Nila M. Merola

Document Type




This Note argues that, despite its notorious reputation as the case that permitted and encouraged judicial usurpation of the states’ inherent police powers, a return to a Lochnerian level of review of economic legislation is appropriate when state or local legislatures pass laws that substantially impair public sector labor contracts. Part I briefly recaps the Lochner era, beginning with an overview of Lochner itself and culminating in a brief discussion of the criticisms of Lochner. Part II introduces the Contract Clause and demonstrates that the contemporary test for determining whether there has been a Contract Clause violation is similar to the Lochner Court’s analysis for whether the Fourteenth Amendment’s substantive due process guarantee of liberty of contract had been violated.

Part III reveals that Lochner’s legacy may positively live on by protecting public sector employees from substantial contractual impairments, despite the nefarious connotation of the “Lochner” name. First, through an in-depth review of two cases, Fraternal Order of Police v. Prince George’s County and Buffalo Teachers Federation v. Tobe, Part III shows that courts struggle and vary with the amount of deference owed and given to state legislatures. Additionally, Part III illustrates that, without strict scrutiny, courts may be reluctant to find contract-impairing laws in violation of the Contract Clause, leaving public sector employees unprotected from unconstitutional state legislation. In light of the tumultuous economy and the states’ increasing resort to furloughs and wage freezes to close budget gaps, Part III concludes with a call to the courts to responsibly use the power that they wield and place a limit on the states’ “unbounded power . . . where legislation of this character is concerned, and where the protection of the Federal Constitution is sought.”



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