A “SWITCH IN TIME” FOR THE EUROPEAN COMMUNITY? LOCHNER DISCOURSE AND THE RECALIBRATION OF ECONOMIC AND SOCIAL RIGHTS IN EUROPE

14 Colum. J. Eur. L. 467 (2008)

Ian H. Eliasoph, Attorney, U.S. Department of Labor. B.A., Loyola College of Maryland (2000); J.D., University of California, Berkeley (2003); LL.M., Cambridge (U.K.) (2007). The views expressed are entirely my own and in no way represent those of the U.S. Department of Labor.

This Article undertakes a comparative analysis of debates related to the legacies of the Lochner era in the United States with contemporary debates in Europe. It demonstrates that in the 1980s and   early  1990s the governance of the European Community (“EC) began to assume characteristics reminiscent of Lochner era governance, sparking debates in Europe similar to those associated with Lochnerism. In particular, concerns arose that the European Court of Justice (“ECJ) was undermining state-level social regimes via an activist jurisprudence that tended towards  negative  integration  by favoring  Community-wide economic rights over state-level social protections. Over the last fifteen years there has been a substantial effort in both the political and judicial sphere of the EC to recalibrate the Community’s approach to economic and social rights. However, in contrast to the demise of Lochnerism in the United States, which was followed by a prolonged period of judicial restraint exercised by the Supreme Court, the EC and its Member States have reacted to the Community’s perceived disequilibrium between social and economic rights by vesting the ECJ with broader authority to determine policy, thereby further magnifying its institutional gravity. From the perspective of the American experience with Lochner, this reallocation of power may be praised or condemned depending on which criticism of the Lochner Court one chooses to embrace. For those that hold that the Lochner era demonstrated that courts are not institutionally suited for decisions implicating delicate public policy choices, the current approach in the EC should be viewed with foreboding. For those who view the Lochner Court’s failing as not institutional but merely stemming from a substantive failure to recognize that economic rights can hinder liberty as well as promote it, sound judicial balancing, even  in relation to delicate policy choices, need not portend disaster. The Article concludes that regardless which view is taken, the Lochner era serves as a paradigmatic anti-model that the ECJ can only ignore at its extreme peril.