Resurrecting lochner: A defense of unprincipled judicial activism

James R. Rogers, Georg Vanberg

Research output: Contribution to journalArticle

14 Citations (Scopus)


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
Issue number2
Publication statusPublished - 1 Jun 2007


ASJC Scopus subject areas

  • Economics and Econometrics
  • Organizational Behavior and Human Resource Management
  • Law

Cite this