[David E. Bernstein] Lochner and Child Labor

The Supreme Court's decision in Epic Systems v. Lewis yesterday, holding that as matter of federal law arbitration agreements take precedent over class action lawsuits, saw many liberals comparing the decision to Lochner v. New York, an infamous 1905 case in which the Court held that the right to "liberty of contract" superceded a state law prohibiting bakers from working more than ten hours a day, sixty hours a week. Many myths have sprung up over the years about Lochner, and I have tried to dissect these myths in my academic work, most prominently in my book, Rehabilitating Lochner. Some of these myths are complicated. One that is not is the myth that the Supreme Court invalidated child labor laws as a violation of liberty of contract. This myth has roared to life once again in commentary on Epic Systems. I've blogged about this in the past, but it's obviously worth repeating: In the middle of the so-called Lochner era, the Supreme Court upheld state…

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