Today’s market idolators don’t know much, but they know what they hate. Take libertarian University of Chicago law professor Richard Epstein, who in his reliably hallucinatory Forbes.com column uses a wonky John Judis defense of the Obama White House’s approach to regulatory policy to divine all sorts of pernicious motives in the Progressive vision of law and policy making.... Epstein, best known for his labored efforts to resurrect the Constitution’s takings clause into something of a free market Magna Carta, leaps upon a passing reference to Progressive Era attorney (and New Deal Supreme Court justice) Louis Brandeis, in Judis’ recent New Republic piece—and from it fashions an all-purpose assault on what he takes to be the incorrigibly paternalist outlook of the Progressive tradition.... Epstein....
The body of the [Brandeis] brief is the absolute antithesis of any scientific argument. Brandeis stitches together an endless array of government reports.... Nor, as a matter of political economy, does he explain why state regulation is needed.... Women themselves could figure that out as well, certainly after reading any of the studies on which Brandeis relies. That done, women could—and surely did—sort themselves by occupation such that the jobs went to those best able to handle risks.
This is all, in Epstein’s judgment, yet another baleful instance of a Progressive penchant for “intellectual self-promotion” against the sober dictates of impartial scientific inquiry into policies that dare to impinge on the sacred right of employer-empowering labor contracts... as witnessed, to take one of countless examples from the era, in the hapless 146 women who failed optimally to “sort themselves by occupation” in the free-contract Valhalla of Epstein’s fond imaginings and so were martyred in the Triangle Shirtwaist Fire of 1911 because their employers thought the best way to beneficially employ immigrant workers was to keep them locked up on site at all times. (The Triangle fire also furnishes perhaps the most cogent reply—again, among countless contenders—to a plaintive sidebar question Epstein poses about modern feminists: “Why aren’t they libertarians?”)...
More to the point, however, the precedent for introducing “sociological” argument about the real-world impact of a high court ruling was not set by Brandeis... it first surfaced in the jurisprudence in the landmark 1905 pro-business ruling Lochner v. New York.... Justice R.W. Peckham dug up a set of contemporary public health and workplace surveys that allegedly showed that there was nothing particularly unhealthy about workdays longer than 10 hours in the baking industry. And like any savvy attorney wanting to exploit the prevailing drift of court opinion, Brandeis crafted his Muller brief accordingly. As Bernstein observes:
Brandeis was likely motivated to write a “sociological” brief by Peckham’s assertion in Lochner that he had relied on statistics demonstrating the relative healthfulness of baking....
While this may all seem like fairly gnat-straining legal history, it actually doubles up the delusion factor in Epstein’s tirade, since our correspondent duly goes out of way to pay obeisance to the wisdom of the Lochner decision.... See, the thing with legal scholarship—at least in a perfect world—is that it’s supposed to flow smoothly in channels of argumentative procedure, and not backwards from preferred outcomes. So to impute grandiose motives of snotty I-know-what’s-best-for-everyone elitism to a tradition of reasoning one finds ideologically suspect, one had better be sure that one has a reasonably firm grasp on one’s facts...
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