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.
Issue 6
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.
Is OSHA Unconstitutional?
Under the Occupational Safety and Health Act, the Secretary of Labor is authorized to issue whatever standards are reasonably necessary or appropriate to provide safe or healthful places of employment. More than any other provision in federal regulatory law, this language is subject to a plausible nondelegation challenge, because it seems to ask the Secretary to choose among a wide array of intelligible principles for standard-setting. The constitutional challenge raises serious and unresolved questions for both regulatory policy and administrative law. In answering those questions, courts have three principal alternatives. The most aggressive approach would be to invalidate the statute in the hopes of encouraging, for the first time, sustained legislative deliberation about the proper content of occupational safety and health policy. The most modest approach, rooted in the Avoidance Canon, would be to construe the statutory language to produce floors and ceilings on agency action; that approach would require the Secretary to ban significant risks while forbidding the Secretary from regulating trivial or de minimis risks and also requiring the Secretary to show that any regulations are feasible. The third and preferable approach, also rooted in the Avoidance Canon, would be to construe the statute so as to require the agency to engage in a form of cost-benefit balancing. Such a construction would have the advantage of promoting greater transparency and accountability at the agency level. At the same time, it would raise difficult questions about the precise nature of such balancing in the context of occupational safety policy and also about legal constraints on agency assessment of both costs and benefits. Because of the distinctive nature of workplace safety, the best approach would give the agency considerable flexibility on questions of valuation while also permitting serious attention to distributional factors.