The Art of Reading Lochner

Imagine a very young child, walking along a city street with her mother one night and seeing the following sight. On the sidewalk stands a young woman, chewing gum, dressed in a short skirt and skimpy blouse despite cold temperatures, and wearing high heels and heavy make-up. A car approaches, words are exchanged with the male driver; she gets in, they kiss and drive away. The mother of the small child says to her, in a tone signaling gravity, “Don’t you ever do that!” And the child knows that she never must. But as she grows up, she finds the memory to be troubling. The words of warning haunt her when she gets her first pair of high-heeled shoes. When she puts on a skirt, she hears its whisper again. When she applies her first lipstick, chews gum, waits by the road one day for a ride from a friend, rides in a car with a date, or experiences her first kiss—each of these events triggers a traumatic sense that she has disobeyed her mother’s rule. Caution drives her toward life as a lonely recluse in sensible shoes.

As the girl matures, she tries to free herself of the paralysis caused by the command of her now-dead mother. She hires investigators to discover as much as possible about that night—witness descriptions and police reports. If only she could find out more, she thinks. But as the data mount, none of these details help her. She is still paralyzed, unable to dress, to drive, to kiss, without severe anxiety and self-doubt. The girl discovers that knowing more about the night scene does not relieve her of the burden of understanding her mother’s command. She realizes that, through a failure of understanding, her mother’s admonition, which surely was made in the hope of helping the child lead a better life, has had the opposite effect of constraining her from achieving her full potential

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Freedom of Contract and the “Political Economy” of Lochner v. New York

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Wealth, Utility, and the Human Dimension