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Abstract

“The sharp rightward shift in land use law, and particularly in ‘takings’ jurisprudence, in the 1980s prompted anguished responses from advocates of government regulation who characterized the trend as a ‘return to the good old days of Locke and Lochner,’ ‘the Reagan Revolution's Lochnerian [r]eturn,’ ‘a revival of decisions like Lochner,’ ‘origins [in] the set of beliefs associated with the Lochner era,’ and ‘Back to the Future: From Nollan to Lochner.’ Critics were reacting in particular to an ominous alignment in the constitutional heavens: a constellation of United States Supreme Court decisions restricting the ability of state and local governments to regulate the uses of private property, and a flurry of books giving scholarly underpinnings to ‘New-Right’ constitutional takings theory. No longer deferring to the presumed validity of police power regulations, the Court seemed to signal a new era of strict scrutiny of zoning laws and environmental controls and, more troubling to state and local officials, to open the way for landowners to claim compensation, under certain conditions, for ‘regulatory takings.’ To many critics, ‘it seemed as if the Court were bent on turning the clock back to the days when the judiciary had been a guardian of economic laissez-faire. In the words of one commentator, ‘[a]ll the New-Right judges want...is to return to the Lochner tradition, perhaps mildly modified.’ Lochner v. New York is a decision so famous that it, together with its derivatives Lochnerism and Lochnerian, has passed into the English language as an epithet, a shorthand reference to a brand of judicial activism more concerned with private property rights than with the public interest. Decided in 1905, it is generally held to symbolize an era of pro-business, anti-regulation decisions stretching from the 1897 case of Allgeyer v. Louisiana to the 1937 case of West Coast Hotel v. Parrish and the famous footnote 4 in United States v. Carolene Products Company of the same year.” “The characterization of the recent shift in land use law as Lochnerian, however, is inaccurate, particularly in its implication that the jurisprudential root of state regulation of private property is found in Lochner. Despite the infamy of the case, the social vision ascendent in 1905 in relation to land use controls was not that of Lochner, but of a much less well-known case, Tenement House Department of New York v. Moeschen. While Lochner concerned the power of the state to regulate private contracts Moeschen dealt directly with state regulation of private property under the police power. It is Moeschen that more accurately illuminates the social climate of 1905 in relation to land use controls.” “Moeschen offers some striking parallels between yesterday's tenement house legislation and present-day land use and environmental controls. It demonstrates that what we see today as ‘traditional’ exercises of the police power were, in their day, questions as troubling as today's wetlands regulations or logging moratoriums. And in showing how a ‘Lochner-era’ judiciary was brought to validate, unanimously, an egregious interference with marketplace economics, it suggests that the same may be possible regarding land use questions with a ‘New-Right’ judiciary. To get at the meaning of Moeschen and to understand the social vision it illuminates, however, one needs to get behind the printed case report. It is the case itself—the testimony, the arguments of counsel, the appellate briefs—that reveals the hammering out of doctrine.”

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