Keep in mind that Lochner was essentially overruled sub silentio in Bunting v. Oregon (1917), in an opinion written by McKenna (who 12 years earlier voted with the Lochner majority; to make things even more interesting, Chief Justice White dissents in Bunting, even though he was a dissenter in Lochner). It is possible to distinguish Lochner and Bunting on the ground that the maximum hours law in Bunting applied generally to industrial workers while the law in Lochner applied to a small subset of workers (and thus represented the sort of "partial" or class legislation that was considered inconsistent with the police powers), but most commentators believed that Bunting trumped Lochner. (In his brief Frankfurter pleaded with the justices to disregard their "common understanding" of the dangers of long working hours in favor of "data that, partly, was not presented in cases like Lochner.")
BUT the decision in Bunting was NOT a repudiation of the police powers jurisprudence underlying Lochner -- the belief that liberty of contract could only be restricted if a law actually advanced the health or safety of the community; see Adams v. Tanner (1917) (striking down a Washington law prohibiting employment agents from charging workers for whomo they found jobs on the ground that "there is nothing inherently immoral or dangerous to public welfare in acting as paid representative of another to find a position in which he can earn an honest living"). Holden, Lochner, and Bunting just represented "hard cases" for some justices who believed in the jurisprudence. Obviously, this jurisprudence also drove the Court's decision in Adkins v. Children's Hospital (1923), striking down the minimum wage. THAT was the issue was came up again during the New Deal, and THAT was the decision that WAS explicitly overruled in West Coast Hotel. Howard ----- Original Message ----- From: Robert Justin Lipkin <[EMAIL PROTECTED]> Date: Thursday, October 30, 2003 8:58 am Subject: Why Wasn't Lochner (Formally) Overruled? > 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 > stateof 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 > overruledor 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 >
