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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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