David E. Bernstein

Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal

In Only One Place of Redress David E. Bernstein offers a bold reinterpretation of American legal history: he argues that American labor and occupational laws, enacted by state and federal governments after the Civil War and into the twentieth century, benefited dominant groups in society to the detriment of those who lacked political power. Both intentionally and incidentally, claims Bernstein, these laws restricted in particular the job mobility and economic opportunity of blacks. A pioneer in applying the insights of public choice theory to legal history, Bernstein contends that the much-maligned jurisprudence of the Lochner era—with its emphasis on freedom of contract and private market ordering—actually discouraged discrimination and assisted groups with little political clout. To support this thesis he examines the motivation behind and practical impact of laws restricting interstate labor recruitment, occupational licensing laws, railroad labor laws, minimum wage statutes, the Davis-Bacon Act, and New Deal collective bargaining. He concludes that the ultimate failure of Lochnerism—and the triumph of the regulatory state—not only strengthened racially exclusive labor unions but contributed to a massive loss of employment opportunities for African Americans, the effects of which continue to this day. Scholars and students interested in race relations, labor law, and legal or constitutional history will be fascinated by Bernstein’s daring—and controversial—argument.

The Law and Economics of Post-Civil War Restrictions on Interstate Migration by African-Americans

An edited and revised version of this paper later became Chapter 1 of Only One Place of Redress: African Americans, Labor Organizations and the Court from Reconstruction to the New Deal (Duke University Press 2001). In the decades after the Civil War, southern states attempted to prevent African-Americans from migrating by passing emigrant agent laws. These laws essentially banned interstate labor recruitment. The Supreme Court upheld emigrant agent laws in the little-known case of Williams v. Fears in 1900. The history of emigrant agent laws provides evidence that: (1) state action played a larger role in discrimination against African-Americans than is generally acknowledged; (2) laissez-faire jurisprudence was potentially helpful to disenfranchised African-Americans; and (3) the federalist structure of the U.S. provided African-Americans with opportunities to improve their lot through internal migration. Chapter 1 of the book Only One Place of Redress: African Americans, Labor Regulations and the Courts from Reconstruction to the New Deal (Duke University Press 2001) is based on this Article.

The science of forensic psychiatry and psychology

This paper proposes two theories for distinguishing scientific from non‐scientific evidence. Under one theory, scientific evidence is based on verifiable experimentation, while non‐scientific evidence is based on education, training, and experience. Under the second theory, scientific evidence provides a generalizable theory, while non‐scientific testimony applies only to a particular case. Most psychiatric and psychological testimony has scientific and non‐scientific elements. Courts in common‐law jurisdictions have developed special strict rules for the admissibility of scientific evidence, and commentators are starting to urge the development of similarly strict rules for the admissibility of non‐scientific evidence. The overarching trend is for courts to exclude questionable evidence. The most common tests used to screen expert testimony are the “general acceptance” and “reliability” tests. Depending on which test is applied in a particular jurisdiction, and how stringently it is applied, much of the ...

The First Decisions

When a lawsuit challenges the constitutionality of a statute, the first step for the government is usually to file a “motion to dismiss,” which is an argument that a case should be thrown out because the plaintiffs’ arguments are simply not good enough to hold the court’s attention. A successful motion to dismiss can kill a case before it even gets off the ground. Many legal academics predicted that the challenge to Obamacare would not even survive a motion to dismiss, which is an almost sneering way of indicating how bad they thought the arguments against the law were.

The Law is Passed

Two days before President Barack Obama signed the Patient Protection and Affordable Care Act, Randy Barnett wrote this op-ed (abridged here) for the Washington Post. Barnett would eventually find himself on the legal team that challenged the law in the Supreme Court. At this time, however, there were just less-refined arguments and the hope that some court would take those arguments seriously.

Decision Time and Aftermath

The last week of June, which is the last week of a Supreme Court term, is always a busy time for Court watchers. The Court often waits until then to issue the biggest and most controversial decisions, which are also usually the longest ones.

The Big Show

On November 14, 2011, the Supreme Court agreed to hear the cases of National Federation of Independent Business v. Sebelius and Florida et al. v. Department of Health and Human Services.

Moving Up the Ladder

On June 29, 2011, the United States Court of Appeals for the Sixth Circuit upheld the individual mandate against a challenge brought by the Thomas More Law Center. Writing in concurrence with the panel was Judge Jeffrey Sutton, a noted conservative jurist and one-time clerk of Justice Antonin Scalia.

Postscript and Concluding Thoughts

In the aftermath of the Supreme Court’s decision in NFIB v. Sebelius, I authored op-eds for SCOTUSblog, the Washington Examiner, the Daily Beast / Newsweek, and the Washington Post, the last of which is reproduced in previous chapters. All sounded a similar theme: although I was bitterly disappointed by the failure of our legal challenge to bring down the woefully misnamed “Patient Protection and Affordable Care Act,” we were victorious in defeating the expansionist readings of the Constitution that had been offered by the government, and by many law professors, on behalf of the constitutionality of the individual insurance mandate.