Wednesday, November 19, 2008

Konar-Steenberg on Hood & Sons v. Dumond

Mehmet K. Konar-Steenberg, William Mitchell College of Law, has posted One Nation or One Market? Liberals, Conservatives, and the Misunderstanding of H.P. Hood & Sons v. Dumond, which is forthcoming in volume 10 (2009) of the University of Pennsylvania Journal of Constitutional Law. Here is the abstract:
Forty years ago, in a dormant Commerce Clause dispute over dairy regulation, Justice Robert Jackson wrote what many regard as the strongest post-Lochner ode to laissez faire economics in the Court's modern jurisprudence. Yet this standard reading of the majority opinion in H.P. Hood & Sons v. DuMond presents certain puzzles: Why would an icon of Roosevelt's New Deal write an anti-regulation manifesto, as some of his New Deal contemporaries on the Court alleged? And why would recent conservative justices echo these liberals' attacks on this supposed laissez faire streak in dormant Commerce Clause anti-discrimination doctrine? Inspired by these puzzles and recent developments under the Roberts court, and relying on historical materials including Jackson's own papers, Professor Konar-Steenberg argues that Hood has been misunderstood and misinterpreted for four decades. Jackson's liberal contemporaries misunderstood Hood to revive Lochner-era economic substantive due process under a new constitutional guise. More recently, conservative jurists have misinterpreted Hood as a laissez faire precedent in order to discredit the opinion because it hinders their project of revitalized state power.
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1 comment:

Shag from Brookline said...

I enjoyed this article. The author makes a valuable point in footnote 54 concerning Jackson's use of the phrase "Federal free trade unit" rather than "Federal economic unit" that Jackson had considered. "What seems most significant about these revisions is the consistent emphasis in both alternatives on the 'Federal' character of the economic entity, reinforcing the notion that the market is not 'free' in the classical laissez faire sense but rather 'free' in the Progressive or New Deal sense of being preserved by governmental regulation."

Unfortunately, when references are made to "free trade" or "free market" whether by scholars, economists, politicians or pundits, there is no accompanying definition of such terms such that the reader injects his own ideology.