Barry Cushman


commerce clause, legal history, franklin delano roosevelt, jurisrprudence


In this article on constitutional development and the New Deal Court. Professor Cushman argues that the conventional story of the Court's radical reversing of its jurisprudence in the face of the Court-packing plan is misconceived. The article instead seeks to demonstrate that Jones & Laughlin, one of the cases comprising the Constitutional Revolution of 1937 was conceptually, stylistically, and doctri- nally congruent with the Court's contemporary jurisprudence. The paradigm shift in commerce clause jurisprudence, Professor Cushman contends, came not in 1937, but in 1941 and 1942, after Roosevelt had had an opportunity to refash- ion the Court with a new generation of legal thinkers.

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