Monday, August 04, 2003

Today marks the end of Bernsteinblog. [crowd shrieks in horror] But wait, it's actually good news, because I am joining the Volokh Conspiracy as a regular contributor. [wild applause] I suspect that most of my readers read Volokh as well, but if you don't, you should. And while I encourage you to become (or continue to be) regular readers of the entire Conspiracy, if you want to read only my posts, you can find them at Thanks to all my loyal readers, and the disloyal ones, too.

Friday, August 01, 2003

Contrary to a reader comment published at Instapundit, a pro-segregation constitutional amendment could not have passed in the United States in 1953. Outside the South, public support for de jure segregation was minimal by this time. The reader in question apparently accepts the "Brown [1954] changed everything" myth. In fact, as Mike Klarman (see citations in the linked-to paper) and others have shown, Brown was an example of the Supreme Court enforcing a national consensus against a recalcitrant local minority.

David Bernstein George Mason University

Thursday, July 31, 2003

Welcome, Volokh Conspiracy readers! Blogging on this page will resume shortly. Meanwhile, why not bookmark it, or, if you are a blogger, add it to your blogroll?

David Bernstein
(George Mason University)

Friday, July 25, 2003

I'm guest-blogging at the Volokh Conspiracy for a week, so check out my posts over there.

Thursday, July 24, 2003

Another sign of out-of-control spending by Congressional Republicans: Preliminary approval of a 4.1% pay increase for federal employees at a time when many states, including my home and employer, Virginia, have pay freezes and are even laying off workers. The job market in general isn't great, as we all know. So why give federal employees a raise of more than double the inflation rate? The answer, unfortunately, is that politicians with money are no more responsible than the proverbial drunken sailors.

Wednesday, July 23, 2003

Israel also has its idiotarians. Memo to Shulamit Aloni: The difference between murder and and mere homicide is intent. When a Palestinian sets out to kill innocent Israeli civilians, that is murder. When the Israel Defense Forces inadvertantly kill civilians while pursuing murderers, that's unfortunate, but it surely is not murder. Indeed, the moral burden for those civilian deaths is largely on the terrorists themselves. And whatever Aloni thinks of the "occupation" in general, does she not remember that when her Meretz party was part of Barak's coalition that Israel offered to basically withdraw from the territories, and Arafat rejected it in favor of pursuing the fantastical "right of return?"

Update: NPR ran a story yesterday (Thursday) about Palestinian children killed by Israel in the course of its anti-terrorism operations in the territories. Of course, Linda Gradstein of NPR didn't phrase it that way, instead portraying the children as victims of the "occupation," as such. Gradstein gave the story "balance," by ending with a short paraphrase of a statement by an Israeli government spokesman who, according to Gradstein, stated that he would like to see the human rights groups up in arms about dead Palestinian children pay some heed to the Israeli children killed by suicide murderers. Gradstein concluded, "93 Israeli children have been killed" since the start of the second Intifada. This seemed somewhat sympathetic, but could also be seen as minimizing Israeli suffering, since the report had already noted far higher numbers for Palestinian children. More fundamentally, Gradstein never made the fundamental moral distinction between Israeli children who were intentionally murdered by Palestinians, and Palestinian children who were inadvertantly killed by Israel.

Whether you were for or against the war, the demise of the Hussein children is something to celebrate. By all accounts they were sadistic fiends. It couldn't happen to two nicer men, and I only hope their deaths weren't painless.

Hmm. Still can't figure out's ranking system. I thought my forthcoming book, You Can't Say That! The Growing Threat to Civil Liberties from Antidiscrimination Laws, was ranked 2.5 million+ because it had just become available for preorder purchase, and no one had bought it yet. But a search today tells me that people who bought You Can't Say That also bought other books, such as Mona Charen's Useful Idiots. So at least one person has bought the book, maybe more, but it's still ranked as 2.5 million+. Surely, there aren't 2.5 million books that have sold more than one copy on Amazon in the last two weeks. So what gives? Has anyone out there figured out Amazon's system? Don't worry, I'm not obsessing over book sales (that will wait until after the book is officially released), I'm just very curious about what the rankings mean.

Update: A reader informs me that the rank for books that aren't among the high-sellers are updated infrequently, perhaps once a month. Within a few weeks, then, my book should leave the ranks of the 2 million+ club, and my promise that if my readers could easily move me into the six digits will perhaps be fulfilled.

I made an offer on a 2003 Lexus IS300 demo at Lexus of Alexandria today, which the dealer did not accept. I offered slightly below invoice, and was told by a very haughty sales manager that Lexus does not sell new cars for under invoice. We seemed to have a disagreement as to whether a car with almost 2,000 miles on it with who knows how many drivers and a reasonable amount of dirt is a new car or a used car. In my view, it's clearly a used car, one that the dealer would be lucky to get invoice on, especially since the end of the model year is approaching. In her view, it was a new car, because it came with the full warranty. Heck, I can buy a certified 2002 Volvo with an overall six year/1000,000 mile warranty, better than the original warranty actually, but that doesn't make it a new car. If she had offered to sell it for me at invoice, I might have said yes, as car-buying is getting wearisome. But I'm glad she didn't, because in retrospect I want to pick my car's color, and the white IS300 didn't send me. Perhaps I'll wait for the 2004 models, and just email all the local dealers with my specifications and see who gives me the best price.

Tuesday, July 22, 2003

I'm stumped by the downloading patterns for my articles on SSRN. I've posted three pieces on Lochner v. New York. Two of them have been downloaded about one hundred times. The third piece, on Lochner and protective labor laws for women, has only been downloaded twenty times. Yet, I would have thought that the issue of special laws for women would resonate more with modern concerns than the other two pieces, which have less contemporary relevance. Ahh, you say, but the piece on Lochner and women was a book review, so perhaps readers aren't interested in downloading book reviews. Yet, my most popular SSRN piece (over 300 downloads) is a review of Marcia Angell's book on the breast implant litigation (note to non-legal academics: "book review" in this context is still dozens of pages). So maybe there is less interest in women's issues than I thought. If so, how to explain the fact that I have posted two articles on conflicts between antidiscrimination laws and civil liberties, with the one specifically about sex discrimination laws getting twice as many hits as the more general article? I am puzzled.

Abbas has announced that he has no intention of disarming Hamas or Islamic Jihad, as he is required to do by the "Roadmap."

I promised that I would look for an essay I wrote about left-wing anti-Semitism for the school paper, while I was a student at Brandeis University. Here it is, from The Justice, Feb. 17, 1987, p. 16. The piece is perhaps more polemical and less grammatical than what I would write today, but the basic point still holds, especially if you substitute "European" for "Gentile" (the authors of the piece I criticize below were all foreign students, as I recall, leftist Communists from Latin America). Unfortunately, the more things change, the more things stay the same:

Even though I promised myself that I would not respond to articles written by those with differing opinions this year, the blatant anti-Semitism appearing in the latest issue of The Watch has forced me to abandon my resolve. For the many thousands of you who did not read The Watch, there is a very offensive pictorial in it entitled Dachau: Then and Now. Camps are shown, with inane captions underneath. Most offensive is a short paragraph, which states, "Israel is Israel, whose people. . . Are merely selling torture instruments of a higher caliber than those used on themselves. Is this what was learned by the suffering of one people?" The message one can easily get from this is that Hitler was not so evil after all compared to the Jews, and gee, is it too bad the Nazis didn't finish the Jews off when they had a chance so that the Jews couldn't go on to commit worse genocide against others?

From this we can learn a good deal about the nature anti-Semitism. It may be valid to criticize Israel for selling weapons to certain unsavory dictators. But the leading sellers of arms to cruel dictatorships are France, Italy, the United States, and the Soviet Union. So why is Israel singled out for abuse? And why is the criticism juxtaposed with pictures of the death camps?

The answer is obvious. The Jews of the Holocaust, who for the most part "turned the other cheek," fit the perfect in Gentile image of what Jews should be. Jews were saintly in their oppression for thousands of years, turning the other cheek and all that. Those were the good Jews, the passive as Jews who taught the world how to suffer in silence. On the other hand, the Jews of Israel, and all proud and independent Jews today who fight for their rights, they are evil. It is no wonder Cardinal O'Connor said the Holocaust "was the Jews' greatest gift to the world." Traditional Gentile sentiment loves the weak cowering Jew. Remember how they loved us after the Holocaust? Immigration restrictions were lifted, Israel was established by the UN, and it became impolite to be publicly anti-Semitic.

Now that the Jews are once again strong and free, the "Progressives," who once sympathized with our plight, now give aid and comfort to our enemies. These foul weather friends will not be appeased by Israel cutting ties with South Africa or establishing a "Palestinian" state. We will only regain their sympathy if Israel is invaded and destroyed. What crocodile tears they will shed then! The wretched few survivors of the second holocaust to be the object of pity the world over. The immigration barriers will again come down, and magazines now spouting vile anti-Semitic filth like The Watch has done will start publishing articles sympathetic to the Jewish people.

The most appalling thing about this whole situation is the deathly silence with which the chaplains and others who are supposedly concerned with justice in the world have responded to the anti-Semitism present at Brandeis, both this year and last year. I know that unlike racism, the "cause" of antisemitism is not in vogue at Brandeis. In fact, in some odd way, "Progressive opinion" at Brandeis seems to see Jews as the oppressor rather than the oppressed. Perhaps that's because we are in the majority of Brandeis, and most of us had the lack of fortune to be born with white skin. But let me explain something to our professional protesters. I live in Howard Beach, where the racial attack took place in December. I do not know the attackers personally, but I know the type. They the same ones to put glass bottles under my car on Yom Kippur; the same ones who told my sister "We don't want any Jews on this block"; the same ones who carved "Jews suck" into our fence. Even if you do not give a damn about anti-Semitism, you should know that by willfully turning a blind eye to anti-Jewish sentiment in your midst, you are encouraging the forces of racism.

I am disgusted that the lack of response that blatantly anti-Semitic articles inThe Watch have elicited. I wonder if at the very least, our Jewish chaplain Rabbi Axlerad will take a moment from his investment activity to condemn the anti-Semitism present in the article in question. Unfortunately, I doubt it. Like last year, he will probably again shrink for his responsibilities, for fear of upsetting his "Progressives" allies. After all, we all know that there is nothing more important than divestment. Right?

Epilogue: My article led to a movement on campus to "defund" The Watch (which actually meant that they would simply have to get funding through the same means as other campus groups, rather than be the beneficiaries of a media fee set-aside), which failed twice in referanda, getting about 45% of the vote. The swing votes were members of other campus media groups, who feared that if the Watch could be denied guaranteed funding, so could they.