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Samuel Bagenstos, University of Michigan In the early 20th century (the “Lochner era”), courts invalidated numerous labor and employment laws for violating a supposed constitutional “freedom of contract.” The Lochner-era decisions rested on a key premise—that workers and employers were equally free to enter into bargains, or not enter into bargains, with each other. Most lawyers think that the courts killed off Lochner during the New Deal. But Lochner’s principles have persisted—not in constitutional law, but in the law of labor and employment. Key foundational doctrines of labor and employment law continue to rest on the premise of equal bargaining power. And the Roberts Court has increasingly relied on the same premise in a series of anti-worker opinions. That premise has significant, concrete, and insidious consequences. Like the old Lochner, it operates to deprive workers of the rights they won in political battles. This paper demonstrates that Lochner never truly died. It just shape-shifted.


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