Wednesday, October 2, 2019

Was the Lochner Court pro-environmental?

Justices of the US Supreme Court, c. 1925
In a recent post at Legal Planet, Dan Farber writes about "pro-environmental" decisions of the US Supreme Court in the Lochner era (roughly 1900-1935), on a wide range of topics: nuisance, takings, wildlife conservation, and public lands. Farber writes that "it is somewhat startling to see just how often the famously conservative Court of that time took the side of environmental protection."

Farber's post raises a host of questions:
Are these cases representative?
"Lochner revisionism" has been in full swing for a while now - does a pro-environment stance support either the traditional or the revisionist view of the era?
Are the legal doctrines invoked in the environmental cases at odds with those behind the court's decisions in areas such as labor law?
Could analyses of the court's opinions based on class, economics, or cultural factors explain the supposed discrepancies? And so on.

Farber adds a postscript:
After this was posted, I learned that Professor Kimberly Smith at Carleton College has actually written a book on the subject, which will appear in October from Kansas University Press.  As she told me, The Conservation Constitution traces how, between 1870 and 1930, the conservation movement reshaped constitutional doctrine to support expanded state and federal authority to protect natural resources. In striking contrast to the usual “Lochner Era” story, she finds that the federal courts during this period were largely supportive of conservation policy. She argues that this favorable attitude owes a great deal to the scientific reputation of the USDA and the talented group of lawyers supporting conservation policy.  I’m eagerly looking forward to reading the book.
So am I.

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