A while back, I wrote that between the demise of the Supreme Court’s liberty of contract jurisprudence during the New Deal period and publication of Bernard Siegan’s Economic Liberties and the Constitution in 1980, I could find only one article, chapter, or book that had anything good to say about the Court’s most famous liberty of contract case, Lochner v. New York. Well, it turns out that in additon to the one article I previously cited, William Letwin beat Siegan by a year. Tim Sandefur pointed me to Letwin’s “Economic Due Process in the American Constitution And The Rule of Law” in Liberty and the Rule of Law, ed. by Robert L. Cunningham, (Texas A&M U Press 1979). In this chapter, Letwin clearly evinces sympathy for Lochner, even concluding that “[w]hether economic due process will be restored we cannot foretell, but it could be and should be.” On the other hand, Googling Letwin suggests that he spent his career as a professor in England, not the U.S., so my original statement still stands, if we limit the author pool to this side of the Pond.
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