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Journal of Law, Economics, and Organization Advance Access originally published online on May 23, 2007
Journal of Law, Economics, and Organization 2007 23(2):442-468; doi:10.1093/jleo/ewm029
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© The Author 2007. Published by Oxford University Press on behalf of Yale University. All rights reserved. For permissions, please email: journals.permissions@oxfordjournals.org

Resurrecting Lochner: A Defense of Unprincipled Judicial Activism

James R. Rogers*

Texas A&M University

Georg Vanberg**

University of North Carolina–Chapel Hill

* Department of Political Science, Texas A&M University, College Station, TX 77843-4348. Email: rogers{at}politics.tamu.edu.

** Department of Political Science, University of North Carolina–Chapel Hill, Chapel Hill, NC 27599. Email: gvanberg{at}unc.edu.

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.


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