Author Archive | David Bernstein

It’s well-known that supporters of the Civil Rights Act of 1964 denounced busing and quotas, only to have the Federal Government endorse these actions in short order. I’ve recently come across other interesting “legislative intent” materials, relating to the expected impact of the Act on civil liberties. Rep. William M. McCulloch, ranking minority member of […]

not including any Justice who has served in the 21st century. My tentative vote goes to Louis Brandeis, who also wrote the most overrated dissent of the 20th century, his ridiculous pro-monopoly opinion in New State Ice v. Liebmann. But I’m open to suggestions, below. UPDATE: For a partial explanation of my nomination of Brandeis, […]

SSRN has posted my paper, Expressive Association After Dale. Here is the abstract: The right to join with other people to promote a particular outlook, known as the right of expressive association, is a necessary adjunct to the right of freedom of speech, which is protected by the First Amendment of the United States Constitution. […]

I just had a VERY pleasant customer service experience with Southwest Airlines, which is not something I can say about my interactions with most other airlines these days (of the “legacy carriers,” btw, Continental is easily the best). Just thought I’d pass it along.

It how somehow escaped my attention that the Fair Housing Center of Greater Boston sue several parties for carrying ads with phrases such as: “all of your neighbors in this loft building are professionals”; “great location for Medical area or Northeastern students”; “four bed … great for four or five people”; “owner lives in the […]

My article, Learning the Wrong Lessons from “An American Tragedy”: A Critique of the Berger-Twerski Informed Choice Proposal, forthcoming in the Michigan Law Review, is now available for download from SSRN. Comments are welcome. Here is the abstract: This paper is a critique of Margaret Berger and Aaron Twerski, “Uncertainty and Informed Choice: Unmasking Daubert,” […]

A blogger named “Mithras” several days ago posted a “Conservative Blog Taxonomy” making fun of, and criticizing, ten purportedly “conservative” blogs, including this one. In general, Yaaaawn… But Mithras’s post was linked to favorably by many others, including Atrios. Let’s consider what Mithras writes about Michelle Malkin: “Far-right affirmative action hire who is so bigoted […]

Housing stocks are getting massacred today. A good day to check out the housing bubble blog.

Two interesting headlines in the latest BNA Expert Evidence Report: (1) “Silicosis Diagnoses Were ‘Manufactured,’Court Finds, Recommends Mass Dismissal.” For more on this story, see Ted Frank’s PointofLaw entry. (2) “Suit Says Animal Tests Were Unreliable When Epidemiological Data Was Available.” A Vioxx plaintiff is arguing that Merck should not be able to rely on […]

This Washington Post article is one of many signs I’ve noticed lately that the housing bubble is beginning to burst (as it previously did in Australia and England), as I predicted back in March. Inventories are growing in other metro areas, banks have run out of creative financing options (once you’ve allowed negative equity, no […]

It’s hard to feel any sympathy for this guy, especially when, instead of apologizing, he claims he’s being persecuted for being a Native Canadian. But Canada would still be better off with more robust protection for freedom of speech. As an aside, I’ve been wondering lately whether “group libel” laws, that required proof of (a) […]

The media’s new obsession over whether John Roberts is or was a member of the Federalist Society is pretty foolish. I know members whose political views range from moderate conservatives (more moderate than, say, O’Connor or Kennedy) to Christian rightists to libertarian anarchist individualists. Judicial philosophy ranges from Borkean anti-judicial review views to Randy Barnettian […]

Two interesting items: (1) I rent a townhouse in Arlington, VA. When I rented it in June 2000, the management company held a two-hour open house, and within two days had received thirteen contracts. Five years later, with local housing prices have almost tripled, the house is back on the rental market at an 18% […]

SSRN has posted my article, “Bolling, Equal Protection, Due Process, and Lochnerphobia,” forthcoming in the Georgetown Law Journal. Here is the abstract: In Brown v. Board of Education, the United States Supreme Court invalidated state and local school segregation laws as a violation of the Fourteenth Amendment’s Equal Protection Clause. That same day, in Bolling […]

New York courts continue to be leaders in applying the Frye general acceptance test broadly to all sorts of expert testimony. While the Court of Appeals has not yet spoken, New York may be the strictest Frye jurisdiction in the country, applying Frye about as strictly as federal court apply Daubert.