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Stephen Presser begins his interesting paper with the observation that the invalidation of state tort reform legislation represents a severe crisis of the legitimacy of law and legal institutions. In fact, he states it was the most severe crisis oflegitimacy of law and legal institutions in our nation's history. Professor Presser claims that this crisis began in 1937 with the legal movement known as Realism.
I take an opposite view. The invalidation of state tort reform legislation is not the result of Realism, but of the absence of Realism. The approach that several state supreme courts have taken in recent years toward the evaluation of modem tort reform is exactly the form of Lochner Era analysis that was repudiated in 1937 on the basis of Realist critique.
I believe that this is the reason that the form of economic analysis that I and many others have conducted showing the benefits to consumers of modem tort reform has had no effect on the constitutional debate. The repudiation of the Lochner analysis in 1937 was not the consequence of studies that showed that state economic regulation actually benefited the citizenry. It was not the result of economic analysis demonstrating that the minimum wage actually improved welfare (which we know it does not), or that limits on the number of hours that people worked actually improved health and well-being (equally suspect). Indeed, when we consider how irrelevant those economic arguments were to the revolution in 1937, we can see some of the reasons that conservative economic analysis today has not been very influential with regard to the constitutional debate over tort reform.
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