Notes
Introduction
I
Smith, "The Future of Public Law Scholarship," 9 5.
2.
Slaughterhouse Cases,
16
Wallace
36 (1873);
Munn v. Illinois,
94
U.S.
113 (1877);
Mugler v. Kansas,
12.3
U.S.
62.3 (1887);
and Powell v. Pennsylvania,
12.7
U.S.
678
(1888).
3
See Chicago, Milwaukee and St. Paul Railway Co. v. Minnesota,
134
U.S.
418
(1890).
4
Pollock v. Farmers' Loan and Trust Co.,
158
U.S.
601 (1895);
In
re Debs,
158
U.S.
564 (1895);
United States v. E. C. Knight Co.,
156
U.S.
I
(1895);
Lochner v. New
York,
198
U.S.
45 (1905);
and Adair v. United States,
2.08
U.S.
161 (1908).
5
Lochner v. New York,
198
U.S.
45 (1905).
6
Swisher, American Constitutional Development,
393, 341, 510-2.1.
7
Kelly and Harbison, The American Constitution,
498, 513-15, SI8, 52.2.-2.3.
8 Among the works that followed the lead established by Holmes, Swisher, and Kelly
and Harbison: Jacobs, Law Writers and the Courts,
2.4
("The development of the
liberty of contract as a limitation upon the powers of both the state and national
governments was a judicial answer to the demands of industrialists in the period of
business expansion following the Civil War"); Haines, Revival of Natural Law
Concepts,
179-80, 2.07, 2.30-31
(discussing "judge-made constitutional doctrines
supported by the conservative groups of the country and fostered by the extreme
individualism of leaders of industry and finance"); Paul, Conservative Crisis and the
Rule of Law,
2.33, 2.37
(arguing that the Court's increasingly active conservative
jurisprudence was part of a "traditional conservatism fearful of restless majorities
upsetting the social order and the rights of property" and leading the Court to
"exaggerat[e) its powers beyond all proportion"); A. S. Miller, Supreme Court and
American Capitalism,
50, 57
(arguing that between the Civil War and the New Deal
"the High Bench, under the leadership of Justice StephenJ. Field and such luminaries
of the American bar as Roscoe Conkling, constructed principles of laissez faire and
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