The Bernstein Singularity

by Henry Farrell on May 20, 2011

David Bernstein, who clearly worries that he didn’t “promote his last book quite enough”:https://crookedtimber.org/2003/10/31/dept-of-fair-and-balanced/, is offering “various special deals on the new one”:http://volokh.com/2011/05/19/rehabilitating-lochner-publication-date-special/ over at the _Volokh Conspiracy._ The worrying thing is not that this is the “34th post”:http://volokh.com/?s=%22rehabilitating+lochner%22 that he has written touting the book in some way. It’s the rate at which the frequency of mentions appears to be increasing. For your collective edification, I have graphed the number of mentions of the book by month between 2007 and the end of April 2011.


As is immediately apparent, the number of mentions is now increasing exponentially. Should this frightening trend continue, reliable back-of-the-envelope calculations suggest that by September 2011, the publishing output of the _Volokh Conspiracy_ will consist entirely of book plugs for David Bernstein.

Would that it ended there. Some thirty-four months after that (numerologists take note of this significant coincidence), the entire Internet will be made up of blogposts lauding the virtues of _Rehabilitating Lochner_ (and offering t-shirts to every lucky fifth buyer). Not all that long after that, these posts will start straining the theoretical information-storage capacity of the planet, and, sometime within my expected lifetime, that of the galaxy. Even Charlie Stross couldn’t have predicted this one.

Pedants, potato-counters and other such folk will no doubt point to the dangers of making extrapolations from “apparent hyperbolic growth processes”:http://agrumer.livejournal.com/414194.html. But if anything, I suspect my predicted growth-curve is a gross under-estimation. After all, the book hasn’t _even been officially released yet._ One can only imagine how much further the process will accelerate once there are book tours, right-wing radio talkshow appearances and the like to chronicle exhaustively in repeated updates. And _please!_ don’t anyone tell tell him about Twitter.

{ 52 comments }

1

Billikin 05.20.11 at 2:24 am

“Pedants, potato-counters and other such folk will no doubt point to the dangers of making extrapolations from apparent hyperbolic growth processes. But if anything, I suspect my predicted growth-curve is a gross under-estimation. After all, the book hasn’t even been officially released yet.”

Buy on the rumor, sell on the news. ;)

2

LFC 05.20.11 at 2:34 am

I don’t read the Volokh Conspiracy except on extremely rare occasion, but why would anyone buy a book with this repulsive title? What is his next book going to be? Rehabilitating Dred Scott?

3

Donald Johnson 05.20.11 at 3:22 am

If I understand it correctly (which is doubtful), the Bekenstein bound should place an upper limit to the number of times he can plug his book in any given period of time.

4

crookedref sockpuppet 05.20.11 at 3:28 am

use of multiple pseudonymous identities is banned.

5

Ciarán 05.20.11 at 5:37 am

I certainly don’t understand it correctly but surely the Bekenstein bound only binds members of the reality-based community?

6

Jamie 05.20.11 at 6:04 am

Charlie did anticipate this, but was betrayed by his bleeding heart – aineko is essentially a libertaltarian character.

I actually ordered is book, with a certain request as to how it is signed. I’m actually quite curious as to how he’ll respond.

7

dsquared 05.20.11 at 7:58 am

I have no idea who Lochner is, and no real interest in his journey from respectable American suburban married life, to alcoholism and petty crime, and then back to a simpler and more moral existence, through the guidance of an old gardner played by Morgan Freeman. Which I presume is what this novel is about, and I will resist (with violence if necessary) any attempts to tell me otherwise.

8

ajay 05.20.11 at 8:51 am

dsquared has it wrong; it’s a fanfic sequel to Educating Rita.

Or possibly Finding Nemo.

9

Walt 05.20.11 at 9:27 am

Lochner was a famous runner who tore his tendon. Doctors told him he would never run again, but love of a good woman made him vow to prove them wrong.

10

dsquared 05.20.11 at 9:57 am

Maybe Lochner was a racehorse, whose owners were prepared to put him down after a horrific fall at the Grand National had left him lame. But one young jockey, against all the odds and with no formal vetenary training, rescued him and rode him to glory.

11

Kieran 05.20.11 at 11:06 am

Lochner was a hard-bitten, introverted physical therapist at Walter Reed Memorial Hospital, with an angry ex-wife and demanding teenage daughter. When an unexpectedly attractive Marine is assigned to him after an IDE in Afghanistan, Lochner treats her like any other amputee case, but after an incident in the training room he begins to discover that it is he, and not the Marine, who might be getting rehabilitated.

12

Niall McAuley 05.20.11 at 11:17 am

Using recovered DNA from a mosquito preserved in 2 million year old amber, a Koch-funded cloner creates a new subhuman worker class, hoping to roll back a hundred years of labor law.

13

Malaclypse 05.20.11 at 11:29 am

I believe Lochner was a loner who played by his own rules. But then, fate placed an adorable child in his care. This led to his heart of gold shining through.

14

Zamfir 05.20.11 at 11:38 am

After 65 year, Nazi camp doctor Heinrich Lochner is released from jail. With a terminal disease driving him on, he has to make peace with a changed world that now considers him a moral monster.

15

tomslee 05.20.11 at 11:46 am

Odd that everyone here thinks Lochner is male, when to those in the know it is clear that the Hungarian chess-playing genius will find her way back to the podium once… . actually I can’t think of any female rehabilitation archetypes.

16

David Bernstein 05.20.11 at 11:55 am

Glad to find out via Google alerts that Crooked Timber is still around. And that you’re still some sort of reverse-groupie. http://www.google.com/search?q=+site%3Acrookedtimber.org+%22henry+farrell%22+%22david+bernstein%22
Thanks for the publicity.

DB

17

mds 05.20.11 at 12:33 pm

ThBut then, fate placed an adorable child in his care. This led to his heart of gold shining through.

A literal heart of gold which he acquired in exchange for selling the adorable child into slavery in the Northern Mariana Islands. Whereupon the Central Committee of the Libertarian Party officially restored his reputation.

18

Henry 05.20.11 at 12:40 pm

bq. If I understand it correctly (which is doubtful), the Bekenstein bound should place an upper limit to the number of times he can plug his book in any given period of time.

Donald, if you think that you can pull the wool over my eyes with foofaw about ‘limits’ and ‘entropy,’ you have another think coming. This post was prepared according to the _very highest standards_ of Singularity Science. Not only did I eyeball the graph, I skimmed a science-fiction novel to find a relevant bit, searched for a factoid on Wikipedia and spent at least 2 minutes calculating powers on a calculator. The rest of you, carry on as before …

19

Mrs Tilton 05.20.11 at 12:47 pm

The film version of Rehabilitating Lochner has already been made. It’s that Post-Hypnotic Suggestion Implantation scene from Zoolander, with Will Ferrell as Joseph Lochner.

20

dsquared 05.20.11 at 12:55 pm

Same as #11, except for “When an unexpectedly attractive Marine is assigned to him after an IDE in Afghanistan, Lochner treats her like any other amputee case”, substitute “When an unexpectedly attractive Marine is assigned to him after an IDE in Afghanistan, Lochner treats him like any other amputee case”.

21

Zamfir 05.20.11 at 12:55 pm

The Bekenstein limit also puts an upper limit on the amount of hot dogs anyone can eat in a minute.

22

engels 05.20.11 at 1:10 pm

Lochner was a lawyer from the big city who lived life in the fast lane when a death in the family brought him back home to face a past he thought he’d left behind.

23

dsquared 05.20.11 at 1:13 pm

Later made into a film starring Eugene Volokh as “Lochner”, Jonathan Adler as “David Bernstein” and David Bernstein as “Tramp #2”.

24

MPAVictoria 05.20.11 at 1:50 pm

Long ago, in a a galaxy far far away a scrappy band of rebels struggle to find an ancient weapon, known only as the “Lochner”, before it is too late…..

25

engels 05.20.11 at 1:57 pm

Lochner’s comfortable existence as a respectable college professor came crashing down around him after a brief indiscretion with a sophomore.Watch his struggle to re-gain his marriage, his membership of the golf club and his career as a prominent legal apologist for the US government’s human rights violations…

26

Henri Vieuxtemps 05.20.11 at 1:57 pm

Perhaps Lochner was a young ambitious stock trader, who, seduced by a greedy ruthless speculator, betrayed his blue-collar values. After seeing his heart-broken father in a hospital bed, he rats the bastard out and heads to the slammer a new man.

27

mds 05.20.11 at 2:14 pm

Joe Lochner just wanted the family business to prosper by producing the best damn rye bread in Utica … until a sinister minion of “The Legislature” came to town with an ultimatum. His reputation destroyed by crime boss Johnny Harlan, Joe must fight to restore his good name, with the help of his plucky employees and their seventy-hour workweek.

28

mrearl 05.20.11 at 2:17 pm

Faded country singer Hank Lochner claws his way out of boozy depravity and back to the limelight with the aid and love of a good-hearted honky-tonk angel and a mysterious red-headed preacher. Soon to be a major motion picture.

29

Malaclypse 05.20.11 at 2:26 pm

I am doomed to remember a boy with a wrecked voice-not because of his voice, or because he was the smallest person I ever knew, or even because he was the instrument of my mother’s death, but because he is the reason I believe in God; I am a Christian because of Joseph Lochner.

30

LFC 05.20.11 at 3:48 pm

Niall McAuley @12 gets my vote f0r connecting the Hollywood treatment with the actual subject of the Lochner case. But the others are also good.

31

David Bernstein 05.20.11 at 5:27 pm

@LFC 2:34 AM. Funny you should ask. The very first page of the book explains why its absurd to compare a case like Lochner to a case like Dred Scott. If you don’t understand why, you really should read the book, or at least that page, which you can get for free at the link. Judging from his comment, Niall McAuley should read chapter 2, which explains (in great detail) that Lochner involved unionized workers and their employers against non-unionized bakeries, not corporations versus workers.

32

Substance McGravitas 05.20.11 at 5:30 pm

Does the book slice dice or julienne?

33

Nababov 05.20.11 at 5:42 pm

I’m sure somewhere out there in this brave new world is a sexual act called “the Lochner”, possibly involving lobsters and one dozen toothpicks.

34

christian_h 05.20.11 at 5:55 pm

Inveterate libertarian blogger with absolutely no sense of humour comes close to destroying the world by creating a singularity. Catapulted through the resulting wormhole into a Galtian world of heroic producers, he sees the error of his ways and becomes a moocher.

35

Mrs Tilton 05.20.11 at 6:04 pm

@David Bernstein 5.27 pm,

it’s possible you’re right, of course. It’s just that I’ve never read anything you’ve written that would persuade me it’s worth even the effort of a click-through to read anything else you’ve written. Life is short, so thanks all the same, but in this case I’ll just let asses bray.

36

rea 05.20.11 at 6:22 pm

Lochner involved unionized workers and their employers against non-unionized bakeries, not corporations versus workers

The issue in Lochner was whether the state could constitutionally prohibit employers and individual employees from contracting for more than 10 hour work days or 60 hour work weeks–with the corollary being that any employee who did not agree to such terms was out of a job. Guys like Bernstein don’t want to admit that employers and individual employees do not have equal bargaining power, and that talk of “freedom of contract” is nonsense except between equals. Employees are fungible–work them to death and there are always more–that’s the libertarian way.

37

LFC 05.20.11 at 6:34 pm

David Bernstein @31
Since you have pointed me to it, I will read at least the first page of the book.

38

David Bernstein 05.20.11 at 8:06 pm

“The issue in Lochner was whether the state could constitutionally prohibit employers and individual employees from contracting for more than 10 hour work days or 60 hour work weeks—with the corollary being that any employee who did not agree to such terms was out of a job.”

Actually, the specific issue in Lochner was whether the government could put an owner of a tiny bakery in jail (or alternatively subject him to a criminal fine) because he allowed his employee to stay late to learn the art of cakebaking, and the more general issue was not whether the government could generally limit the work day to ten hours, but whether the government could specifically limit bakery workers to ten hours without, unlike just about every other hours law that’s over been passed, any provision for overtime.

“Guys like Bernstein don’t want to admit that employers and individual employees do not have equal bargaining power, and that talk of “freedom of contract” is nonsense except between equals. Employees are fungible—work them to death and there are always more—that’s the libertarian way.”

The book is a historical work, not a defense of freedom of contract, which helps explain the identity of my blurbers. But it’s much easier and possibly more fun to beat the libertarian strawman than to bother reading even the Introduction provided at the relevant link, so beat away.

As for Christian, it’s not that I don’t have a sense of humor, it’s that Dr. Farrell has a history of gratuitous insults aimed at me, a history that doesn’t suggest light-hearted intent.

39

MikeM 05.20.11 at 8:31 pm

Do you realize how many pilots for a TV series have been generated by this blog? Vast wasteland, indeed!

40

rea 05.20.11 at 9:32 pm

“Actually, the specific issue in Lochner was whether the government could put an owner of a tiny bakery in jail (or alternatively subject him to a criminal fine) because he allowed his employee to stay late to learn the art of cakebaking, and the more general issue was not whether the government could generally limit the work day to ten hours, but whether the government could specifically limit bakery workers to ten hours without, unlike just about every other hours law that’s over been passed, any provision for overtime.”

It is a curious method of construing a judicial opinion, to refer to facts and issues not mentioned in the opinion as showing what the opinion “really” means. I invite all readers to examine the opinion at the link below and see if Mr. Justice Peckham said a word about overtime, much less “allow[ing the] employee to stay late to learn the art of cakebaking.”

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=198&invol=45

41

Ebenezer Scrooge 05.20.11 at 10:19 pm

As far as I remember, Lochner didn’t become famous because it imposed Constitutional limits on economic regulation. This was well-accepted up until the 1930’s. Holmes’ dissent was way out of the legal mainstream for its time.
Lochner became famous because the majority was dogmatic, pigheaded, and unrealistic in the service of an agenda–kind of like modern 4th Amendment jurisprudence which pretends that anybody can exercise their right to refuse a police search. Harlan’s dissent was an attempt to take both the police power and economic liberty seriously: to balance between Holmes’ statism and Peckham’s Tea-Party-ism.

42

David Bernstein 05.20.11 at 11:45 pm

Actually, Ebeneezer, Lochner didn’t really become famous until Justice Black tried to use it to justify his rather unique theory that the Constitution protects only those rights explicitly mentioned in the Bill of Right (Griswold v Connecticut, 1965), and then critics of Roe v. Wade used it to bash Roe.

Rea: Justice Peckham wrote the opinion. Justice Peckham, along with Justice Brewer, consistently dissented when their colleagues voted to uphold labor regulations. The interesting question is not why Peckham thought the law was unconstitutional, but how he persuaded three additional colleagues who almost always voted to uphold labor laws to go along. I argue that it’s because of the unique aspects of the Lochner law. You can feel free to disagree, but reading Peckham’s opinion is not going to help much (why didn’t his colleagues write a narrower, concurring opinion? because such opinions were very rare in those days, and Lochner was not an especially important case at the time).

43

rea 05.20.11 at 11:58 pm

it’s much easier and possibly more fun to beat the libertarian strawman than to bother reading even the Introduction provided at the relevant link, so beat away.

I did read it. Oh, my.

“The Lochner line of cases pioneered the protection of the right of women to compete with men for employment free from sex-based regulations; the right of African Americans to exercise liberty and property rights free from Jim Crow legislation; and civil liberties against the states ranging from freedom of expression to the right to choose a private school education for one’s children . . . Many post-New Deal liberal developments in Fourteenth Amendment jurisprudence can trace their origins to Lochner and its progeny. “

You know, there is a reason Bernstein is writing a book called, Rehabilitating Lochner. The reason is that Lochner has had a very bad reputation since the 1930’s. That opinion was emphatically shared by the judicial authors of those “post-New Deal liberal developments in Fourteenth Amendment jurisprudence,” who spent considerable time and effort explaining that what they were doing was not following Lochner. Apparently, then, the thesis of the book is that several generations of judges and legal scholars were secretly following Lochner despite loud protestations that they weren’t.

I don’t think I’ll be buying the book.

44

Andrew 05.21.11 at 12:04 am

David Bernstein @38: The book is a historical work, not a defense of freedom of contract, which helps explain the identity of my blurbers. But it’s much easier and possibly more fun to beat the libertarian strawman than to bother reading even the Introduction provided at the relevant link, so beat away.

There’s certainly a large body of historical work – in which Bernstein’s is included – that supports a revisionist take on Lochner. According to the revisionists, Lochner was neither a dramatic departure from constitutional jurisprudence at the time, nor a flagrant example of a countermajoritarian court refusing to recognize the democratic discretion of the legislature.

But while this work is largely in agreement that there is a difference between the historical Lochner and the symbolic Lochner, there does remain disagreement as to (1) the explanation for the Court’s decision in that case, and in related cases through the 1920s, and (2) the relationship of that case to post New Deal fundamental rights jurisprudence.

If I understand the controversy correctly, Bernstein maintains that the Lochner Court was simply including freedom of contract – economic liberty – among the fundamental rights to be protected. Along the way to the present, the Court dropped economic liberty as a fundamental right, but kept others (and found new ones). Others, like Howard Gillman, argue that the Lochner Court was concerned more with the scope of police powers rather than fundamental rights as such. Gillman claims that the Court acted to police the police powers, particularly in the interests of business and conservatives. The central issue was whether the health law was truly an exercise of those police powers as understood through a jurisprudence developed to further those interests. A conception of fundamental rights, of “preferred freedoms,” played little role, until it was developed in a later line of cases.

So the controversial aspect of the book, judging solely from its title and the introduction, is not the Rehabilitating Lochner part; it’s the Defending Individual Rights against Progressive Reform portion.

As to who is correct, I have no firm opinion.

45

rea 05.21.11 at 12:15 am

reading Peckham’s opinion is not going to help much

Look, I’m just a practical appellate litigator–I don’t write books on constitutional law. But as a matter of first principles, it doesn’t matter what was really going on behind the scenes, or in the judge’s heads. The opinion stands for its holdings, and maybe its persuasive dicta; the holdings are to be construed and distinguished on the basis of the facts stated in the opinion. Factual background that the author of the opinion did not think was significant enough to include in the opinion does not, and in the nature of things cannot, matter. That’s just the way law works. So, no, you don’t get to claim that Lochner meant something other than what it said.

46

Lolz 05.21.11 at 2:24 am

Wow. That owner is so sweet. He let his employee stay late to learn the art of cake baking. Sounds like the life!

47

David Bernstein 05.21.11 at 4:35 am

Actually, Lolz, Lochner and his worker were buddies, and the complaint was almost certainly a set up between him and Lochner to create a test case. But, yes, under the terms of the law, even if a boss merely “allowed” a worker to stay late to learn something useful, and even if the employer offered double, triple, or quadruple overtime for workers who agreed to stay late in an emergency–say a big order was due the next day and the oven had stopped working for a few hours–the employer was still subject to criminal penalty. Which didn’t stop the bakers’ union from signing its own contracts providing for overtime, knowing that state authorities had no interest in prosecuting THEIR employers.

48

Niall McAuley 05.21.11 at 2:19 pm

Mr. Bernstein writes: Niall McAuley should read chapter 2, which explains (in great detail) that Lochner involved unionized workers and their employers against non-unionized bakeries, not corporations versus workers.

Ah, but in my reimagined version, it’s an army of ionized Homo Habilis clones vs. a tomboy Sopwith Camel pilot and her Ground-Sloth sidekick!

49

Henri Vieuxtemps 05.21.11 at 2:56 pm

Down with bread-baking thugs!

50

CJColucci 05.22.11 at 3:06 pm

Lochner was 5-4, and while everyone remembers Holmes’s solo dissenting opinion, no one remembers Harlan’s dissent for 3 members of the Court. It takes on Peckham’s majority opinion on its own terms, illustrating better than Holmes’s did (or, to be fair, tried to) that Peckham — as to whom Holmes once said his invariable first premise was “Goddammit!” — though he ostentatiously paraded a bunch of cases, was really saying no more than “Goddammit, this just goes too far. Why? Well, because, Goddammit!”
It’s true that Lochner later became a symbol rather than a real case, and that, as a real case, it wasn’t very important. And in the natural course of things some subtleties that wouldn’t otherwise matter have gotten lost, and some hacks and non-specialists get details wrong in passing commentary on the symbol. The book, however, seems to be a solution in search of a problem — unless the passing swipes at Progressives who shared some unfortunate attitudes with most of the non-Progressive population are the real point of the book. But for that we have Jonah Goldberg.

51

ajay 05.22.11 at 6:36 pm

48: it’s unarguably better to be unionised than ionised.

52

chris 05.23.11 at 4:11 pm

the more general issue was not whether the government could generally limit the work day to ten hours, but whether the government could specifically limit bakery workers to ten hours without, unlike just about every other hours law that’s over been passed, any provision for overtime.

I don’t see how that can even be an argument; isn’t it well established that the unwisdom, or even outright stupidity, of a law doesn’t make it unconstitutional? So clearly, if the government can regulate bakery workers’ hours at all, it can regulate them clumsily; fixing that is a matter for the legislative process, not judicial review.

Striking down laws as unconstitutional when your real quarrel with them is that they are poorly drafted and produce inefficient results is exactly the sort of thing that even the most judicially activist opinions strenuously protest they are not doing.

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