In Justice Breyer’s dissent in Sorrell v. IMS Health, he cited United States v. Carolene Products, a Fifth Amendment due process case from 1938, for the proposition that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators.” […]
Author Archive | David Bernstein
Rep. Lamar Smith on Bill to Repeal Federal Pot Laws
House Judiciary Committee Chairman Lamar Smith, R-Texas, said his panel would not consider it…. “Decriminalizing marijuana will only lead to millions more Americans becoming addicted to drugs and greater profits for drug cartels who fund violence along the U.S.-Mexico border. Allowing states to determine their own marijuana policy flies in the face of Supreme Court […]
Breyer Violates Godwin’s Bernstein’s Law
By David Bernstein on June 23, 2011 4:33 pm in Constitutional Law, Freedom of Speech, Rehabilitating Lochner
Back in April, I wrote, “We need a Godwin’s Law for constitutional litigation: the first side to raise Lochner, especially in a case not involving the Due Process Clause, automatically loses.” Let’s call it “Bernstein’s Law.” If Bernstein’s law was a criminal law, Justice Stephen Breyer would be going to jail for loooong time, given […]
Clinton and Weiner
I missed out on most of the Weiner controversy while on vacation. For the record, I think the whole thing was a tempest in a teapot. For that matter, I think (and thought at the time) that Congress in 1998 should have satisfied itself with a resolution criticizing Clinton’s behavior, and left it at that. […]
Enemies and Wickedness
There’s been a very interesting back and forth between Allison Benedikt, author of a rambling but widely discussed piece on her disillusionment with Israel, and Jeffrey Goldberg of The Atlantic. The most recent contribution to this exchange is here, and you can work your way backwards from there. What struck me, though, was that Benedikt’s […]
Most Academic Books are Too Long
Not in absolute length, but relative to what they have to say. A few reasons: (1) Many academic books are revised Ph.D. theses. When you write a Ph.D. thesis, one goal is to show your review panel that you have mastered the literature. The easy way to do so is to cite and discuss everything […]
Link to Glenn Reynolds’s Commentary Review of Rehabilitating Lochner
I mentioned this review before, but it was behind a paywall. It’s now available for free at this link. One line synopsis: “Bernstein … has produced a carefully researched, clearly reasoned, and ultimately powerful case that Lochner has been unjustly demonized.” And did I mention it makes a great Fathers’ Day gift (at least if […]
Conservatives’ “Advantages” in Getting Law Professor Academic Jobs
Brian Leiter: Another Advantage Aspiring Law Teachers on the Right Have Over Others It’s programs like this, which employ ideological criteria for eligibility. The American legal academy is already quite far to the right on a range of economic and policy issues by comparison to both the rest of the U.S. academy and the legal […]
Jon Stewart Teaches Donald Trump about Pizza
The Daily Show With Jon Stewart Mon – Thurs 11p / 10c Me Lover’s Pizza With Crazy Broad www.thedailyshow.com Daily Show Full Episodes Political Humor & Satire Blog The Daily Show on Facebook
Barack Obama on Lochner
In comments to some of my recent posts, some commenters have suggested that few people nowadays get especially worked up about Lochner v. New York. Rather, it’s Bush v. Gore, or Korematsu, or Citizens United, that raises hackles, with Lochner seen perhaps as a quaint anachronism with little modern relevance. I agree that over time, […]
Why So Much of Academic Writing is Virtually Unreadable
It’s because of writing like this, which I just came across in a book review: The NewYork hustler was both homosexual object-choice and heterosexual subject par excellence; he moved between illicit same-sex activity and “legitimate” society in a manner that destabilized the gay world-making ethos of lesbian and gay apologists and, I presume, distressed the […]
Commentary Reviews Rehabilitating Lochner
The review is by Instapundit’s Glenn Reynolds, and it starts like this: With the possible exception of Plessy v. Ferguson, which gave us the racial doctrine of “separate but equal,” the case of Lochner v. New York stands as the most reviled decision of the post–Civil War Supreme Court. As every law student knows, Lochner […]
Enemies
I’ve been thinking for some time about blogging about the concept of “enemies”, and how modern universalist liberalism has trouble dealing with the possibility that in some conflicts there is no mutually acceptable solution (at least not from the subjective perspective of the participants in the conflict), and thus one really has a conflict among […]
Egypt Opens Border with Gaza
I’m not going to discuss the moral, legal, or diplomatic implications of this move. But I do recall (though I don’t have links handy) that various “human rights” activists have been claiming since Israel’s withdrawal from Gaza that Israel was nevertheless “occupying” it via a blockade. Moreover, even if the blockade didn’t amount to an […]
My Posts at the Legal History Blog
As part of my guest-blogging, I discuss getting a legal history job at a law school, what legal historians can gain by engaging with economics, company towns, legal history, and economics, myths and facts about Lochner v. New York, and myths about early 20th century Progressive jurists.