Document Type
Article
Publication Date
2003
Publication Information
55 Ark. L Rev. 1009 (2003).
Abstract
In 1994, Richard Friedman made a very useful contribution to the growing body of scholarship on the development of constitutional doctrine during the New Deal era. Though I differed with Friedman on some points of interpretation, I nevertheless found much in the article to admire. Now, eight years later, Friedman has presented us with a more extended discussion of a particular aspect of that constitutional development, namely, the transformation of Commerce Clause doctrine. Here again I see points of agreement. We agree that it is unlikely that the Court Packing Plan played much of a role in that transformation. We agree that there are certain noteworthy stylistic similarities between Justice Roberts's opinion in Nebbia v. New York and Chief Justice Hughes's opinion in NLRB v. Jones & Laughlin Steel Corp. And we agree that the development of Commerce Clause doctrine between 1890 and World War II was marked by less discontinuity than is sometimes recognized. In this article, however, Professor Friedman highlights several of our points of interpretive difference. As a consequence, I find much in his article with which I regrettably cannot agree. In this brief comment, I propose to identify the points of disagreement, and to explain why I find Friedman's account unpersuasive.
Recommended Citation
Barry Cushman,
Continuity and Change in Commerce Clause Jurisprudence,
55 Ark. L Rev. 1009 (2003)..
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/1773
Comments
Abstract from introduction.