Resurrecting lochner: A defense of unprincipled judicial activism

James Rogers, Georg Vanberg

Research output: Contribution to journalArticle

14 Citations (Scopus)

Abstract

Lochner v. New York, 198 U.S. 45 (1905), stands as one of the Supreme Court's most reviled decisions. We challenge the critical consensus against Lochner and provide a defense, albeit a contingent defense, of "unprincipled" judicial activism. To do so, we develop a game-theoretic model of judicial-legislative interaction. We use the model to compare outcomes generated in a system of legislative supremacy to outcomes generated in a system in which judicial review is provided by a legally unprincipled, activist judiciary. We show that judicial review, even when provided by an activist, politicized judiciary, can promote important constitutional values and improve legislative quality relative to a deferential judiciary. In doing so, we identify an important "passive" component to the effect that judicial review has on legislatures and on legislation. Finally, we demonstrate that the addition of other institutions and constraints on judicial behavior amplify the beneficial effects that judicial review provides to the legislative process.

Original languageEnglish
Pages (from-to)442-468
Number of pages27
JournalJournal of Law, Economics, and Organization
Volume23
Issue number2
DOIs
Publication statusPublished - Jun 2007
Externally publishedYes

Fingerprint

judiciary
Supreme Court
legislation
Activism
interaction
Judiciary
Values

ASJC Scopus subject areas

  • Law
  • Economics and Econometrics

Cite this

Resurrecting lochner : A defense of unprincipled judicial activism. / Rogers, James; Vanberg, Georg.

In: Journal of Law, Economics, and Organization, Vol. 23, No. 2, 06.2007, p. 442-468.

Research output: Contribution to journalArticle

@article{f30e0965668b4a529daba25d53486d67,
title = "Resurrecting lochner: A defense of unprincipled judicial activism",
abstract = "Lochner v. New York, 198 U.S. 45 (1905), stands as one of the Supreme Court's most reviled decisions. We challenge the critical consensus against Lochner and provide a defense, albeit a contingent defense, of {"}unprincipled{"} judicial activism. To do so, we develop a game-theoretic model of judicial-legislative interaction. We use the model to compare outcomes generated in a system of legislative supremacy to outcomes generated in a system in which judicial review is provided by a legally unprincipled, activist judiciary. We show that judicial review, even when provided by an activist, politicized judiciary, can promote important constitutional values and improve legislative quality relative to a deferential judiciary. In doing so, we identify an important {"}passive{"} component to the effect that judicial review has on legislatures and on legislation. Finally, we demonstrate that the addition of other institutions and constraints on judicial behavior amplify the beneficial effects that judicial review provides to the legislative process.",
author = "James Rogers and Georg Vanberg",
year = "2007",
month = "6",
doi = "10.1093/jleo/ewm029",
language = "English",
volume = "23",
pages = "442--468",
journal = "Journal of Law, Economics, and Organization",
issn = "8756-6222",
publisher = "Oxford University Press",
number = "2",

}

TY - JOUR

T1 - Resurrecting lochner

T2 - A defense of unprincipled judicial activism

AU - Rogers, James

AU - Vanberg, Georg

PY - 2007/6

Y1 - 2007/6

N2 - Lochner v. New York, 198 U.S. 45 (1905), stands as one of the Supreme Court's most reviled decisions. We challenge the critical consensus against Lochner and provide a defense, albeit a contingent defense, of "unprincipled" judicial activism. To do so, we develop a game-theoretic model of judicial-legislative interaction. We use the model to compare outcomes generated in a system of legislative supremacy to outcomes generated in a system in which judicial review is provided by a legally unprincipled, activist judiciary. We show that judicial review, even when provided by an activist, politicized judiciary, can promote important constitutional values and improve legislative quality relative to a deferential judiciary. In doing so, we identify an important "passive" component to the effect that judicial review has on legislatures and on legislation. Finally, we demonstrate that the addition of other institutions and constraints on judicial behavior amplify the beneficial effects that judicial review provides to the legislative process.

AB - Lochner v. New York, 198 U.S. 45 (1905), stands as one of the Supreme Court's most reviled decisions. We challenge the critical consensus against Lochner and provide a defense, albeit a contingent defense, of "unprincipled" judicial activism. To do so, we develop a game-theoretic model of judicial-legislative interaction. We use the model to compare outcomes generated in a system of legislative supremacy to outcomes generated in a system in which judicial review is provided by a legally unprincipled, activist judiciary. We show that judicial review, even when provided by an activist, politicized judiciary, can promote important constitutional values and improve legislative quality relative to a deferential judiciary. In doing so, we identify an important "passive" component to the effect that judicial review has on legislatures and on legislation. Finally, we demonstrate that the addition of other institutions and constraints on judicial behavior amplify the beneficial effects that judicial review provides to the legislative process.

UR - http://www.scopus.com/inward/record.url?scp=35648951816&partnerID=8YFLogxK

UR - http://www.scopus.com/inward/citedby.url?scp=35648951816&partnerID=8YFLogxK

U2 - 10.1093/jleo/ewm029

DO - 10.1093/jleo/ewm029

M3 - Article

AN - SCOPUS:35648951816

VL - 23

SP - 442

EP - 468

JO - Journal of Law, Economics, and Organization

JF - Journal of Law, Economics, and Organization

SN - 8756-6222

IS - 2

ER -