Worse than Lochner?

Access to Care, Access to Justice: The Legal Debate over Private Health Insurance in Canada, C. Flood, K. Roach, L. Sossin, eds., University of Toronto Press, pp. 75-100, 2005

28 Pages Posted: 23 Aug 2006 Last revised: 11 Sep 2017

See all articles by Sujit Choudhry

Sujit Choudhry

Center for Constitutional Transitions; Center for Global Constitutionalism, WZB Berlin Social Science Center

Date Written: 2005

Abstract

Chaoulli struck down Quebec’s ban on private health care insurance, a core design feature of Canada’s most cherished social program, Medicare, and could fundamentally reshape health care delivery to tens of millions. Approaching Chaoulli through the lens of Lochner yields a number of critical insights. If we want to understand Chaoulli better, it would pay dividends to grapple in more detail with the Lochner metaphor. And since Lochner has multiple and divergent meanings — standing for judicial activism and economic libertarianism — the real issue is not why Lochner matters, but how it matters. Some of Lochner ’s meanings are more apposite than others in shedding light on Chaoulli. But taken together, they should give us considerable pause for concern. To equate a case with Lochner is about the worst insult a constitutional lawyer can make. As we shall see, Chaoulli may be even worse than that thoroughly discredited judgment.

Keywords: Constitutional Law, Comparative Law

Suggested Citation

Choudhry, Sujit, Worse than Lochner? (2005). Access to Care, Access to Justice: The Legal Debate over Private Health Insurance in Canada, C. Flood, K. Roach, L. Sossin, eds., University of Toronto Press, pp. 75-100, 2005. Available at SSRN: https://ssrn.com/abstract=925937

Sujit Choudhry (Contact Author)

Center for Constitutional Transitions ( email )

HOME PAGE: constitutionaltransitions.org

Center for Global Constitutionalism, WZB Berlin Social Science Center ( email )

Reichpietschufer 50
D-10785 Berlin, 10785
Germany

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