Date Change For Section Annual Meeting/CLE

Due to a conflict with two CLE programs, the Constitutional Rights and Responsibilities Section is moving the date of its Annual Meeting and CLE from Jan. 13, 2017 to Feb. 9, 2017.  The CLE will focus on HB2 and the legal challenge to that bill, including its impact on employment law related issues as well as an analysis and discussion of the litigation resulting from the bill.  We apologize for any inconvenience with regard to the change of date and hope to see you on Feb. 9, 2017.

Economic Liberty Challenges In the 21st Century

By Drew Erteschik and J.M. Durnovich



Most of us left law school with the understanding that so-called “economic liberty” challenges to state regulations will generally fail under rational basis review.  That area of the law, however, has changed dramatically.

This article looks at the change in three parts:


The first part offers a brief refresher on the history of economic liberty challenges in the 20th century.

The second part describes a flurry of recent cases involving successful economic liberty challenges on substantive due process grounds.

The third part examines some possible legal and policy explanations for the modern trend.

20th Century Views

In 1905, the U.S. Supreme Court decided Lochner v. New York, a case that considered a state law capping the maximum hours for bakery employees.[1]  The Court struck down the law on the grounds that it violated the “right of an individual to be free in his person and in his power to contract in relation to his own labor.”[2]  Over the next thirty years—the “Lochner era”—the Supreme Court struck down a number of state laws that infringed upon economic liberty rights.[3]

The Lochner era, however, was short-lived.  Headlined by the Court’s decision in U.S. v. Carolene Products, the Great Depression ushered in the post-Lochner era—a time when the Court established a presumption of constitutionality for state regulations.[4]  Most scholars attribute the shift to non-jurisprudential reasons:  If President Roosevelt’s New Deal was to survive constitutional challenges, the Court needed to dilute Lochner’s potency.[5]

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The Chair’s Comments: An Exciting Course For the Year

By Robert M. Ward

I am honored to serve as chair for the 2016-2017 term. Let me begin by thanking Trey Allen for his outstanding job as our chair during the 2015-2016 term. Under Trey’s leadership we had a budget carryover, which was put to good use by Law Related Education. Additionally, as reported in the spring issue of The Constitutionalist, our membership increased more than 8 percent over the past year.

Our kickoff council meeting was held on Aug. 18, 2016, at the Bar Center. Jay Ferguson of Thomas, Ferguson & Mullins of Durham provided an excellent presentation: “Eighth Amendment: Evolving Standards of Decency to Eliminate the Death Penalty.” His presentation was quite informative and precipitated a lively discussion among the members of the council. To those of you who may be interested, Jay has agreed to share his Power Point presentation.  If you would like a copy, please contact him at:

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