Lochner v. New York is one of the Supreme Court’s great anti-precedents. Typically taught in law schools as an example of how judges should not behave, Lochner rested on a fabricated “right to contract” that, in effect, gave employers broad license to exploit their workers. The so-called right invented in Lochner and similar cases later formed the basis for decisions striking down the minimum wage and laws protecting workers’ right to organize.
Speaking at Brandeis University last Thursday, Justice Ruth Bader Ginsburg offered a warning that Lochner may not be as much of a relic of the past as it is often presented in legal textbooks.
I was reminded of Lochner reading some decisions of the Court concerning workers, consumers, credit card holders who signed agreements saying “if you have a dispute with us, you can bring it only in arbitration — not in court — and you cannot use the class action device. You must sue for your individual claim, which might be 30 dollars, and that’s it.” And that has also been described as tied to liberty of contract.
The cases Justice Ginsburg refers to concern a common practice where companies refuse to do business with consumers — or threaten not to hire a worker — unless the worker or consumer agrees to sign away their right to bring any disputes against the company in a real court, and instead submit to a private arbitrator.More ...