Mayer’s Articles on Liberty of Contract Published by Mercer and Hastings Law Reviews

August 3, 2009

Professor of Law David N. Mayer has published two articles addressing the U.S. Supreme Court during the “Lochner” era, which spanned 40 years between the Court’s decision in Allgeyer v. Louisiana (1897) and its decision in West Coast Hotel v. Parrish (1937). Specifically, the articles discuss the Court's protection of liberty of contract as a fundamental right during the Lochner era and lay out how the right of privacy has roots in this era.

“The Myth of `Laissez-Faire Constitutionalism’: Liberty of Contract during the `Lochner Era’” (36 Hastings Const. L. Q. 217 (2009)) synthesizes the best of the new scholarship on the Lochner era, while also making original points not discussed elsewhere. The article explains liberty of contract jurisprudence on its own terms, distinguishing it from true “laissez-faire constitutionalism.”

Mayer’s second article about the Lochner era, “Substantive Due Process Rediscovered: The Rise and Fall of Liberty of Contract,” (60 Mercer L. Rev. 563 (2009)) discusses liberty of contract in the context of the history of substantive due process.

Both articles are part of a larger project, the book Liberty of Contract: Rediscovering a Lost Constitutional Right (to be published by the Cato Institute in 2010). The book examines the Supreme Court’s early-20 th-century liberty of contract jurisprudence, tracing its origins (in well-established principles of constitutional law), its heyday during the so-called “Lochner era,” and its demise to the emergence of the post-1937 “double standard” in constitutional law.

“During the Lochner era, the Court protected various aspects of liberty, including not only economic freedom, but also other aspects that today would be regarded as ‘personal’ freedom,” explained Professor Mayer. “It protected not just the wealthy or powerful but also relatively powerless individuals and members of minority groups. Those largely forgotten, aspects of the Court’s Lochner era jurisprudence include the origins of what is today known as ‘the right of privacy.’”

Professor Mayer is the author of The Constitutional Thought of Thomas Jefferson as well as articles appearing in several journals.  A former Salvatori Fellow at the Heritage Foundation, he also serves on the advisory board for the Buckeye Institute for Public Policy Solutions and is a member of the fellowships Academic Review Committee for the Institute for Humane Studies.  During the summer of 2009, he is a Visiting Scholar at the Social Philosophy and Policy Center at Bowling Green State University in Bowling Green, Ohio, where he is writing Freedom's Constitution, a book on the U.S. Constitution.   Professor Mayer teaches courses in Constitutional History, Copyright Law, Law and American History, Legal History, Unfair Trade Practice, and a seminar in Libertarianism and the Law.