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11.14.11 | Federalist Society: Defending Individual Rights Against Progressive Reform
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Venue:  Madison Club - Madison, WI
Event Time:  11:30AM
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Bernstein, David
Nourse, Victoria
11.14.11 | Federalist Society: Defending Individual Rights Against Progressive Reform
Duration: [01:04:44]
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On November 14, 2011 the Madison chapter of the Federalist Society presented Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform.  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 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 right 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.