Vol. 1, No. 3 (May, 1991) Pp. 63-64

JUDICIAL POWER AND REFORM POLITICS: THE ANATOMY OF LOCHNER V. NEW YORK by Paul Kens (University Press of Kansas, 1990).

Reviewed by Rogers M. Smith, Department of Political Science, Yale University

For frequent teachers of constitutional law courses, many cases come to be like close relatives, at times tiresomely familiar, at others intriguing, indeed deeply affecting. I suspect most of us therefore relish the genre in which this work falls, book-length treatments of famous cases. At a minimum we pick up fascinating stories about the human origins of landmark legal doctrines with which we can entertain ourselves and our students. At best, as in Anthony Lewis' eloquent GIDEON'S TRUMPET or Donald Fehrenbacher's magisterial DRED SCOTT CASE, such books truly illuminate the political struggles and processes, the intellectual traditions, and the legal choices that make great cases significant.

Lochner v. New York is certainly a monumental enough decision to merit the latter sort of treatment; but I do not mean to devalue Paul Kens' brief and delightful book, JUDICIAL POWER AND REFORM POLITICS, when I rank it much closer to the other end of the spectrum. If you are looking for a synthesis of recent scholarship on the legal and intellectual roots of the decision that has become synonymous with judicial hostility to progressive economic legislation, you still have to wait. Kens announces that LOCHNER expressed -- guess what! -- an ideology of laissez faire social Darwinism, and his citations are largely to the famed older works, by Richard Hofstadter, Robert McCloskey, Clyde Jacobs, Benjamin Twiss, Carl Swisher and others, that made this account conventional if not mandatory by 1960. He makes only a couple of fleeting references (and not to Eric Foner) acknowledging the post-1970 explorations of "free labor ideology" and "republicanism" that have enabled political historians like Michael Les Benedict and legal historians like William Forbath to provide richer accounts of the economic ideas expressed in the post-war amendments, as well as their late 19th and early 20th century judicial transformations. He does not refer at all to Critical Legal Studies and the contributions Morton Horwitz, Duncan Kennedy, and their associates have made to characterizing liberal legal ideology during those years. Kens is also not attuned to recent work by intellectual historians on social Darwinism, such as Robert Bannister's controversial attacks on the very Hofstadterian orthodoxy Kens invokes, nor the broader work on Progressivism by scholars such as Daniel Rodgers and James Kloppenberg, who have provided richer portraits of the intellectual and political milieu out of which reform emerged. In his final chapter he takes quick, dismissive note of contemporary libertarian lawyers like Bernard Siegan and Richard Epstein, who are trying to revive Lochnerian outlooks, but he does not treat their historical claims seriously (admittedly, they often don't either). In sum, as intellectual and doctrinal history, this is, sadly, mostly stale bread.

Kens nonetheless amply rewards the rather light demands he places on the reader with a variety of tasty confections. For example, his portrait of the baking industry for which the New York legislature

Page 64 follows

regulated graphically reveals the spread of sleazy tenement cellar operations that motivated the law. Kens also reports the startling fact that the New York Bakeshop Act was passed and later amended via unanimous votes in a hardly radical, rural dominated state House and Senate; and he convincingly traces this massive legislative support not to the influence of labor so much as to temporarily ascendant middle class reformers aided by high-profile journalistic muckraking. Best of all, he tells the remarkable story of hustling Henry Weismann, who campaigned for the Bakeshop Act as an ambitious young labor activist; was dumped from his union post after allegedly dipping into the till, switched sides, transforming himself into a spokesman for the bakery employers' association; and then, by claiming to have read law in his spare time, managed to wind up arguing before the United States Supreme Court on behalf of Joseph Lochner's challenge to the law Weismann had formerly advocated -- even though Weismann was never admitted to any state bar in his life. In the end, Weismann's remarkable antics probably have limited import for how we should appraise LOCHNER, but they're sure to prove handy if discussions need spicing up.

In his last full chapter, Kens takes on charges old and new that the LOCHNER era was not such a much in preventing regulatory legislation, and he makes a reasonable, informative case. His epilogue strums the familiar chords of lament about undemocratic judicial activism then and now, deploring the modern Court's privacy jurisprudence along with conservative calls for renewed laissez faire Lochnerism. The overall result is a book that is useful and pleasurable to read and a great asset in teaching, which will likely become a standard citation on the LOCHNER case. It is not likely, however, to affect scholarly thinking about that decision and all it stands for in any novel or distinctive way.


Copyright 1991