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33 Notre Dame L. 5 (1957-1958)


Nowadays, there is no more discredited era in our judicial history than that represented by such cases as Lochner v. New York.' During this era, we are told, our ancestors were so benighted economically as to embrace economic principles incapable of producing the good life, and so benighted judicially as to read their economics into the Constitution. We have barely left behind us the bulk of the advocates and judges whose role in history it was to slay the giant laissez-faire, so it is not surprising that we should have no picture of their adversary but the dne that was drawn in the heat of battle. It is perhaps time, however, to consider what it is that has fallen in the fight, what weapons brought it down, and indeed, why it was worthy of the fate it suffered. This article will attempt to explore the nature and significance of the conceptual structure in which the validity of the growing body of social legislation was put to the test under the fourteenth amendment, from the first cases at the end of the nineteenth century to the eve of the final triumph in 1937.


Reprinted with permission of Notre Dame Law Review (previously Notre Dame Lawyer).



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