Learning from Lochner: Critical Theory from the Corpse of the Lochner Zombie

In modern legal and political debates, Lochner v. New York is regularly praised by libertarians for its rejection of economic regulation. To understand the libertarian impulse for revitalizing the Lochner decision, we must examine the foundations Lochner was decided on and the cases and laws that led to the end of the Lochner Era. The National Labor Relations Act of 1935 (Wagner Act) was passed as a counter-revolution to the anti-regulatory framework of the Lochner Era, and it found its legal accompaniment in the West Coast Hotel and NLRB v. Jones decisions. Some retrenchment followed: The Labor Management Relations Act of 1947 (Taft-Hartley Act) was passed to undercut the Wagner Act in ways that is possible to see as either a return to Lochnerism or as the rise of an executive supremacy argument in to the labor market. Writing during the negotiations of Taft-Hartley, Max Horkheimer, in Eclipse of Reason, explicitly rejects the economic premises that Taft-Harley rests upon and criticizes its logic of governance. We can learn from Horkheimer’s critique of the rationality behind the Taft-Hartley Act in order to understand the fundamental issues with the Lochner decision and modern libertarian attempts at confining governmental regulation to means that ensure the functioning of free-markets. This paper analyzes the economic rationality of the Wagner and Taft-Hartley Acts, arguing that the Wagner Act was a rejection of Locherian logic and that there is latent Lochnerian premises within the Taft-Hartley Act. This paper defines the Lochner zombie and seeks to understand the attractive power that the decision has on modern legal thought. Libertarian groups use the premises of the Lochner decision, civil rights and protection of contract as a means to render all, or almost all, governmental market regulation unconstitutional. I will be examining the cases of Lochner v. New York and West Coast Hotel Co. v. Parrish. In doing so, I will be utilizing the legal theories of Roberto Mangabeira Unger and the critical theory of Max Horkheimer as a framework for understanding the resurrection of the Lochner zombie. Part of the purpose of this paper is to establish a linkage between Horkheimer’s analysis of means-ends rationality and the reconstructive legal interpretation advocated by Unger. Using both Unger and Horkheimer together allows for a more robust critique of the ever more dominating libertarian legal theories. The Taft-Hartley Act and modern libertarian attacks on governmental regulation seek to replace the institutional and regulatory model of the Wagner Act with a theory of legal disciplinarity bound to economics and contract theory such that it would systematically exclude ethical and social justice forms of rationality from the canons of legal thinking. I counter this by proposing legal interdisciplinarity that utilizes critical theory and rationalizing legal analysis to promote democratization and governmental regulation. The only way to slay the Lochner zombie is to develop a reconstructive theory of law as a discipline situated relative to economics and other social sciences.