The rise and fall of constitutional limits on state choice of law coincides almost perfectly with the so-called Lochner era in Supreme Court history and the connection is by no means accidental. This Note reveals that nearly half of all of the decisions in which the Court used “liberty of contract” reasoning to invalidate state or federal action—including the very first case to do so—dealt not with fundamental economic rights but with choice of law issues. After explaining how the Court’s choice of law doctrines worked, this Note concludes that for the most part they are not susceptible to the traditional criticisms of Lochner. This Note also concludes, however, that although Lochner may not teach us about the choice of law cases, the choice of law cases may help us better understand Lochner. Notions of consent-based political obligation evident in the choice of law cases can reconcile competing interpretations of the Lochner Court’s more controversial substantive due process decisions, while the embrace of legal realism that led the Court in the 1930s to discard its choice of law doctrines suggests that nonpolitical explanations for the abandonment of “Lochnerism” have been underappreciated in accounts of the New Deal Era Constitutional revolution. Choice of law theorists and legal historians alike would do well to revisit the complexities of the Supreme Court’s now-forgotten attempt to address the constitutional limits on the reach of state laws.
Note
Destabilizing Discourses: Blocking and Exploiting a New Discourse at Work in Gonzales v. Carhart
The purpose of this Note is to identify and analyze the interrelated discourses at work in Gonzales v. Carhart, focusing on the woman-protective discourse, in order to reveal the discourse’s origins, expose its manipulations of Casey’s undue burden test, and identify its strengths and weaknesses. Part I of this Note defines and describes the discourses at work in Gonzales, focusing on the cumulative work these discourses perform together and noting a meaningful series of shifts over time. Part II analyzes the woman-protective discourse in a variety of ways in order to draw out its assumptions, expose its historical predecessors, and outline exactly how it has manipulated the undue burden test. Part III examines ways in which this discourse can be resisted, using more traditional feminist methods, as well as ways in which it can be exploited to destabilize the undue burden test and promote women’s autonomy in non-abortion contexts.
Reviewing Premarital Agreements to Protect the State’s Interest in Marriage
Courts and commentators have struggled with the question of whether substantive review of premarital agreements is necessary and, if so, why. Those who eschew substantive review generally equate it with legal paternalism. To the extent that the justification for substantive review rests on notions of cognitive limitations and bounded rationality, it is subject to the criticisms of legal paternalism in general.
Stronger support for substantive review can be found in notions of the public interest in marriage. Furthermore, a focus on the state’s interest in marriage would enable lawmakers to more narrowly tailor the scope of review to protect that interest without unnecessarily infringing on the freedom to contract. The question of the state’s interest in marriage can be defined prospectively and in more concrete terms than the question of whether the parties made a rational decision.
This Note begins by reviewing the historical and current status of premarital agreements concerning the division of property and provision of support following divorce. An analysis of recent court decisions and legislation reveals the extent to which the law continues to monitor the substantive fairness of premarital agreements. Next, the Note examines the arguments for and against paternalism in the premarital context by reviewing recent scholarship on behavioral decision theory. It concludes that procedural safeguards can adequately protect against irrational decisionmaking. Finally, the Note looks at the state’s interest in marriage, how premarital agreements implicate that interest, and ways to efficiently protect that interest.