Lochner in Cyberspace: the New Economic Orthodoxy of "rights Management"

Ninety-three years ago, in Lochner v. New York, the Supreme Court struck down a maximum-working-hours law for bakers as an impermissible invasion of employer-employee liberty of contract and, by implication, of the employer's property rights in his business. Lochner came to symbolize, and was vilified for, a vision of state power as rigidly circumscribed by the operation of judicially-determined laws of social ordering. By the late 1930s, the Court had changed course and accepted that the states' police power or, in the case of Congress, the commerce power encompassed even protective regulation of the parameters of the private employment contract. Within the modern legal academy, "Lochner" has become an epithet used to characterize an outmoded, over-narrow way of thinking about state and federal economic regulation; it goes without saying that hardly anybody takes the doctrine it represents seriously.