Best,
Louise
At 11:24 AM 10/30/03, 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
