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The Right to Earn a Living.

01 Jan 1970-Vol. 29, pp 37-40
About: The article was published on 1970-01-01 and is currently open access. It has received 7 citations till now.
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23 Oct 2012
TL;DR: Bernstein this article provides a compelling survey of the history and background of Lochner v. New York, which invalidated a state law limiting work hours and became the leading precedent contending that novel economic regulations were unconstitutional.
Abstract: In this timely reevaluation of an infamous Supreme Court decision, David E. Bernstein provides a compelling survey of the history and background of Lochner v. New York. This 1905 decision invalidated a state law limiting work hours and became the leading precedent contending that novel economic regulations were unconstitutional. Sure to be controversial, "Rehabilitating Lochner" argues that despite the decision's reputation, it was well-grounded in precedent - and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents. Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, "Rehabilitating Lochner" argues not only that the court acted reasonably in Lochner, but that Lochner and like-minded cases have been widely misunderstood and unfairly maligned ever since.

39 citations

Posted Content
TL;DR: Bernstein this paper argues that the history of the Lochner line of cases is inaccurate, unfair, and anachronistic, and that Lochner should be removed from the anti-canon and treated like a normal, albeit controversial, case.
Abstract: This paper is the Introduction to David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011), which will be officially released in May. The Introduction makes the following points, which are elaborated upon and defended in the body of the book. The standard account of the rise, fall, and influence of the liberty of contract doctrine is inaccurate, unfair, and anachronistic. Lochner has been treated as a unique example of constitutional pathology to serve the felt rhetorical needs of advocates for various theories of constitutional law, not because the decision itself was so extraordinary, its consequences so bad, or its anti-statist presumptions so clearly expelled from modern constitutional law. The liberty of contract doctrine was grounded in precedent and the venerable natural rights tradition. Progressive jurists who opposed liberty of contract had an extreme pro-government ideology, and typically opposed any robust constitutional protection of individual or minority rights. The Supreme Court’s liberty of contract advocates, by contrast, were sufficiently committed to the notion of inherent limits on government power and a limited police power that they voted for liberal results across a wide range of individual and civil rights cases. The Lochner line of cases pioneered the protection of the right of women to compete with men for employment free from sex-based regulations; the right of African Americans to exercise liberty and property rights free from Jim Crow legislation; and civil liberties against the states ranging from freedom of expression to the right to choose a private school education for one’s children. Many post-New Deal liberal developments in Fourteenth Amendment jurisprudence can trace their origins to Lochner and its progeny. More generally, modern Fourteenth Amendment jurisprudence owes at least as much to the liberty of contract proponents’ libertarian values as to its pro-regulation Progressive opponents. The history of the liberty of contract doctrine should be assessed more objectively and in line with modern sensibilities, and Lochner should be removed from the anti-canon and treated like a normal, albeit controversial, case.

6 citations

Posted Content
TL;DR: The mismatch between the prevailing sites of productive economic activity and the location of regulation and redistribution has subverted the values conventionally associated with federalism as mentioned in this paper, leading to increased political polarization.
Abstract: The United States has long been an urban country, but it is fast becoming a metropolitan one. Population and economic activity are now concentrated in cities and their surrounding regions. The largest twenty of these city-regions accounts for almost fifty-two percent of total U.S. GDP. This “metropolitan revolution” represents a fundamental challenge to our current federalism. The old federalism assumed that capital and labor are fully mobile and that sub-national governments — in this case, states — will engage in competitive efforts to attract desirable investment while the federal government will assume the bulk of redistributive spending. The new federalism rejects the notion that economic growth can be attributed to interstate competition or that only central governments can effectively engage in social welfare redistribution. As economic activity becomes concentrated in cities, those cities become capable of engaging in forms of regulation and redistribution that standard models of fiscal federalism had deemed impossible. Our current state-based federalism, however, fails to appropriately align capabilities with responsibilities. Instead of empowering cities, states are increasingly seeking to defund, defang, and delegitimize them. The mismatch between the prevailing sites of productive economic activity and the location of regulation and redistribution has subverted the values conventionally associated with federalism. State power is being deployed to undermine accountability, limit experimentation, and prevent the effective exercise of local self-government. One consequence of the gap between state and city power is increased political polarization. Another consequence may be an institutional restructuring that better reflects the new geography of production and population.

6 citations

Journal ArticleDOI
TL;DR: A brief survey of the organisation in the United Kingdom of existing facilities for rehabilitation, training and sheltered employment precedes a description of five years work in a voluntary, non-profit making organisation (Bristol Industrial Therapy Organisation) as mentioned in this paper.
Abstract: A brief survey of the organisation in the United Kingdom of existing facilities for rehabilitation, training and sheltered employment precedes a description of five years work in a voluntary, non-profit making organisation (Bristol Industrial Therapy Organisation (Bristol) Limited). The classification of patients referred during this period is reported and the outcome of attendance. The success and failure, according to sources of referral and diagnosis, is commented on and a two-year follow-up is given. A summary of outcome for the first eleven years of the Organisation is recorded. — The present state of industrial therapy is discussed and the need for research and for workers in the field to become more highly specialised is stressed. — The change in clientele is noted with an increase in referral of patients suffering from subnormality. A likely increase in persons with personality disorders is anticipated. — The different methods of approach by I. T. O. to the problem of reemployment are enumerated and the applicability of the I. T. O. principle to other groups, for example, ex-prisoners, prisoners, physically handicapped, etc. is suggested. The strength accruing to the Organisation from close links with the hospital and community is noted and the Organisations view that there should not be separate rehabilitation services for the psychiatrically ill and for the physically ill is stated. The continuation of voluntary organisations such as I. T. O. is considered desirable but not in the continuous provision of services which are clearly the responsibility of statutory authorities. These authorities must give fresh thought to the problem of providing services appropriate to modern needs.

3 citations