I’m busy today teaching two classes, but I can’t resist a quick response to Akhil’s rejoinder. First, while I have a great deal of respect for Jed Rubenfeld and Laurence Tribe, I don’t find their adoption of the “Lochner as redistribution” thesis terribly compelling. Professor Tribe’s 1972 article adopts a surprisingly sophisticated understanding of Lochner–surprising […]
Author Archive | David Bernstein
Amar on Lochner
By David Bernstein on September 12, 2012 3:04 pm in Constitutional History, Constitutional Law, Rehabilitating Lochner
Let me start by expressing my delight that Professor Amar is guest-blogging here at the VC. Akhil is clearly one of the great constitutional scholars of our time, and I have learned a great deal from his work over the years. It’s therefore with some trepidation that I engage in this blog dialogue with him. […]
The “Motch” Brothers
Geez, if you’re going to try to use a movie to lampoon a couple of famous billionaire libertarian brothers who donate lots of money to Republican political causes (among many other things), you should at least take the effort to find out that their name is pronounced like “Coke,” not like “Botch.” I thought the […]
Fisher v. Texas and the Future of Affirmative Action
By David Bernstein on September 6, 2012 9:39 pm in Affirmative Action, Fisher v. University of Texas
My contribution to Scotusblog’s symposium on Fisher v. Texas can be found here. An excerpt follows. Public debate over affirmative action revolves almost entirely around the issue of preferences for African Americans. This is not surprising, given that affirmative action was initiated in the 1960s to serve the “compensatory justice” rationale of redressing historical oppression […]
Posner on Financial Industry Deregulation, Greve on Posner
Posner: “I was an advocate of the deregulation movement and I made — along with a lot of other smart people — a fundamental mistake, which is that deregulation works fine in industries which do not pervade the economy,” he said in the appearance on Spitzer’s viewpoint.” “The financial industry undergirded the entire economy and […]
Echoes of Robert Hale
By David Bernstein on September 4, 2012 5:00 pm in Constitutional History, Constitutional Law, Constitutional Theory, Rehabilitating Lochner
Dale’s post below on Robert Delahunty’s claim that the end of slavery came at the cost of slaveholders’ freedom, and that likewise legally recognized same-sex marriage would come at the expense of the freedom of those who want to live in a society without such things, reminds me of the great Progressive legal and economic […]
My Father was a Simpleton
No, not MY father, but that’s the theme of this op-ed by one Marie Myung-Ok Lee in yesterday’s New York Times. Why, for example, was her father a dedicated Republican? “For one thing, the platform is easy to understand.” And so it continues, as she continuously portrays her dad as a simpleton to publish an […]
Whites, Blacks, and Hispanics on Various Issue
I thought this chart from a Pew Study on American politics was very interesting. (“So what are you trying to say, Professor Bernstein?” I’m trying to say that I thought this chart was very interesting.)
Which of these is a Sandwich?
In this (very critical) review of Justice Scalia’s new book, Judge Posner makes the following claim: “a hamburger is regarded as a sandwich, and also a hot dog—and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like.” Is this right? In my experience, “sandwich shops” like Corner Bakery don’t […]
Dog Whistle Politics?
What do you do when you’ve just won a hard-fought presidential primary campaign even though a huge chunk of your party preferred another candidate, you are neck and neck in the polls, people are suspicious of the strange church you belong to, and you need to sew up the white working class vote? Why of […]
Poor Coverage of the Rachel Corrie Verdict
I’ve been reading different accounts of an Israeli court’s decision to deny a judgment for Rachel Corrie’s parents. Corrie, you may remember, was the young American activist who was struck by an Israeli bulldozer in Gaza while protesting trying to prevent housing demolitions during the first intifada [UPDATE: more precisely, she intentionally went to a […]
American Academy of Pediatrics: Benefits of Circumcision Outweigh Risks
At the risk of provoking the ire of anti-circumcision zealots (you know who are), I thought I’d mention that the American Academy of Pediatrics, reversing a previous neutral stance, is now endorsing male circumcision based on a review of recent scientific evidence. I undertook a reasonably thorough review of the existing evidence myself, frankly with […]
Bleg: Refundable Fares to Europe
I’m trying to book a ticket for a relative from the U.S. to Europe, and while I have no trouble using various websites to find airfares, I can’t seem to locate an option on any of them to search only for refundable coach fares. Help, please? UPDATE: Travelocity advanced search.
Do Law Schools Consider Applicants “Holistically”?
By David Bernstein on August 24, 2012 9:05 am in Academia, Affirmative Action, Fisher v. University of Texas, Law Schools
Prof. Mike Dorf has a post at Dorf on Law describing the brief he coauthored on behalf of the Association of American Law School in Fisher v. University of Texas. The gist of the brief is that if the Supreme Court reasons that Texas may not engage in affirmative action preferences because its race-neutral ten-percent […]
The Originalist Case for UT in the Fisher Case Falls Short
By David Bernstein on August 21, 2012 10:34 pm in Affirmative Action, Constitutional History, Fisher v. University of Texas
The Constitutional Accountability Center has filed an interesting amicus brief in the Fisher affirmative action case on behalf of six prominent law professor amici. The brief tries to exploit a weakness in conservative Justices’ affirmative action opinions, which is that these Justices have almost entirely ignored the question of whether an originalist interpretation of the […]