Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (?)

The Madison Lawyers Chapter and the University of Wisconsin Law School Federalist Society Chapters Present:

Rehabilitating Lochner:  Defending Individual Rights against
Progressive Reform (?)

A panel discussion featuring Professor David Bernstein, George Mason University School of Law and Professor Victoria Nourse, University of Wisconsin Law School.

Monday, November 14, 2011

11:30 a.m. – 1:00 p.m.

Madison Club

$15.00 (includes lunch)

CLE Pending

Please RSVP by Thursday, November 10: Andrew Cook – or 608.219.4632

Pre-Event Reading Materials: Both of the speakers have written extensively about the infamous 1905 U.S. Supreme Court decision, Lochner v. New York, in which the court invalidated a state maximum-hours law for bakery workers. In his book, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform, Prof. Bernstein argues that the decision was well grounded in precedent, and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents. Prof. Bernstein also traces the influence of Lochner through subsequent legal battles over segregation laws, sex discrimination, civil liberties, and others. According to Prof. Bernstein, Lochner and similar cases have been widely misunderstood and unfairly maligned.

Prof. Nourse takes the opposite view. In a law review article titled, Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights, 97 Calif. L. Rev. 751-99 (2009), Prof. Nourse questions the standard narrative of the Lochner era by challenging one of its most basic assumptions: that the idea of rights existing at the beginning of the twentieth century was the modern notion of right-as-trump. Prof. Nourse argues the opposite view prevailed during the first two decades of the century: rights could easily be trumped by the common welfare and police power.


About the Speakers:

Professor David Bernstein is Foundation Professor at the George Mason University School of Law in Arlington, Virginia, where he has been teaching since 1995.  He was a Visiting Professor at Georgetown University Law Center for Spring 2003 semester, at the University of Michigan School of Law for the 2005-06 academic year, and at Brooklyn Law School in Fall 2006.

Professor Bernstein is a nationally recognized expert on the Daubert v. Merrell Dow Pharmaceuticals and the admissibility of expert testimony, and he is a past chairperson of the Association of American Law Schools Evidence section.  Professor Bernstein is the coauthor of The New Wigmore: Expert Evidence (Aspen Law and Business 2004; 2nd edition 2010), and coeditor of Phantom Risk: Scientific Inference and the Law (MIT Press 1993).

Professor Bernstein is also an expert on the Lochner era” of American constitutional jurisprudence. He is the author of Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke University Press 2001), and of Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (University of Chicago Press 2011).

Professor Bernstein is also the the author of You Can’t Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (Cato Institute 2003).

In addition to his books, Professor Bernstein is the author of dozens of scholarly articles, book chapters, and think tank studies, including articles and review essays in the Yale Law Journal, Michigan Law Review (2), Northwestern University Law Review, Texas Law Review (2), Georgetown Law Journal (2), Vanderbilt Law Review, California Law Review, Washington University Law Review, North Carolina Law Review, Boston University Law Review, Law and Contemporary Problems, Journal of Supreme Court History (3), Illinois Law Review, and Iowa Law Review.  Professor Bernstein teaches Products Liability, Evidence, Constitutional Law I and II, and Expert and Scientific Evidence. He is a contributor to the popular Volokh Conspiracy blog.

Professor Victoria Nourse is the Burrus-Bascom Professor of Law at the University of Wisconsin.  She has been a visiting professor at Yale and NYU law schools and the Lamar Professor of Law at Emory University.  Professor Nourse teaches courses in legislation, statutory interpretation, constitutional history, and criminal law.   Her recent book In Reckless Hands (Norton 2008) has been praised for its “exemplary legal writing” and its commitment to tell the lost history of a home-schooled lawyer who, during the Depression, brings an unlikely cast of characters and their plight to the Supreme Court of the United States.

Professor Nourse has written over two dozen articles on Congress, statutory interpretation, constitutional history and the criminal law, published in Yale, Stanford, Penn, Texas and other law reviews. In 2009, she published 3 articles:   A Tale of Two Lochners in the California Law Review; The Lost History of Governance and Equality (with Sarah Maguire) in the Duke Law Journal; and Varieties of New Legal Realism:   Can a A New World Order Yield A New Legal Theory? (with Greg Shaffer) in the Cornell Law Review.  In 2010, she published a book review essay, Toward A Representational Theory of the Executive (with Jack Figura) in the Boston University Law Review and, in 2011, Misunderstanding Congress:  Statutory Interpretation, the Supermajoritarian Difficulty, and the Separation of Powers, in the Georgetown Law Journal.

Professor Nourse came to teaching after a series of assignments in Washington and New York. She was Senior Counsel to the Senate Judiciary Committee under the Chairmanship of then-Senator, now Vice-President, Joseph Biden where she was charged with drafting Senator Biden’s Violence Against Women Act (see Equal:  Women Reshape American Law 309-444 (Norton 2009)). Professor Nourse came to the Judiciary Committee from appellate practice in the Justice Department, where she argued cases in the D.C. Circuit and other courts of appeal. Prior to that, she served as Special Counsel to the Senate Iran-Contra committee. She began practice in New York at Paul, Weiss, Rifkind, Wharton & Garrison, after clerking for Judge Edward Weinfeld (S.D.N.Y). She is an order of the coif graduate of the University of California (Boalt) law school; and a Phi Beta Kappa graduate of Stanford University.

This entry was posted in Uncategorized. Bookmark the permalink.