The main additional factor is that "the Lochner era" was invented LATER. As best I can tell, the case was not viewed as all THAT special or distinctive at the time it was handed down. This is just another way of saying that the process by which legal commentators construct the "canon" (and "anti-canon") of constitutional law is a distinct political-legal activity.
My best guess is that Lochner became "Lochner" around the time that Frankfurter and Company were (uh) canonizing Holmes. I think Gerald Rosenberg has done some work on this, as well as on how Brown v. Board of Ed eventually came to represent what it now represents (despite the fact that, at the time, it was largely pilloried by the elite law professorate). Howard ----- Original Message ----- From: Robert Justin Lipkin <[EMAIL PROTECTED]> Date: Friday, October 31, 2003 8:42 am Subject: Re: Why Wasn't Lochner (Formally) Overruled? > Not to quibble. (Well yes maybe to quibble a little.) The question, > as I understood it, was never whether caselaw exists which overulled > Lochner. Clearly there is. Nor was the question whether there were cases > containing language which stood for the overruling of Lochner.(However, if > the sole reference in Darby is "more than under the Fourteenth Amendment," > this preserves, for me, a thin ray of light against the conclusion that > this language clearly overrules Lochner, though I won't argue this now.) > Nor am I insisting that overruling a case requires using its name, though > that surely helps. As I understand the question, when a case, such as > Lochner, represents a particular era of Suprme Court jurisprudence, why > wouldn't its repudiation be discssed in greater detail than the language > Jack cites in his post? > > I'm certainly not suggesting that a discussion of this sort is a > requirment of overruling a case. Rather,I can think of some possibilities > why the Court might intentionally shy away from naming Lochner in its > repudiation of the principldss for which the case stood. But it is > inconceivable, to me, that the language Jack cites was thought sufficient > to overrule Lochner, and that no other explanation was operative. Unless, > of course, Darby's language is not itself the overruling of Lochner but > rather the recognition of the fait accompli of Lochner's earlier > repudiation. (I stress "to me" because I'm perfectly willing to accept > that others might think no other explanation is needed.) For those who > share my bewilderment, what additional factors might explain the Court's > lack of fanfare in overruling Lochner? > > > Bobby Lipkin > Widener Univesity School of Law > Delaware >
