Author Archive | David Bernstein

The Great Latke-Hamantash Debate from University of Chicago Press, recounting a debate at University of Chicago going back sixty years. But what of sufganiot, a traditional mizrahi/sephardic treat? This whole debate strikes me as Eurocentric.

Tomorrow, I will be debating Professor Sam Bagnestos at Washington University Law School: “Resolved: Antidiscrimination Laws are a Threat to Civil Liberties.” The debate, sponsored by the Wash. U. Federalist Society and ACLU, will be held at 2:00 p.m., and is free and open to the public. Also, I’ll be speaking Friday at the Washington […]

Check out Jack Balkin’s very interesting post on the implausibility of the Supreme Court adopting anything remotely resembling consistent originalism with regard to federalism (or anything else) any time in the near future. I agree with much of what Jack says, with two caveats: (1) if the Republican Party had shown a continued interest in […]

Excellent coverage over at PointofLaw.

and win the respect of the general public, besides. As we all know, Congress has been on a pork spree, such as the infamous Alaska “bridge to nowhere.” This is where the Bush Administration comes in. To spend money on blatantly wasteful projects like the bridge to nowhere is not only bad policy, it’s contrary […]

I’m working on a paper on the admissibility of expert testimony, and I’ve noticed a disturbing trend: courts that want to admit questionable expert testimony frequently cite permissive-sounding language from the 1993 Supreme Court Daubert opinion. Daubert was indeed a rather ambiguous opinion, and could indeed provide comfort to judges who want to shirk their […]

Randy’s post reminded me that I’ve been wanting to note that conservative judicial originalism is currently in a state of crisis, precisely because of Justice Scalia’s “fainthearted” originalism. If Justice Scalia, originalism’s supposed great champion, is unwilling to overturn or even go out of his way to distinguish as anti-originalist opinion as Wickard v. Filburn […]

Virtually lost in the hullaboo over the Alito nomination is the Court’s grant of cert. yesterday in two Confrontation Clause cases. Unfortunately, we won’t be able to follow the action on the Confrontation blog because the blog’s author, my Michigan colleague Rich Friedman, is counsel for one of the petitioners, and thus, as he says, […]

I attended Yale Law School from 1988-1991, and the atmosphere of political correctness, enforced via social sanction (e.g., one could get socially ostracized by a significant segment of your classmates for a host of pecadillos, such as referring to a very young woman as a “girl,” or, worse yet, arguing in Contracts class that Williams […]

I know I’m treading on thin ice reprinting humor about Catholics, but I found this to be funny, and assume it’s meant affectionately (via Benedict Blog). Top ten changes the Catholic majority will make at the Supreme Court (see above link for full list): 9) Oral arguments in Latin; 7) Collections between each session of […]

Just got off the phone with someone who knows Alito well, and whose perspective I value. Alito, according to him, is “really nice”, with a “reserved” personality. Unlike Scalia, there is nothing acerbic about Alito, and his questioning in oral argument tends to be minimal but penetrating. There is “no way” he will become another […]

There will be, if Alito is confirmed. This is an extraordinary development. It was, let’s recall, only forty-five years ago that JFK’s Catholicism was a major issue in a presidential campaign. As Ken Kersch and Philip Hamburger have shown, anti-Catholic sentiment played a large role in the development of modern establishment clause jurisprudence (in part […]

In yet another ridiculous civil jury verdict, a New York jury held that the Port Authority of New York was 68% responsible for the (first) bombing of the World Trade Center, and the terrorist perpetrators of the bombing were only 32% responsible. To be blunt: the jurors blatantly disregarded the law (and common sense) to […]

Via the Supreme Court Nomination Blog, I’ve come across Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001): “There is no categorical ‘harassment exception’ to the First Amendment’s free speech clause…. When laws against harassment attempt to regulate oral or written expression on such topics, however detestable the views expressed may […]

Like Orin and Eugene, I’m an admirer of Judge McConnell. Among other things, he once offered a seminar at the University of Chicago on “Economic Liberties and the Constitution.” I have no idea what his views are on such issues (I’m recalling, from seeing his syllabus many years ago, that the seminar discussed Lochner, commercial […]