Robert Knowles (University of Baltimore School of Law) has posted How Lochnerism Ends (56 Seton Hall Law Review 65) on SSRN. Here is the abstract:
The Roberts Court’s aggressive push for deregulation-often called New Lochnerism-seems ascendant in constitutional jurisprudence. The Court has revived Lochner-era judicial activism-dismantling bases for agency power, constitutionalizing free-market principles via the First Amendment, and using novel interpretive doctrines to curb the reach of major regulatory statutes. Its foreign affairs jurisprudence also mirrors the Lochner-era’s in favoring a conception of U.S. sovereignty that rejects binding international commitments. This Article explains why New Lochnerism has likely peaked and will begin a rapid decline. It introduces a model of Lochnerism’s life cycle using insights from history, political science, and economics to identify the features common to both original and new Lochner. This Article concludes that Lochnerism thrives in globalizing eras with low levels of conflict involving the U.S., but the emergence of high-conflict geopolitics drives Lochnerism into exile. New Lochnerism was nurtured by a U.S.-led neoliberal era of free trade and globalization. But even as New Lochnerism became ascendant, that world was disappearing. Faith in unregulated markets was shattered by financial crises, the pandemic, and rising powers’ willingness to use the integrated nature of the system to undermine democracy. Nationalism surged and great power conflict reshaped national priorities. This Article predicts that the new high-conflict global landscape-with national security imperatives demanding government-driven, coordinated policy-will force the Court to unwind its anti-regulatory project. We are at the end of Lochnerism’s life cycle, not the beginning.