Notes From Babel

Why the Necessity of Regulation Should Not Be a Foregone Conclusion

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While in law school, I peppered Tim Sandefur with lots of questions about takings, government regulation, substantive due process, etc.  Apparently, he’s still providing students with very enlightening responses to incisive questions.  Here’s an except of a question from an Administrative Law student that gives some insight into Lochner (the (in)famous case that struck down maximum wage laws on bakers, now viewed as one of the worst cases in Supreme Court history) that I didn’t know:

Finally, “it was apparent” [that some additional level of governance was required in the wake of the “unregulated 19th Century”] to whom? The Progressive version of history implies that all good people believed that government control over the economy was essential, and the only people who could oppose it were evil greedy capitalists. This is childish, good-guy/bad-guy mythology, not history. The debates over things like maximum hours laws, child labor laws, minimum wages, &c., were and remain complicated, with both good and bad guys on both sides and good and bad arguments on both sides. Yes, many who supported maximum hours laws like in Lochner were good people with pure motives. But those laws were also supported by bakery companies that were automated and could therefore operate 24 hours a day without human labor. Maximum hours laws eliminated their competition. Unions liked these laws too, because double-shift bakeries could thereby eliminate competition from small independent bakeries that were non unionized. Henry Weismann, the most vocal proponent of the maximum hours law in Lochner later bought a bakery and found how hard it was to keep the thing going under the maximum hours law. Then he went to law school and became the attorney who argued against that same law’s constitutionality in the Supreme Court! Why? Because he was evil? That’s a childish way of viewing history. It “became apparent” only to some that government control over the economy was a good idea. To others it was not apparent. It is not apparent to me.

It does seem that just a wee bit of clamoring is all we deem necessary to encourage the government to paw all over some industry that we fancy could use some tinkering.

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Written by Tim Kowal

August 23, 2009 at 10:25 pm

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