Regulatory Reform: The New Lochnerism?

Abstract:     
This article explores the question of whether contemporary regulatory reformers' attitudes toward government regulation have anything in common with those of the Lochner-era Court. It finds that both groups tend to favor value-neutral law guided by cost-benefit analysis over legislative value choices. Their skepticism toward redistributive legislation reflects shared beliefs that regulation often proves counterproductive in terms of its own objectives, fails demanding tests for rationality, and violates the natural order. This parallelism raises fresh questions about claims of neutrality and heightened rationality that serve as important justifications for modern regulatory reform.

Number of Pages in PDF File: 57

Keywords: Lochner era, Lochnerism, regulatory reform, Cost-benefit analysis, environmental law, natural law, judicial activism

JEL Classification: D61, D73, I18, K32, K23, K12

working papers series