Thanks to Mark Graber for the reminder of what Taft said in Adkins. But what Robin Charlow says below somehow put me in mind of the astonishing treatment of stare decisis in the Planned Parenthood v. Casey ruling, in which what was wrong with Lochner was said to be not that it got anything wrong about the law in 1905, but that it simply became outdated. Might it not become "relevant" again as conditions change? Here's the Casey passage (505 U.S., at 861-62):
"The Lochner decisions were exemplified by Adkins v. Children's Hospital of D.C., 261 U.S. 525 (1923), in which this Court held it to be an infringement of constitutionally protected liberty of contract to require the employers of adult women to satisfy minimum wage standards. Fourteen years later, West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937), signalled the demise of Lochner by overruling Adkins. In the meantime, the Depression had come and, with it, the lesson that seemed unmistakable to most people by 1937, that the interpretation of contractual freedom protected in Adkins rested on fundamentally false factual assumptions about the capacity of a relatively unregulated market to satisfy minimal levels of human welfare. See West Coast Hotel Co., supra, at 399. As Justice Jackson wrote of the constitutional crisis of 1937 shortly before he came on the bench, 'The older world of laissez-faire was recognized everywhere outside the Court to be dead.' R. Jackson, The Struggle for Judicial Supremacy 85 (1941). The facts upon which the earlier case had premised a constitutional resolution of social controversy had proved to be untrue, and history's demonstration of their untruth not only justified but required the new choice of constitutional principle that West Coast Hotel announced. Of course, it was true that the Court lost something by its misperception, or its lack of prescience, and the Court-packing crisis only magnified the loss; but the clear demonstration that the facts of economic life were different from those previously assumed warranted the repudiation of the old law."
Matt *************************** Matthew J. Franck Professor and Chairman Department of Political Science Radford University P.O. Box 6945 Radford, VA 24142-6945 phone 540-831-5854 fax 540-831-6075 e-mail [EMAIL PROTECTED] www.radford.edu/~mfranck *************************** At 12:24 PM 10/30/2003 -0500, you wrote:
[EMAIL PROTECTED] 10/30/03 11:58AM The more general question is whether (and why) Lochner was not formally overruled.
If memory serves (I don't have the decisions in front of me), isn't it so that the articulated standard in Lochner was not overruled by Nebbia, but rather that the change occurred in application of the standard to the facts? That is, the Court uses and supports a rational basis test for economic substantive due process in both cases, but in Nebbia the Court defers to the state legislature on whether there was a legitimate purpose and rational means for the legislation while in Lochner it second-guesses and disagrees with the legislature on those issues. So, perhaps Nebbia didn't "overrule" the heart of Lochner--that there might be economic substantive due process, and that the test for it is rational basis. Robin Charlow Hofstra University School of Law [EMAIL PROTECTED]
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
