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Taft thought Lochner sub silentio
overruled in Bunting. See his Atkins dissent. Thus, whatever
remained of Lochner was overruled when Atkins was overruled.
Mark A. Graber
>>> [EMAIL PROTECTED] 10/30/03 11:58AM
>>>
My colleague, Erin Daly, asks the following question: Is there any
evidence that there was a deliberate decision not to overrule
Lochner and if so, what would have been the rationale?
The more
general question is whether (and why) Lochner was not formally
overruled. Perhaps, the 1937 Revolution obviated the need to formally
overrule Lochner. Perhaps, the Court has a vested interest in being
right, or at least not being wrong.
Consider Akhil Amar's comment in a Harv. L. Rev. Forward:
"Thus, a later Court that rejects an
earlier "proposal" must admit that "we" made a mistake. This is psychologically
harder to do than to say that "they"--some other institution--erred.
Ambition is not cleanly counteracting ambition. In fact, the Court has been
rather bad at forthrightly admitting error. Many important admissions have never
occurred; others have been grudging and indirect. It is not hard to see why.
Every confession of past error invites readers to question the infallibility of
the Court, including the current Court: "You say you were wrong before--perhaps
you are wrong now?" The Court's general disinclination to confess error has
distorted the path of the law and the state of current doctrine. . .
.
Even a case as obviously overruled as Lochner was not overruled
forthrightly. Pop quiz: Which case explicitly overrules Lochner?"
I'm
sure Amar is at least partially right.
Since Lochner was so "obviously overruled," perhaps the Court was
simply reluctant to call specific and formal attention to its error.
However, not wanting to admit one is wrong might be a psychological truth about
many or even most people, but it still leaves me unsatisfied as an explanation
in this context. Why wouldn't a Court clearly reversing a period of
judicial (activist?) review not formally declare the best known opinion of that
era overruled? Perhaps, the Court, even in these revolutionary
circumstances, is loathe to formally take Lochner off the board
completely. Perhaps, the Court recognizes the cyclical aspect of
constitutional change, and thus wants to preserve Lochner's viability
for another day. However, this is implausible because surely Lochner,
whether formally overruled or not, was not viable in the future. Moreover,
if circumstances made it likely that Lochner would be viable in the
future an earlier formal overruling of the case would not stand in the way of
its resurrection. Or maybe it would.. Has the Court ever resurrected an
overruled case? If so, how significant was the case?
Both
Erin and I would welcome comments.
Bobby
Lipkin
Widener University School of
Law
Delaware
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