I’m not one to generally praise law reviews, but the latest issue of the George Washington Law Review contains lots of interesting stuff. I wanted to call particular attention to G. Edward White’s review of Phil Hamburger’s Law and Judicial Duty. White, one of my favorite legal historians, treats readers to an excellent discussion of […]
Archive | Rehabilitating Lochner
More on Vermuele on Living Constitutionalism
Like Orin, I recommend Vermuele’s interesting and thoughtful review essay in the New Republic. However, I want to take issue with a couple of Vermuele’s historical claims. (1) The troika do not seriously address this possibility, except to remark that the possibility of “majoritarian abuse” may sometimes require a “robust judicial role.” But we lack […]
Alan Meese and Nate Oman Take on Noah Feldman
and his call for a new progressive constitutionalism, modeled on the old, New Deal-style progressive constitutionalism. I agree wholeheartedly with Meese and Oman. One additional point: Feldman, like other modern liberal writers who yearn for the Progressive days of yore, whitewashes Progressivism, so that it consisted solely of public-spirited regulation of corporations and the labor […]
A Funny Thing About “Substantive Due Process”
By David Bernstein on June 17, 2010 2:09 pm in Constitutional History, Constitutional Law, Economic LIberties, Originalism, Rehabilitating Lochner
In his Stop the Beach opinion, Justice Scalia writes, “The first problem with using Substantive Due Process to do the work of the Takings Clause is that we have held it cannot be done.” But hold on! The Takings Clause does not apply to the states. The Fourteenth Amendment’s Due Process Clause applies to the […]
So Why Not Roe?
By David Bernstein on June 17, 2010 1:50 pm in Constitutional History, Constitutional Law, Due Process Clause Property Rights, Just Compensation Clause, Property Rights, Rehabilitating Lochner
In today’s Stop the Beach opinion, Justice Scalia (joined by the other three conservatives) criticizes Justice Kennedy for arguing that what Scalia consider “judicial takings” should instead be handled as violation of the Due Process Clause: The second problem is that we have held for many years (logically or not) that the “liberties” protected by […]
First Review of Rehabilitating Lochner
Stumbled across this at goodreads.com. I don’t know who wrote it; only that it’s one of the approximately 50 people who read the book in manuscript form, including colloquium participants at NYU and Georgetown. It’s a nice review, and the good news is that the book has undergone additional revisions/editing since it the review was […]
Rufus Peckham KOs Oliver Wendell Holmes
I recently sent the final version of my “Rehabilitating Lochner” manuscript to University of Chicago Press for proofreading, typesetting and so forth. Yay! The book should be out in Spring 2011. At some point, my editor asked me for my conception of the cover. I chose something unrealistic, but that I really liked. And I […]
The Bernardine Dohrn of the early 20th century: The terrorist professor at U of Texas law school
By David Kopel on May 24, 2010 3:56 pm in Academia, Congress, Constitutional History, Counter-Terrorism Policy, Criminal Law, Economic LIberties, Education, Guns, History, Law Schools, Legal Professor, Militia, Rehabilitating Lochner
My DU colleague Thomas Russell, who used to teach at the University of Texas Law school, has a written a paper, available on SSRN, which urges the University of Texas Law School to rename Simkins Hall, a law and graduate male student dormitory named for William Stewart Simkins. Simkins taught equity, contracts, procedure, and related topics at UT for […]
Lochner v. New York as a Test Case
Many of the most important cases in American constitutional law have not involved true cases or controversies. Instead, they involved individuals or organizations who intentionally set up a test case to challenge a law they disliked. Prominent examples include Plessy v. Ferguson and Griswold v. Connecticut. I think we can add Lochner v. New York […]
The Incorporation Doctrine
Since the incorporation doctrine is in the news today, I thought I’d share a relevant excerpt from Rehabilitating Lochner (forthcoming, U. Chicago Press, Spring 2011): The Supreme Court … gradually applied most, but not all, of the Bill of Rights to the states, on a case-by-case basis. To blunt criticism that they were emulating their […]