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Boston University School of Law




Professor Lynn Baker's contribution to this symposium' extends her longterm project both to defend and to critique the Supreme Court's decisions on the scope of congressional power.2 I find this work valuable and not a little provocative. If Baker's account of the decisions thus far is even partly right, the Court is poised to assume decision-making responsibility that has long been ceded to Congress. If her proposals for the future are adopted, we are in for a cataclysmic constitutional event that rivals the convulsive period when the nation confronted the judicial arrogation of authority associated (rightly or wrongly) with the decision we're here to remember: Lochner v. New York.3 Concomitantly, we are faced with the same methodological masks the Lochner Court wore to conceal what it was actually about. With a few notable exceptions, the modem Court has revealed no inclination routinely to superintend state regulatory policy.



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