A prominent constitutional law professor recently suggested to me that I was grossly unfair to Justice Breyer in the following paragraph at the end of Chapter 7 of Rehabilitating Lochner: Nevertheless, and despite the flood of serious revisionist scholarship, Lochner is still primarily used as a symbol of one’s jurisprudential opponents’ perceived faults. Justice Antonin […]
Author Archive | David Bernstein
New Dean at Northwestern U. Law School
Congratulations to Daniel Rodriguez, a professor at University of Texas and former dean at the University of San Diego Law School, who will become dean at Northwestern starting on January 1, 2012. And congratulations to Northwestern for landing Rodriguez. I’ve only met him once, I think, but my friends at USD always speak highly of […]
Jews, Labor Laws, and Poland before World War II
Let’s say I wrote a book that had the following thesis: (a) Governments tend to favor those with political power; (b) before World War II, Jews in Poland had little political power; and (c) therefore, various labor regulations enacted in Poland between 1920 and 1938, tended at best not to take the interests of Jews […]
Complements to Rehabilitating Lochner
A reader emailed to say he enjoyed Rehabilitating Lochner, and wonders if I could recommend additional books on the same or closely related topics. Okay. Just note that my recommendation doesn’t necessarily constitute an endorsement of the author’s conclusions. David Mayer, Liberty of Contract: Rediscovering a Lost Constitutional Right. Very recent, and covers some of […]
For Intellectual-History-of-Originalism Buffs
Over at the Legal History Blog, Ken Kersch has two posts on the influence, or lack thereof, of William Crosskey, a law professor at the University of Chicago from 1935 to 1968 (post 1 and post 2). As Kersch points out, Crosskey was one of the first modern-day “originalists,” and he may (or may not) […]
Follow Up on Breyer Op-ed
My co-authored op-ed on Justice Breyer’s jurisprudence has stirred a bit of controversy. The basic point of the op-ed is that, as political scientist Ken Kersch puts it in a great scholarly review of Breyer’s book “Active Liberty”, Breyer’s intellectual roots are less in the sort of modern liberalism that animated the likes of William […]
Oliver Wendell Breyer
My former student Josh Blackman and I published an op-ed in the Newark Star-Ledger today. As usual, the editors changed the title and also shortened the piece. Josh has posted the original version over at Concurring Opinions. Here’s an excerpt: Contrary to American tradition going back to the Declaration of Independence, Justice Breyer believes not […]
GOP and Israel
A piece today by the Washington Post’s Glenn Kessler on GOP presidential candidate’s rhetoric on Israel starts with a mistaken premise: that the candidates are taking a hard-line pro-Israel position in the hopes of winning Jewish votes. There are very few Jewish Republican primary voters [and especially few in Iowa and New Hampshire]–the only voters […]
Decoys to Deter Attacks on Jews in Europe
My wife and I recently got into a conversation with a man sitting next to us in the lounge of the Barcelona Hilton. It turns out that he runs kosher tour groups from France to the rest of Europe, and was checking out the Hilton because it was across the street from the Barcelona Chabad […]
European Pro-Palestinian Activists Have anti-Semitic Spokesman, Mazin Qumsiyeh
Hundreds of European pro-Palestinian activists are converging on Israel, creating a security (and potentially a p.r.) headache for Israel. Tellingly, the spokesman for this “Welcome to Palestine” provocation is one Mazin Qumsiyeh. Given all the attention the media is providing these activists, it seems worth repeating the following from post of mine from a few […]
Lochner and Child Labor Laws
One of the great oddities of discussions of Lochner v. New York is that the case consistently gets blamed for interfering with child labor laws. A few examples: After discussing Lochner’s support for freedom of contract, a public policy textbook by Professor Thomas A. Birkland states that “even the most basic child labor laws were […]
Cheap Beach Reading and an Interesting Pricing Model
Ebooks are not exactly new, but University of Chicago Press seems to be experimenting with an interesting pricing model for some of its ebooks, including mine. You can buy the ebook for $45, the same as the retail price of the book, or you can buy a 30-day license of the ebook for only seven […]
Claeys on Obamacare and the Limits of Judicial Conservatism
By David Bernstein on June 27, 2011 7:08 pm in Constitutional Law, Constitutional Theory, Health Care
My colleague Eric Claeys has a very interesting piece in National Affairs. The hook is the future USSC decsion on Obamacare, but the meat of the piece is an explanation of the divergent strands of modern constitutional conservatism: To understand contemporary “judicial conservatism” and its ambiguities, it is helpful to describe it as a series […]
Gerber on Bernstein
ONU lawprof (and leading legal historian) Scott Gerber, himself the author of an important new book on the rise of the independent judiciary, reviews Rehabilitating Lochner for Eh.net. The punchline: “Rehabilitating Lochner is intellectual history in its highest form…. Bernstein has done nothing less than explode the myth of Lochner…. This is a book that […]
A Nightmare Justice
Imagine a twentieth century Justice who was a Social Darwinist; who had a self-proclaimed disdain for facts, and who often substituted flip aphorisms for legal analysis; who was the most hostile Justice of the century to the rights of African Americans, dissenting even in cases invalidating peonage laws as violations of the Thirteenth Amendment; who […]