Barry Cushman (Notre Dame Law School) has posted The Place of Economic Crisis in American Constitutional Law: The Great Depression As a Case Study (Forthcoming, Liberal Constitutions in Financial Crises, Tom Ginsburg, Mark Rosen, & Georg Vanberg, eds., Cambridge University Press, 2019) on SSRN. Here is the abstract:
This chapter considers the role that conditions of economic crisis might have played in cases involving judicial review of economic regulation decided by the Supreme Court of the United States between March of 1932 and June of 1937. Part I conducts a general examination of the possibility that contemporary economic conditions may have operated as an exogenous variable inducing the justices to uphold challenged regulations. Part II explores the extent to which underlying economic conditions might have operated as an endogenous variable that was relevant to analysis of whether particular regulatory measures could be supported by existing constitutional doctrine. An Appendix plots the timeline of cases involving constitutional challenges to ameliorative legislation against a variety of contemporary economic indicators.
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