jr explains what constitutional rights are, what courts must do to identify them, and why the protections that they afford are more limited than most people think.

16 citations

01 Jan 1989
TL;DR: In this article, the authors present an overview of the history of the British and American LABOR system and their role in the English common law, including the role of the interest group theory and the market failure model.
Abstract: INTRODUCTION ............................................... ix I. RESEARCH ON BRITISH AND AMERICAN LABOR L E G I S L A T I O N .................................. xiii II. AN OUTLINE OF THE S T U D Y ...........................xvxi 1. THEORIES OF ECONOMIC REGULATION ...................... 1 I. THE MARKET FAILURE MODEL ............................ 3 A. REGULATION IN THE LABOR M A R K E T ................. 5 B. THE LIBERTY AND VIRTUE C O M P O N E N T ................ 14 II. THE INTEREST GROUP M O D E L .............................. 29 A. THE DEVELOPMENT OF THE INTEREST GROUP THEORY 3 2 B. THE RENT-SEEKING COMPONENT .................... 4 7 C. REGULATION AND THE DIFFERENT BRANCHES OF GOVERNMENT.................................... 5 3 D. REGULATION IN THE LABOR M A R K E T ................6 0 III. THE INTERACTION OF THE M O D E L S ....................... 68 2. RESTRAINT OF TRADE IN THE ENGLISH COMMON LAW, 1500-1628 77 I . THE ECONOMIC AND LEGAL BACKGROUND TO RESTRAINT OF T R A D E ..................................8 5 A. THE G U I L D S ...................................... 8 6 B. REGULATION OF GUILD ACTIONS PRIOR TO THE 1560S 9 5 C. THE STATUTE OF ARTIFICERS AND THE DECLINE OF THE G U I L D S ............................106

14 citations

Journal ArticleDOI
TL;DR: We should be careful to avoid the pitfall of Lochner v. New York which has been described by Professor Tribe as discussed by the authors as being “not in judicial intervention to protect 'liberty' but in a misguided understanding of what liberty actually required in the industrial age.
Abstract: We should be careful to avoid the pitfall of Lochner v. New York which has been described by Professor Tribe . . . as being “not in judicial intervention to protect ‘liberty’ but in a misguided understanding of what liberty actually required in the industrial age.” The Lochner era gave rise to serious questions about judicial review and the relationship between the court and the legislature. . . .

14 citations


Additional excerpts

  • ..., MEuoJoN PusEr, TH SuPM COURT Ciuss (Macmillan 1937). 6 8 Felix Frankfurter, Mr Justice Roberts, 104 U. PA. L. REv. 311 (1955). 69 Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HIv. L. REV. 620 (1994). 7 0 Barry Friedman, The History of the Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U....

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  • ..., MEuoJoN PusEr, TH SuPM COURT Ciuss (Macmillan 1937). 6 8 Felix Frankfurter, Mr Justice Roberts, 104 U. PA. L. REv. 311 (1955). 69 Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HIv....

    [...]

  • ..., MEuoJoN PusEr, TH SuPM COURT Ciuss (Macmillan 1937). 6 8 Felix Frankfurter, Mr Justice Roberts, 104 U. PA. L. REv. 311 (1955). 69 Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HIv. L. REV. 620 (1994). 7 0 Barry Friedman, The History of the Countermajoritarian Difficulty, Part Four: Law's Politics, 148 U. PA. L. RE. 971. 976 (2000). 71 McCloskey, supra note 54, at 60....

    [...]