At the turn of the nineteenth century, the US Supreme Court established and reinforced numerous so-called "economic rights." During the Lochner v. New York era, the Court invalidated almost 200 federal and state economic and labor regulations for interfering with the right to contract and for violating substantive due process. In 1937, however, Justice Stone's famous "footnote four" in United States v. Carolene Products Co. closed the coffin on Lochner. After Carolene Products, the Court stopped applying heightened scrutiny to economic legislation, and it began consciously protecting "discrete and insular minorities." Here, Dodrill explains the Lochner-era Supreme Court's standard of review through an analysis of land-regulation cases decided between 1909 and 1937. He also describes the approach taken by the Court after Carolene Products, between 1937 and 1980, and demonstrates that the Court's approach did not become more government-friendly, but if anything, became more landowner-friendly.
Christopher S. Dodrill,
In Defense of “Footnote Four”: A Historical Analysis of the New Deal’s Effect on Land Regulation in the U.S. Supreme Court,
72 Law and Contemporary Problems
Available at: http://scholarship.law.duke.edu/lcp/vol72/iss1/10