Choice of Law, the Constitution, and Lochner

74 Pages Posted: 4 Apr 2015 Last revised: 6 Apr 2017

Date Written: April 1, 2008


The rise and fall of robust constitutional constraints on state conflict-of-laws rules coincided with the beginning and end of the so-called Lochner Era in Supreme Court history. This article takes a fresh look at the Lochner Court’s “liberty-of-contract” decisions and proposes a significant qualification to the conventional narrative of this period in constitutional history. Nearly half of these cases actually dealt with what were essentially conflict-of-laws issues. They articulated the boundaries separating the legislative jurisdiction of different states, rather than the more absolute prohibitions on state regulatory power at issue in cases like Lochner itself. The article then suggests that these conflicts decisions primarily rest upon traditional ideas of territorial sovereignty and conceptualist legal reasoning, rather than a clear preference for laissez-faire economics. Contemporary critics of Lochner-style substantive due process decisions did not have similar objections to the Court’s approach in the conflicts cases: Oliver Wendell Holmes played a leading role in developing both the theory and doctrines used to decide the cases, while Louis Brandeis worked within the existing framework without any apparent qualms, adapting it to accommodate the needs of new forms of social legislation. In contrast to the conventional story of Lochner, the eventual repudiation of these constitutional conflict-of-laws constraints by the New Deal Court was less a matter of shifting political outlook than a reflection of changing conceptions of law inspired by Legal Realism. Ironically, Legal Realism itself made it harder to appreciate the role of its own influence on legal decisions, as compared to externalist explanations focusing on political preferences. 

Keywords: Conflict of laws, choice of law, legislative jurisdiction, constitutional law, constitutional history, formalism, territorialism, legal realism, substantive due process, liberty of contract, Lochner, Beale, Brandeis, Stone, vested rights

Suggested Citation

Stern, James, Choice of Law, the Constitution, and Lochner (April 1, 2008). 94 Va. L. Rev. 1509 (2008), William & Mary Law School Research Paper No. 09-301, Available at SSRN:

James Stern (Contact Author)

William & Mary Law School ( email )

613 S. Henry Street
Williamsburg, VA 23185
United States
757-221-1341 (Phone)


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