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Cass R. Sunstein, Editorial, Reply: Lochnering, 82 Tex. L. Rev. 65 (2003).

Abstract: Between 1905 and 1937, the legal culture experienced a genuine revolution. In the Supreme Court's view, the police power was sharply limited, and whatever it included, it did not include the power to require minimum wages or maximum hours. Ideas of this sort played an important role in cases striking down not only minimum wage and maximum hour laws, but a number of other measures attempting to protect workers. To say the least, Lochner's Legacy was not a work of legal history, and David Bernstein's article, "Lochner's Legacy's Legacy," is an extremely valuable addition. But his picture seems incomplete, above all because it does not adequately specify the Court's understanding of the police power. There is a close connection between that understanding and the Court's use of common law baselines to question legislation.