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Publication Title

Washington University Law Quarterly

Abstract

One hundred years after the Supreme Court invalidated a law regulating bakers’ working hours as a violation of liberty of contract in Lochner v. New York, the case and its legacy are at the forefront of debate over the Constitution. This Article, prepared for Lochner’s centennial, discusses two aspects of Lochner’s history that have not yet been adequately addressed by the scholarly literature on the case. Part I of the Article discusses the historical background of the Lochner case. The Article pays particular attention to the competing interest group pressures that led to the passage of the sixty-hour law at issue; the jurisprudential traditions that the parties appealed to in their arguments to the Court; the somewhat anomalous nature of the Court’s invalidation of the law; and how to understand the Court’s opinion on its own terms, shorn of the baggage of decades of careless and questionable historiography. In short, Part I places the Lochner opinion firmly in its historical context. Part II of this Article explains how Lochner, which existed in relative obscurity for decades, became a leading anti-canonical case. As discussed in Part II, Lochner’s modern notoriety arose largely because although the Roosevelt Supreme Court abandoned Lochner with regard to judicial review of economic legislation, it preserved the Lochnerian Meyer v. Nebraska and Pierce v. Society of Sisters. Meyer, in particular, later became an important basis for the Warren and Burger Courts’ substantive due process jurisprudence in the landmark cases of Griswold and Roe v. Wade. Not surprisingly, critics of those opinions attacked the Court for following in Lochner’s footsteps.

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