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Journal ArticleDOI

Economic Due Process and the Supreme Court: An Exhumation and Reburial

01 Jan 1962-Supreme Court Review (The University of Chicago Press)-Vol. 1962, Iss: 1, pp 3
About: This article is published in Supreme Court Review.The article was published on 1962-01-01. It has received 33 citations till now. The article focuses on the topics: Supreme court.
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01 Mar 2019

4 citations

Journal ArticleDOI
TL;DR: The role of the Lochner era in constitutional discourse outside of the United States is explored in this article, where it is argued that instead of serving as a positive model for drafting and construing constitutional provisions, it serves as a negative guide to constitutionalism, with respect to both the framing of constitutions and constitutional interpretation.
Abstract: The Lochner era exerts a powerful hold over the American constitutional imagination as an example of the dangers of judicial review. Indeed, much of the edifice of the last fifty years of American constitutional jurisprudence can be viewed as a reaction to, a rejection of, and an attempt to avoid a repetition of, the Lochner era. I want to explore a related phenomenon that has received insufficient attention from students of comparative constitutionalism - namely, the role of the Lochner era in constitutional discourse outside of the United States. My central argument is that instead of serving as a positive model for drafting and construing constitutional provisions, the Lochner era serves as a negative guide to constitutionalism, with respect to both the framing of constitutions and constitutional interpretation. Lochner lurks as a shadow over liberal democratic constitutionalism, a constitutionalism which is framed in part by what it is not. In so doing, the Lochner era stands as perhaps the paradigmatic instance of an "anti-model" of comparative constitutional experience.

4 citations


Additional excerpts

  • ..., Lochner, 198 U.S. 45 (1905) (U....

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  • ...the District of Columbia, 261 U.S. 525 (1923) (U....

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  • ...Hardy, 169 U.S. 366 (1898); Muller v....

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  • ...71 A.R. 337 (Ct. App. 1986): Re G. E. Z., Quicklaw [1987] M....

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  • ...1988); Phillips v. Moose Jaw Police Commissioners, 67 Sask. R. 49 (Q.B. 1988); R. v. Pinehouse Plaza Pharmacy Ltd., 67 Sask. R. 201 (Q.B. 1988), aff'd, 89 Sask. R. 47 (Q.A. 1991); Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, No. 8501-05620, Quicklaw [1988] M....

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Journal ArticleDOI
TL;DR: Due process can be a complement to reinvigorated delegation constraints and reformed deference rules or a partial substitute for failure to properly reform those doctrines, but it is at best a “second best” option as mentioned in this paper.
Abstract: Due process as a notion of basic fairness has deep roots and broad intuitive appeal. It is a guarantee, stretching back at least to Magna Carta, that government’s most feared impositions on those within its reach — using coercive powers to take away our lives, our liberty, or our property — can only be accomplished through processes that have qualities of regularity and impartiality under rules adopted through mechanisms that historically carried the hallmarks of legitimacy, generality, and neutrality. The same instincts that underlie due process guarantees also inform the structural protections that are the central features of our Constitution. The goal under either label is to protect liberty by regulating the way government goes about setting and applying legal rules. The intuitive appeal of the notion of “due process,” however, at times has obscured the limited reach of the core concept, which is restricted in both what it applies to and what it requires. Transformation of due process from that core to a looser constraint that can be shaped to fit particular notions of good governance has produced serious failures, both encouraging episodes of judicial adventurism that invade space reserved to electoral-representative processes (the story of “substantive due process”) and weakening protections against inappropriate exercises of official discretion. Reliance on softer notions of due process may be especially problematic in respect to questions of administrative process, which often lie outside the ambit of appropriate due process constraints. Even where due process does apply, other legal rules strongly influence the degree to which administrative processes work and frequently provide better avenues for constraining them. Addressing directly the problematic nature of many delegations of authority to administrators and of inappropriate judicial deference to administrative determinations by and large will be preferable to due process challenges to administrative action. Due process can be a complement to reinvigorated delegation constraints and reformed deference rules or a partial substitute — used to compensate for failure to properly reform those doctrines — but it is at best a “second best” option.

3 citations