executing system that justly distributed rewards through voluntary agreement among individuals. "9 Under this conception of liberty and government neutrality, the Court struck down the New York law restricting the work hours of bakers as a violation of the right of free contract The institution of contract was seen as the legal expression of free market principles, and every interference with the contract.. was treated as an attack on the very idea of the market as a natural and neutral institution for distributing awards. 21 Much of the rights-based discourse in present-day corporate law hearkens back to Lochnerian justifications. Corporate law is private law(whether the law of property or contract), defined by common law principles, and therefore neutral. To change it is impermissible But Lochner came at the Supreme Courts"nadir of competenceand has been repudiated One of the mistakes of the Lochner-era Court was to believe that the marketplace was neutral, existing outside the realm of politics and law. 3 Even the so-called laissez-faire marketplace is shot through with government, and even the most basic common law entitlements are functions of legal rules. 4"The market status quo [is] itself a product of government choices, 2and had long been so even at the time iiD at 33 198US.at45 Horwitz, supra note 18, at 33. As history rarely falls into neat categories, it is important to note here that, while Lochner is often invoked to characterize turn-of-the-century jurisprudence, the Supreme Court was quite inconsistent in its adherence to freedom of contract even during the "Lochner era. See Aviam Soifer, The Paradox of paternalism and Laissez-Faire Constitutionalism, United States Supreme Court, 1888-1921, 5 LAW History rev. 249, 250 n 4(1987) 2 Seminole Tribe of Florida v. Florida, 517 U.S. 44, 166(1996)(Souter, J, dissenting) 2See id( Souter, J, dissenting)("It was the characteristic of the Lochner era, and its characteristic vice. that the court treated the on law background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect. 24 See CASS SUNSTEIN, AFTER THE RIGHTS REVOLUTION 41(1990) nstein, supra note 17, at 169719Id. at 33. 20198 U.S. at 45. 21Horwitz, supra note 18, at 33. As history rarely falls into neat categories, it is important to note here that, while Lochner is often invoked to characterize turn-of-the-century jurisprudence, the Supreme Court was quite inconsistent in its adherence to freedom of contract even during the “Lochner era.” See Aviam Soifer, The Paradox of Paternalism and Laissez-Faire Constitutionalism, United States Supreme Court, 1888-1921, 5 LAW & HISTORY REV. 249, 250 n. 4 (1987). 22Seminole Tribe of Florida v. Florida, 517 U.S. 44, 166 (1996) (Souter, J., dissenting). 23See id. (Souter, J., dissenting) (“It was the characteristic of the Lochner era, and its characteristic vice, that the Court treated the common law background (in those days, common-law property rights and contractual autonomy) as paramount, while regarding congressional legislation to abrogate the common law on these economic matters as constitutionally suspect.”). 24See CASS SUNSTEIN, AFTER THE RIGHTS REVOLUTION 41 (1990). 25Sunstein, supra note 17, at 1697. 6 executing system that justly distributed rewards through voluntary agreement among individuals.”19 Under this conception of liberty and government neutrality, the Court struck down the New York law restricting the work hours of bakers as a violation of the “right of free contract.”20 The institution of contract was seen as “the legal expression of free market principles, and every interference with the contract . . . was treated as an attack on the very idea of the market as a natural and neutral institution for distributing awards.”21 Much of the rights-based discourse in present-day corporate law hearkens back to Lochnerian justifications. Corporate law is private law (whether the law of property or contract), defined by common law principles, and therefore neutral. To change it is impermissible. But Lochner came at the Supreme Court’s “nadir of competence”22 and has been repudiated. One of the mistakes of the Lochner-era Court was to believe that the marketplace was neutral, existing outside the realm of politics and law.23 Even the so-called laissez-faire marketplace is shot through with government, and even the most basic common law entitlements are functions of legal rules.24 “[T]he market status quo [is] itself a product of government choices,”25 and had long been so even at the time