Locke to Lochner The Constitutional History of Freedom of Contract

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Nathan Miller


Lawyers hate Lochner. Few Supreme Court decisions unite titans from so many disparate legal persuasions as Lochner v. New York. Justice Scalia once called the decision “erroneous” and “widely opposed,”2 and Justice Ginsburg said, “If anything is well established, it is well established that the Lochner era is over.” The case and its logic are so universally reviled that it has been christened one of the Supreme Court’s “anti-canons.”

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