Guess who wrote the book described in this advertising blurb: America’s Prophets: How Judicial Activism Makes America Great fills a major void in the popular literature by providing a thorough definition and historical account of judicial activism and by arguing that it is a method of prophetic adjudication which is essential to preserving American values. […]
Archive | Academia
An Example of Academic Out-of-Touchedness
The discussion of why liberal and even some conservative (see this hissy fit by Charles Fried) academics were unable to see the plausibility of the constitutional challenge to the individual mandate reminds me of an anecdote from my law school days. I was at a Federalist Society student conference chatting with a prominent professor. We […]
Why Did Legal Elites Underestimate the Case Against the Mandate?
By Jonathan H. Adler on March 30, 2012 11:53 am in Academia, Health Care, Individual Mandate, Supreme Court
Greg Sargent is one of many commentators wondering “How did legal observers and Obamacare backers get it so wrong?” I think he’s asking the wrong question. A better question to ask is: why did so many expect legal elites to have any particular insight into the current court? After all, many of the legal experts […]
The Court’s Legitimacy
Following up on Jonathan’s post below, I’m not terribly worried about warnings from the left that a ruling against the ACA will undermine the Court’s legitimacy. Who, after all, is going to lead the charge against the Court? Liberal journalists like Linda Greenhouse and Dahlia Lithwick, whose human capital is invested in covering the Court? […]
SG Verrilli Relies on the Constitution’s Preamble
In his closing remarks at today’s oral argument over the Medicaid expansion, SG Verrilli urged the Court, nothwithstanding concerns about limiting the federal government, to uphold not just the Medicaid provision but the entire ACA. His rationale was in part that the people’s democratically elected representatives, after much thought, decided that the ACA was the […]
New York Times Profile of Co-Blogger Randy
The Times has a nice front-page profile of Randy Barnett, discussing his role in crafting the challenge to the ACA. I think the reporter did miss one very important thing, though: Randy’s representation of Angel Raich in Gonazlez v. Raich. The standard view in the legal academy for many years has been that Congress’s Commerce […]
‘Living With the UN’: Why Did I Choose Hoover Institution Press?
My book, Living With the UN: American Responsibilities and International Order, is now in stock and on-sale at the Hoover Institution Press website. I have a copy in hand and I’m delighted to be holding it. It’s not quite like holding your new baby – but for an inanimate object, it’s closer than you […]
The Individual Mandate Litigation: What’s Lochner got to do with It?
By David Bernstein on March 21, 2012 9:24 pm in Academia, Constitutional History, Constitutional Law, Health Care
I have an op-ed up at Jurist Forum. Here’s how it starts: With the US Supreme Court poised to decide whether the Affordable Care Act’s (ACA) individual mandate is unconstitutional, the ghost of the notorious 1905 Supreme Court decision in Lochner v. New York hovers over the case. Invalidate the mandate and you are resurrecting […]
Seattle University Law Professor Dean Spade versus LGBT Israeli Activists
A delegation of Israeli Jews representing the “Alliance of Israeli LGBT Educational Organizations, a network of groups that support LGBT youth and families,” was visiting the West Coast last week. The Israeli delegation’s visit was sponsored by A Wider Bridge, which describes itself as “a San Francisco–based national organization that seeks to educate people about […]
My “Boycott” of the Harvard Law Review
Yesterday, I got a request from the Harvard Law Review to undertake an anonymous “peer review” of an article HLR is considering for publication. I thought I’d share my response, below. In considering your request, I had in mind some comments that Professor Stephen Bainbridge has made about the one-sided nature of these referee requests […]
Did Historian Ilan Pappe Fabricate a Quote by David Ben-Gurion?
The quotation in question is “The Arabs will have to go, but one needs an opportune moment for making it happen, such as war.” With regard to the first part of the quotation, “The Arabs will have to go,” this piece makes a strong case that he, at best, relied on a mistranslation of the […]
Fisher v. Texas and the Texas Ten Percent Plan Revisited
Joshua Thompson of the Pacific Legal Foundation has an interesting response to my post arguing that a victory for the plaintiffs in the Fisher v. Texas case could turn out to be a pyrrhic victory for opponents of racial preferences, if it is coupled with an endorsement of the Texas ten percent plan and other […]
Why Fisher v. Texas Might Turn Out to be a Pyrrhic Victory for Opponents of Racial Preferences
In general, I am not a fan of the “diversity” rationale for affirmative action, and I have considerable sympathy for plaintiffs’ position in Fisher v. Texas, the University of Texas affirmative action case that the Supreme Court recently agreed to hear. However, in this recent Slate article, Richard Thompson Ford, a leading defender of affirmative […]
Fellowships for Aspiring Law Professors
Paul Caron collects them here. The growth of these fellowships has been quite remarkable. I managed to scrounge one in 1994 at Columbia, but that one was funded specifically for me for that year only, and it was unusual in those days to do a fellowship before entering the academy. Now, it’s commonplace, almost expected […]
Congratulations!
Congratulations to my former GMUSL student and George Mason alum Josh Blackman, who will be a tenure-track lawprof at South Texas Law School starting this Fall. Congratulations also to Brian Frye, who was my research assistant when I visited at Georgetown Law Center in 2003. Brian will be starting a tenure-track gig at University of […]