Hastings Law Journal


Ilana Waxman


For anyone interested in critiquing the laissez-faire view of regulation as an illegitimate intrusion on the rights of property owners, it is particularly important to understand the historical fate of progressive critiques during the Lochner era. One such critique came from Robert Hale, a progressive law professor and economist of the 1920s-1940s who has proved to be one of the most enduring of the Lochner-era critics. Although Hale's critique of private property and the free market fell into obscurity after his retirement in 1949, it was revived in the 1970s, and has been the subject of considerable scholarly interest for the past two decades.

Part I gives an overview of Hale's alternative conception of property rights. Part II discusses some of the ways that Hale's contemporaries drew upon his critique of property during the 1920s-1940s to undermine the conservative property-rights arguments against the emerging regulatory and social welfare state. Part III traces the decline of Hale's prestige in the face of the Cold War liberal consensus of the 1950s and 1960s, beginning with the publication of his 1952 post-retirement opus, Freedom Through Law, and culminating with Charles Fried's leftist call for a "new property." Part IV describes Hale's revival in the 1970s, and analyzes a number of the arguments that Hale's critique of property has been used to support since then.

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