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76 N.Y.U. L. Rev. 1383 (2001)
The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner

handle is hein.journals/nylr76 and id is 1403 raw text is: THE HISTORY OF THE
COUNTERMAJORITARIAN DIFFICULTY,
PART THREE:
THE LESSON OF LOCHNER
BARRY FRIEDMAN*
For nearly a century, the conventional wisdom has been that during the Lochner
era, Supreme Court Justices failed to adhere to constitutional norms requiring def-
erence to majoritarian decisions and inappropriately struck down laws by substitut-
ing their own views for those of legislative bodies. Recently however, revisionist
scholars have endeavored to rehabilitate Lochner-era judicial decisionmaking by
demonstrating that those decisions were based soundly on established legal princi-
ples. In this Article-the third in a five-part series-Professor Barry Friedman
calls into question both revisionist and conventional accounts of the Lochner era.
After outlining the revisionist agenda and its effort to bestow legal legitimacy
upon Lochner-era decisions, Friedman presents extensive historical evidence show-
ing that popular opinion throughout the era sai' judges as deciding controversial
cases in illegitimate ways, creating novel constitutional rights, and acting on class
biases. Revisionists also claim that Justice Holmes's famous Lochner dissent was
nove and that his arguments regarding deference to majority will were adopted
only after the fact by Progressive critics of the courts. But Friedman establishes that
there was nothing novel to Holmes's dissent; Justice Harlan said much the same in
his, and both were part of a wide movement that criticized courts for interfering
with the popular wilt By juxtaposing the hue and cr3' over Lochner-era decisions
with revisionist claims of doctrinal fidelity, Friedman concludes that the true test of
whether controversial decisions such as Lochner will be accepted as legitimate is
not simply whether such decisions are legally precedential, but whether tie wider
public perceives them to be socially legitinate, Le, appropriate as a matter of
policy given the necessities of the time
* Professor of Law, New York University School of Law. A.B., 1978, University of
Chicago; J.D., 1982, Georgetown University. I am deeply indebted to the many people
who provided help with this project: Matt Adler, David Bernstein, Marius Bolten, Steve
Burbank, Chuck Cameron, Michael Dorf, Beth Garrett, Sally Gordon, Mark Graber,
Michael Heller, Susan Herman, Thomas Hilbink, Katharine Huffman, Laura Kalman, Paul
Kens, Michael Klarman, Larry Kramer, Bill La Piana, Daryl Levinson, Henry Monaghan,
Bill Nelson, Julie Novkov, Rick Pildes, Robert Post, Robert Pushaw, Jim Rogers, Gary
Rowe, Larry Sager, Melvin Urofsky, G. Edward White, Steve Winter, and Lewis Yelin all
read one draft-or more-and offered extremely valuable comments. Special mention is
due Howard Gillman, whose assistance went far beyond the call of duty. I am grateful, as
always, to my research assistants-Liz Blackwell, Rebecca Hale, Anna Johnson, Steve
McNutt, Jack Preis, Jeremy Saks, and Rob Strayer-for their commitment. Lisa Mihajlovic
offered untiring support. Once again, the Vanderbilt University Law School librarians out-
did themselves, as did Jay Shuman, at New York University School of Law. The research
was supported by grants from the Vanderbilt Research Council, several of the Dean's re-
search funds at Vanderbilt Law School, as well as the Filomen D'Agostino and Max E.
Greenberg Research Fund at New York University. The project improved because of
comments received during presentations at the Law and Society Annual Meeting in To-
ronto in 1995, a workshop at Brooklyn Law School in 1999, a workshop at Fordham Law
1383

Imaged with the Permission of N.Y.U. Law Review

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