Lochnerism

n. generally, a form of judicial activism in which court decisions are made based upon presumed rights not specifically addressed by existing (Constitutional) law, especially when influenced by political or personal beliefs. Subjects: English, Law, Politics, Eponym

Etymological Note: From Lochner v. New York, 198 U.S. 45 (1905), a U.S. Supreme Court case that declared unconstitutional a law that limited bakers to a maximum 10-hour work day and 60-hour work week.

Comments? | Cites | Permalink | Tell a Friend

Citations: 1978 John Hart Ely Harvard Law Review (Nov.) “The Supreme Court, 1977 Term” vol. 92, no. 1, p. 97: Even if the Court extends this mode of scrutiny to review social and enactments generally, it does not seem necessary to wave the bloody shirt of Lochnerism. 1990 Henry J. Abraham The Constitutional Bases of Political and Social Change in the United States (Apr. 23) “Of Courts, Judicial Tools, and Equal Protections” p. 324: The Court’s meddlesome approach towards state economic-proprietarian legislation, often under the guise of substantive due process, ended—only to be replaced by the still more meddlesome spirit of the double standard, largely fueled under the guise of the new equal protection. A new “Lochnerism” had come of age. 1996 Roberto Mangabeira Unger Modern Law Review (Jan. 1) “Legal Analysis as Institutional Imagination” vol. 59, no. 1, p. 14: American legal theory regularly congratulates itself on its rejection of “Lochnerism” the fetishistic acceptance and constitutional entrenchment of a particular private rights-system against all efforts to redistribute rights and resources and to regulate economic activity. 2003 Douglas T. Kendall, Timothy J. Dowling Washington Post (Sept. 19) “Judicial Throwback” p. A25: She has written that she “initially accepted the conventional wisdom” that the doctrine used in Lochner was “a myth invented by judicial activists that were up to no good,” and that “Lochnerism is the strongest pejorative known to American law.” Brown now rejects that conventional wisdom, however, and she chides conservatives for their “dread” of judicial activism. In her words, it “dawned on me that the problem may not be judicial activism. The problem may be the world view—amounting to altered political and social consciousness—out of which judges now fashion their judicial decisions.” 2005 Stuart Taylor, Jr. National Journal (May 2) “Does the President Agree With This Nominee?”: What lawyers call “Lochnerism” was the basis for dozens of decisions striking down minimum-wage, maximum-hours, and other worker-protection laws as infringing “freedom of contract”—a right that, as Bork has put it, can be found “nowhere in the Constitution.” Almost all modern constitutional scholars have rejected Lochnerism as “the quintessence of judicial usurpation of power,” in Bork’s words.

Posted 5 May 05 | Permalink | Tell a Friend