| Book Review | The American Historical Review, 107.2

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| Book Review | The American Historical Review, 107.2 | The History Cooperative

Book Review

Canada and the United States

David E. Bernstein. Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal. (Constitutional Conflicts.) Durham, N.C.: Duke University Press. 2001. Pp. xiii, 191. $39.95.

Inspired by a 1998 lecture at the Cato Institute on "the effects of facially neutral economic regulations," by legal studies at Yale, and by a John M. Olin Foundation fellowship (p. xi), David E. Bernstein has produced a revisionist account of job discrimination against African Americans in the context of neoclassical economics, which holds that wages are flexible in a free labor market. The major culprits in this saga of discrimination, the author asserts, were those who used "political power at the expense of those without" it (p. 5), particularly unions allied with governments, which interfered with the market at the expense of black workers. The key legal case, Lochner v. New York (1905), by invalidating a New York law limiting bakery employees to a sixty-hour week, upheld the free market principle. It also labeled the New York law as class legislation, because unionized German workers benefited at the expense of unorganized Jewish and Italian immigrants. Thus "Lochnerism" is used throughout the study in reference to all "liberty-of-contract jurisprudence" (p. 2). According to Bernstein, African Americans, discriminated against and disfranchised, benefited from Lochnerian decisions. Nevertheless, Lochner subsequently faced withering criticism and was discredited by "statist Progressives and Legal Realists" (p. 2). . . .

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