David Bernstein (law professor)
Encyclopedia
David E. Bernstein is Foundation Professor at the George Mason University School of Law
in Arlington, Virginia, where he has been teaching since 1995.
He was a Visiting Professor at Georgetown University Law Center
for Spring 2003 semester, at the University of Michigan Law School
for the 2005-06 academic year, and at Brooklyn Law School
in Fall 2006.
Bernstein's scholarly writings have been in two main areas, expert evidence and constitutional history. He has written several books, and dozens of law review articles, essays, book reviews, and think tank studies.
Bernstein was born in Queens, New York in 1967. He is a graduate of the Yale Law School
, where he was a John M. Olin Fellow in Law, Economics, and Public Policy, and a summa cum laude graduate of Brandeis University
.
1993). He began researching and writing about issues surrounding the admissibility of expert testimony while in law school, when he served as a research assistant for Peter W. Huber
's influential Galileo's Revenge: Junk Science in the Courtroom. He has published numerous academic-journal and popular-press articles on the subject.
Bernstein is known for advocating stricter standards for the admissibility of expert testimony, and the much more frequent use of nonpartisan experts.
of American constitutional jurisprudence. He wrote Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke U. Press 2001), and Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (U. Chicago Press 2011). Historian G. Edward White calls the latter book "the best general survey of the literature of Lochner revisionism," and Yale Law School professor Jack Balkin
adds that "Rehabilitating Lochner will change the way people think about the transition from the late nineteenth century to the modern New Deal and Civil Rights regime."
Bernstein's work on Lochner is notable because unlike most other Lochner revisionists, he argues that the Supreme Court's liberty of contract jurisprudence was primarily rights-based, rather than resulting from concerns over "class legislation". His work is unique in that it often focuses on how the due process decisions of the "Lochner era" affected the rights and prospects of disenfranchised immigrants, women, and African Americans. Rehabilitating Lochner emphasizes the continuities between the Supreme Court's pre-New Deal Fourteenth Amendment jurisprudence and its current jurisprudence, suggesting that Progressive Era opponents of Lochner and other cases protecting individual rights ultimately won only a partial victory.
2003).
He blogs for the popular Volokh Conspiracy group blog, and Point of Law.
Selected Law Review Articles and Review Essays
Online publications
George Mason University School of Law
George Mason University School of Law is the law school of George Mason University, a state university in Virginia, United States...
in Arlington, Virginia, where he has been teaching since 1995.
He was a Visiting Professor at Georgetown University Law Center
Georgetown University Law Center
Georgetown University Law Center is the law school of Georgetown University, located in Washington, D.C.. Established in 1870, the Law Center offers J.D., LL.M., and S.J.D. degrees in law...
for Spring 2003 semester, at the University of Michigan Law School
University of Michigan Law School
The University of Michigan Law School is the law school of the University of Michigan, in Ann Arbor. Founded in 1859, the school has an enrollment of about 1,200 students, most of whom are seeking Juris Doctor or Master of Laws degrees, although the school also offers a Doctor of Juridical...
for the 2005-06 academic year, and at Brooklyn Law School
Brooklyn Law School
Brooklyn Law School is a law school located in Brooklyn Heights, in Downtown Brooklyn, New York.-History:Founded in 1901 by William Payson Richardson and Norman P. Heffley, Brooklyn Law School was the first law school on Long Island. Using space provided by Heffley’s business school, the law...
in Fall 2006.
Bernstein's scholarly writings have been in two main areas, expert evidence and constitutional history. He has written several books, and dozens of law review articles, essays, book reviews, and think tank studies.
Bernstein was born in Queens, New York in 1967. He is a graduate of the Yale Law School
Yale Law School
Yale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...
, where he was a John M. Olin Fellow in Law, Economics, and Public Policy, and a summa cum laude graduate of Brandeis University
Brandeis University
Brandeis University is an American private research university with a liberal arts focus. It is located in the southwestern corner of Waltham, Massachusetts, nine miles west of Boston. The University has an enrollment of approximately 3,200 undergraduate and 2,100 graduate students. In 2011, it...
.
Evidence
David Bernstein is an expert on the Daubert case and the admissibility of expert testimony, and a past chairperson of the Association of American Law Schools Evidence section. He coauthored The New Wigmore: Expert Evidence (Aspen Law and Business 2003), and co-edited Phantom Risk: Scientific Inference and the Law (MIT PressMIT Press
The MIT Press is a university press affiliated with the Massachusetts Institute of Technology in Cambridge, Massachusetts .-History:...
1993). He began researching and writing about issues surrounding the admissibility of expert testimony while in law school, when he served as a research assistant for Peter W. Huber
Peter W. Huber
Peter William Huber is a partner at the law firm of Kellogg, Huber, Hansen, Todd, Evans & Figel, and an author and senior fellow at the Manhattan Institute...
's influential Galileo's Revenge: Junk Science in the Courtroom. He has published numerous academic-journal and popular-press articles on the subject.
Bernstein is known for advocating stricter standards for the admissibility of expert testimony, and the much more frequent use of nonpartisan experts.
Constitutional History
David Bernstein is an expert on the Lochner eraLochner era
The Lochner era is a period in American legal history in which the Supreme Court of the United States tended to strike down laws held to be infringing on economic liberty or private contract rights, and takes its name from a 1905 case, Lochner v. New York. The beginning of the period is usually...
of American constitutional jurisprudence. He wrote Only One Place of Redress: African-Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal (Duke U. Press 2001), and Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (U. Chicago Press 2011). Historian G. Edward White calls the latter book "the best general survey of the literature of Lochner revisionism," and Yale Law School professor Jack Balkin
Jack Balkin
Jack M. Balkin is an American legal scholar. He is the Knight Professor of Constitutional Law and the First Amendment at Yale Law School...
adds that "Rehabilitating Lochner will change the way people think about the transition from the late nineteenth century to the modern New Deal and Civil Rights regime."
Bernstein's work on Lochner is notable because unlike most other Lochner revisionists, he argues that the Supreme Court's liberty of contract jurisprudence was primarily rights-based, rather than resulting from concerns over "class legislation". His work is unique in that it often focuses on how the due process decisions of the "Lochner era" affected the rights and prospects of disenfranchised immigrants, women, and African Americans. Rehabilitating Lochner emphasizes the continuities between the Supreme Court's pre-New Deal Fourteenth Amendment jurisprudence and its current jurisprudence, suggesting that Progressive Era opponents of Lochner and other cases protecting individual rights ultimately won only a partial victory.
Other projects
Bernstein also wrote You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws (Cato InstituteCato Institute
The Cato Institute is a libertarian think tank headquartered in Washington, D.C. It was founded in 1977 by Edward H. Crane, who remains president and CEO, and Charles Koch, chairman of the board and chief executive officer of the conglomerate Koch Industries, Inc., the largest privately held...
2003).
He blogs for the popular Volokh Conspiracy group blog, and Point of Law.
Publications
Books- Rehabilitating Lochner: Defending Individual Rights against Progressive Reform University of Chicago Press, 2011, ISBN 9780226043531
- You Can't Say That: The Growing Threat to Civil Liberties from Antidiscrimination Laws, Cato Institute, 2003, ISBN 9781930865532
- The New Wigmore: Expert Evidence (treatise, with Kaye and Mnookin) Aspen Publishers, 2004, ISBN 9780735545557
- Only One Place of Redress: African Americans, Labor Regulations and the Supreme Court from Reconstruction to the New Deal, Duke University Press, 2001, ISBN 9780822325833 Beito Review
- Phantom Risk: Scientific Inference and the Law (co-editor, with Foster and Huber) The MIT Press, January 29, 1999, ISBN 9780262561198
Selected Law Review Articles and Review Essays
- "Excluding Unfit workers: Social Control Versus Social Justice in the Age of Economic Reform," 72 L. & Contemp. Probs. 177 (2009) (with Thomas C. Leonard)
- "Revisiting Yick Wo v. Hopkins", 2008 Ill. L. Rev. 1393
- "Expert Witnesses, Adversarial Bias, and the (Partial) Failure of the Daubert Revolution", 93 Iowa L. Rev. 451 (2008)
- "The Red Menace Revisited", 100 Nw. U. L. Rev. 1295 (2006)
- "Learning the Wrong Lessons from an American Tragedy", 104 Mich. L. Rev. 1961 (2006)
- "Judicial Power and Civil Rights Reconsidered", 114 Yale L.J. 593 (2004) (with Ilya Somin)
- "Lochner's Feminist Legacy", 101 Mich. L. Rev. 1960 (2003)
- "Lochner's Legacy's Legacy", 82 Tex L. Rev. 1 (2003)
- "Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism", 82 Geo. L.J. 1 (2003)
- "Lochner, Parity, and the Chinese Laundry Cases", 41 Wm. & Mary L. Rev. 211 (1999) (symposium)
- "The Breast Implant Fiasco", 87 Calif. L. Rev. 457 (1999)
- "Philip Sober Restraining Philip Drunk: Buchanan v. Warley in Historical Perspective", 51 Vand. L. Rev. 799 (1998)
- "The Law and Economics of Post-Civil War Restrictions on Interstate Migration by African-Americans", 74 Tex. L. Rev. 781 (1998)
External links
Official sites- Profile at the George Mason University School of Law website.
- David E. Bernstein Personal homepage.
- The Volokh Conspiracy.
- Point of Law
- Bernstein Blog (no longer active)
Online publications