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AALS
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American Political Science Association

Conference on Constitutional Law

June 5–8, 2002
Washington, D.C.

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Small Group Discussion: Lochner Revisionism

Vagaries and Varieties of Lochnerism

Barry Cushman
University of Virginia

  1. Lochnerism: the scope of its manifestations and the points at which those manifestations were eclipsed.
    1. Lochner Itself
      1. Lochner and Working Hours Regulation
      2. Lochner and Regulation Generally
    2. Manifestations of Lochner
      1. Adair v. United States (1908) (invalidating federal anti-yellow dog statute)
      2. Tyson Bros. v. Banton (1927) (invalidating price regulation of theater ticket sales)
      3. Adkins v. Children’s Hospital (1923) (invalidating minimum wage regulation for women in the District of Columbia)
    3. Erosions of Lochner
      1. Bunting v. Oregon (1917) (upholding maximum hours regulation in mills and factories)
      2. Texas & New Orleans R.R. Co. v. Brotherhood of Railway and Steamship Clerks (1930) (upholding collective bargaining provisions of the Railway Labor Act of 1926)
      3. Nebbia v. New York (1934) (upholding price regulation of milk)
      4. The Labor Board Cases (1937) (upholding collective bargaining provisions of the National Labor Relations Act)
      5. West Coast Hotel v. Parrish (1937) (upholding minimum wage regulation for women)
      6. The Minimum Wage before and after Adkins
        1. Stettler v. O’Hara (1917) (upholding Oregon minimum wage law for women by an equally divided Court)
        2. Murphy v. Sardell (1925) (invalidating Arizona minimum wage law on the authority of Adkins)
        3. Donham v. West-Nelson Mfg. Co. (1927) (invalidating Arkansas minimum wage statute on the authority of Adkins)
        4. Morehead v. New York ex rel. Tipaldo (1936) (invalidating New York minimum wage statute on the authority of Adkins)
  2. Lochnerism: its lesser known manifestations and their persistence.
    1. Railroad Retirement Board v. Alton (1935) (invalidating Railway Pension Act of 1934)
      1. Roberts’ opinion for the majority
      2. Hughes’s dissent
    2. The Aftermath of Alton
      1. The Carrier Taxing Act of 1937 and the Railroad Retirement Act of 1937
      2. Alton and collective bargaining: Due Process and the Labor Board Cases
      3. United States v. Carolene Products (1938), the rational basis test, and the continuing vitality of Alton
      4. United States v. Lowden (1939) (Alton abandoned; Roberts protests)
    3. Colgate v. Harvey (1935) (invalidating provision of Vermont state tax on grounds that it violated the equal protection and privileges or immunities clauses of the Fourteenth Amendment)
    4. Madden v. Kentucky (1940) (overruling Colgate v. Harvey; Roberts dissents)
    5. Mayflower Farms v. Ten Eyck (1936) (invalidating provision of New York Milk Control Act on equal protection grounds)
    6. United States v. Rock-Royal Cooperative (1939) (upholding milk regulation orders promulgated by the Secretary of Agriculture; Hughes and Roberts dissent)
  3. The Fate of the Third Way
    1. The Image of the Moderate Justice
    2. Supreme Court History as Collective Intellectual Biography
    3. How Lochner Died