My book, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform, was published in 2011, but the reviews haven’t quite stopped coming in.
The first new review is a review essay by political science professor Howard Schweber in Law and Social Inquiry. The essay reviews my book, and two other important works on Lochner v. New York and its legacy: Howard Gillman’s book The Constitution Besieged, and a recent essay by Georgetown law professor Victoria Nourse, A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights.”
Schweber tries to show that each reviewed work is an example of “law school historiography,” which he distinguishes from the derogatory term, “law office history.” Law office history is when lawyers start with a conclusion, and then look for historical sources to support it. Law school historiography, by contrast, exists when law or political science professors engage in sound (or what could be sound) historical research, but do so with the intent of contributing to debates of interest to the legal academy.
This is an interesting distinction, and one well worth making. A “mainstream” historian, looking at the Lochner case, may very well be interested in how the case fits in to the labor movement’s longstanding goal of reducing working hours, the history of sanitary reform in New York, tenement reform, and other historical matters of great relevance to the case but of little interest to legal academics. Not surprisingly, the reviewed works in question barely touch on any of that.
Is law school historiography a good thing or a bad thing? From the legal academy’s perspective, I think it’s a good thing. From an academic perspective, law office history is bad, as it distorts history for normative purposes; “mainstream” history isn’t bad, but if it’s not of any real interest to lawyers, why should law professors be doing it? Indeed, while I’m a great advocate of hiring historians for law faculties, I think in most cases they should be able to answer the question, “why is your work of interest to lawyers?”—which doesn’t mean it necessarily has to be directly related to a current issue. But if a historian’s research is really of no interest to lawyers, he likely belongs in a history department, not on a law school faculty.
Another interesting aspect of this review essay is that the editor, Howard Erlanger, asked for comments from me and the other reviewed authors, which he then sent on to the Professor Schweber (who at this point was anonymous). I don’t know whether the other authors participated, but I think it was a great idea. While Professor Schweber didn’t accept all of my suggestions, he did accept some of them. And though I don’t fully agree with the review, I think the final version is much stronger than the original version I read. I think more journals should try this innovation.
The second review is by attorney and history grad student Nicholas Mosvick in the Texas Review of Law and Politics. Mosvick’s review focuses on my contention that Lochner itself was an outlier case in an era when the Supreme Court generally gave great deference to the legislature’s police power, but nevertheless enforced outer limits on the power. Mosvick concludes that the Court at this time was indeed dominated by constitutional moderates, not the radical laissez-fairists of historical myth. It’s a nicely written essay, well worth reading.