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Some Varieties And Vicissitudes Of Lochnerism, Barry Cushman

Journal Articles

This article is a contribution to the Lochner Centennial Symposium at Boston University School of Law. Until recently, a consensus appeared to be emerging among constitutional historians concerning how best to interpret Lochner-era decisions involving Fifth and Fourteenth Amendment challenges to state and federal economic regulation. After decades during which the Court's jurisprudence had been characterized as the product of a reactionary judiciary's commitments to Social Darwinism and laissez-faire economics, more recent scholars had come to see the Court's police powers decisions as animated by what Professor Howard Gillman has called the principle of neutrality. On this view, the Court's …