Boston University Law Review, Volume 91: Issue 5 (October 2011)

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3 Responses

  1. Joe says:

    The “Lochner” reference is getting a bit old (John Paul Stevens used it in his speech on Kelo / see USSC website) — though I’m not totally on David Bernstein’s side — but the health law article is worth reading.

  2. Joe says:

    Stevens in fact split his Lochner comparison three ways, matching O’Connor in Kelo with Harlan, the Kelo majority with Holmes and Thomas with the Lochner majority. Nice nuance.

  3. Shag from Brookline says:

    I agree with Joe that Peter J. Smith’s article is well worth reading. Smith demonstrates that federalism does not appear to be the issue with the ACA’s mandate challenge. Rather, in Part III, Smith shows that it is libertarianism that seems to be the driving force, where he ties in Lochner at the state level, in the challenge on the individual mandate at the federal level. The article is a quick read if the footnotes are not dwelled upon.