of Lochner:. Morton horwitz tells us that as contract law had become more formalized and generalized after the Civil War, the legal rules came to bear a more and more tenuous relationship to the actual intent of the parties 26 Instead, judgments in common law courts came to" depend upon the notions of the court as to policy, welfare, justice, [and] right and wrong 27 As Cass Sunstein explains, it was the law that"created property and contract rights, and... imposed various limits on those rights. 8 The so-called"free market "was a creation of law, not of nature, and"the common law could not be considered as a natural or unchosen baseline 29 Thus Lochner's defense of the common law as private law was indefensible, and eventually came to be recognized as such 0 Contract and property law are no more neutral, private, or pre-legal than statutory law My point is not that a legal regime should not include a bundle of common law entitlements The point here, rather, is that these rights are not best perceived as natural, pre-legal, or non-political but rather should be recognized as tools to be utilized for the furtherance of social good, however defined. The language of rights may be used as a descriptive matter, but such language is out of place in a normative discussion. One cannot justify the present make- up of corporate law as non-political or ald justi law itself as non-political or pre-legal. The corporate law scholars who make this mistake are thus 26Horwitz, supra note 18, at 35 Horwitz, supra note xx, at 35(citing Arthur L. Corbin, Offer and Acceptance, and Some of the Resulting Legal Relations, 26 YALE L J. 169, 206(1917)). See also Oliver W. Holmes, Jr, The Path of the Law, 10 HARV. L. REv. 457, 466(1897)(Why do you imply [a condition in a contract]? It is because of some belief that as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of exact logical conclusions. Sunstein, supra note [ The Partial Constitution), at 50 30 See gEoFfrey STone, ET AL, CoNSTITUTIONAL LAW 739(1986)(Lochner" turned on an indefensible distinction between the public andprivate spheres, defined in terms of common law categories.)26Horwitz, supra note 18, at 35. 27Horwitz, supra note xx, at 35 (citing Arthur L. Corbin, Offer and Acceptance, and Some of the Resulting Legal Relations, 26 YALE L.J. 169, 206 (1917)). See also Oliver W. Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 466 (1897) (“Why do you imply [a condition in a contract]? It is because of some belief that as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of exact logical conclusions.”). 28Sunstein, supra note __ [The Partial Constitution], at 50. 29Id. 30See GEOFFREY R. STONE, ET AL., CONSTITUTIONAL LA W 739 (1986) (Lochner “turned on an indefensible distinction between the ‘public’ and ‘private’ spheres, defined in terms of common law categories.”). 7 of Lochner. Morton Horwitz tells us that as contract law had become more formalized and generalized after the Civil War, “the legal rules came to bear a more and more tenuous relationship to the actual intent of the parties.”26 Instead, judgments in common law courts came to “depend upon the notions of the court as to policy, welfare, justice, [and] right and wrong.”27 As Cass Sunstein explains, it was the law that “created property and contract rights, and . . . imposed various limits on those rights.”28 The so-called “free market” was a creation of law, not of nature, and “[t]he common law could not be considered as a natural or unchosen baseline.”29 Thus Lochner’s defense of the common law as private law was indefensible, and eventually came to be recognized as such.30 Contract and property law are no more neutral, private, or pre-legal than statutory law. My point is not that a legal regime should not include a bundle of common law entitlements. The point here, rather, is that these rights are not best perceived as natural, pre-legal, or non-political, but rather should be recognized as tools to be utilized for the furtherance of social good, however defined. The language of rights may be used as a descriptive matter, but such language is out of place in a normative discussion. One cannot justify the present make-up of corporate law as non-political or pre-legal because it is based on common law principles any more than Lochner could justify common law itself as non-political or pre-legal. The corporate law scholars who make this mistake are thus