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Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts Guest Blogger: Mark Graber Civil Liberties in "Wartime" I Shorter Republican Party Convention The Constitution in the Media Four More Months The Rise of Libertarian Republicans David Brooks: Clinton for President Understanding the Rehnquist Court III Understanding the Rehnquist Court II The Day Roe Was Overruled-- The Prequel Understanding the Rehnquist Court From the Blackmun Papers: The Day Roe v. Wade was Overruled What I did during my summer vacation Popular constitutionalism Antonin Scalia as Felix Frankfurter Guest Blogger: Mark Tushnet Do the Democrats Have a Constitutional Vision?
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Tuesday, August 31, 2004
Guest Blogger: Mark Graber
JB
Mark Graber of the University of Maryland, one of the most original thinkers in political science today, whose specialty is public law and American political development, will be guest blogging on Balkinization. Please give him a warm welcome.
Civil Liberties in "Wartime" I
Mark Graber
Most critics of the Patriot Act accept that some restrictions on civil liberties are the norm in wartime. But American history offers numerous counterexamples. Wartimes have as often provided occasions for expanding as restricting civil liberties. The Patriot Act is more about George W. Bush and John Ashcroft than about an American norm of behavior in times of national danger.
Monday, August 30, 2004
Shorter Republican Party Convention
JB
Reporter: Hi, I wanted to ask you a few questions about ....
Republican Party: September 11th! September 11th! Remember September 11th!
Reporter: What's your view of the Democrats?
Republican Party: Out of Mainstream! Unpatriotic! Radical Pantywaists! September 11th! September 11th! Remember September 11th! (breaks into song) Oh Beautiful for Spacious Skies, For Amber Waves of Grain!
Reporter: What's your view about unemployment?
Republican Party: Turning the Corner! America Strong! September 11th! September 11th! Remember September 11th!
Reporter: Deficits?
Republican Party: What Deficits? September 11th! September 11th! Remember September 11th!
Reporter: The failure to find weapons of mass destruction?
Republican Party: Winning the War on Terror! America Strong! America Good! September 11th! September 11th! Remember September 11th!
Reporter: Well, thanks very much for your time. I appreciate it. (starts to walk away).
Republican Party: (tackling reporter) September 11th! September 11th! Did you hear me! SEPTEMBER F**CKING 11TH!
The Constitution in the Media
Mark Tushnet
Evidence that the media need constitutional advisers (I'm available for my usual hourly rate):
Sunday, August 29, 2004
Four More Months
JB
A grand old welcome for the Grand Old Party.
Truly only a special kind of leader can inspire this much emotion from his fellow countrymen.
Saturday, August 28, 2004
The Rise of Libertarian Republicans
JB
This is a follow up to Mark's post. He asks how we should categorize Justice Kennedy. I would say that Kennedy is exactly what Mark thinks he must be-- a modern Republican. But Kennedy is a particular kind of modern Republican. The Southern and Western wings of the Republican Party which took over the Party in the 1980's were not monolithic. They combined social conservatives, religious conservatives and libertarians. It is obvious that although these groups can agree on some things, they will disagree on others. Kennedy is not a social or religious conservative. He has strong libertarian tendencies and an almost romantic attachment to a notion of personal liberty that he has tried to articulate with varying degrees of coherence in his opinions. When we look at how Kennedy has parted company with Rehnquist, Thomas, and Scalia, it has often been on libertarian grounds-- in first amendment cases and particularly in cases involving abortion and gay rights. Kennedy is, after all, the author of the "sweet mystery of life" passage in Casey that drives Scalia (and other critics of Casey and Lawrence) up the wall.
Libertarians are an increasingly important part of the Republican coalition, particularly among young people. But there is a natural strain between them and social and religious conservatives, (and their discomfort has been exacerbated by the free spending policies of the Republicans in recent years.)
In the future we are likely to see more appointments of judges like Kennedy, not fewer. One reason is that they represent an important part of the Republican intelligentsia. Another is that they are more palatable to Democrats than Ashcroft-style social or religious conservatives. Whether that is a good thing or a bad thing, of course, depends on whether you like Kennedy's politics more than Scalia's.
David Brooks: Clinton for President
JB
His long and very interesting New York Times article offers what he calls a new agenda for the Republican Party, which uses an energetic activist government to create opportunities for ordinary people, energize and empower minority communities, foster individual initiative, end corporate welfare, give incentives for new energy alternatives and create a national service program.
The only problem is that it's not new. It's Clintonism. Essentially, Brooks wants the Republicans to become the DLC.
Well, if the right wing party in this country wants to move to the left sufficiently to embrace the views of the DLC, a center-left organization, that's fine with me. I'd love the center of gravity in the U.S. to shift dramatically to the left. Among other things, it would open up a space for discussion of liberal policies that have been viewed as out of the mainstream for years.
Nevertheless, I strongly suspect that a lot of people in the Republican Party are going to be ideologically allergic to what Brooks is advocating. Apparently he has Tom Delay and Grover Norquist confused with reasonable people.
Friday, August 27, 2004
Understanding the Rehnquist Court III
Mark Tushnet
Previously I argued (a) that the most important dynamic on the Rehnquist Court was a division within the "conservative" or Republican ranks, and (b) that liberals were in the main able to avoid division because of the leadership of Justices Brennan and Stevens. Those points immediately raise an additional question: Why weren't the conservatives able to overcome their divisions by some similar acts of leadership?
Tuesday, August 24, 2004
Understanding the Rehnquist Court II
Mark Tushnet
I argued in my previous post that one important dynamic on the Rehnquist Court was division between two groups of Republicans, or two types of conservatives. What was happening on the liberal side? Basically -- with one interesting exception -- a high degree of unity (not always -- see Atwater v. Lago Vista -- but quite high nonetheless). And how did that happen (since unity among judicial liberals is hardly a fact of nature)?
Monday, August 23, 2004
The Day Roe Was Overruled-- The Prequel
JB
My previous post discussed how Roe was almost overruled in Casey. This post explains why Roe was not overruled in Webster v. Reproductive Health Services in 1989, after Justices Scalia and Kennedy joined the Court. The short answer is that Scalia and O'Connor could not agree on a common solution, and Chief Justice Rehnquist was unable to exert sufficient diplomacy to come up with a working majority. This story has been told before in Edward Lazarus's Closed Chambers (he clerked for Blackmun during this term), but the Blackmun papers offer some new insights into what happened.
Webster was argued April 26th, 1989 and decided July 3d, 1989. On April 28th, the Court met in conference to discuss the case. This conference was particularly important because it was the first time that the two newest Justices, Scalia and Kennedy, would announce their views on Roe v. Wade. Blackmun's notes indicated that there were five votes to uphold the Missouri statute in its entirety: Chief Justice Rehnquist, Justice White, Justice O'Connor, Justice Scalia, and Justice Kennedy, but they wanted to do so for different reasons.
Chief Justice Rehnquist wanted to reverse the lower court and uphold the Missouri law. He wanted to subject abortion regulations to a rational basis test, although he would stop short of saying that outright criminalization of abortion as in the original Texas statute "is now OK." White was basically in agreement-- he would uphold the Missouri statute.
Justice Brennan would have affirmed the lower court and struck down the Missouri statute. Roe was "correct" he said. It involved "[a] fundamental right." Marshall agreed. He would uphold what lower court did across the board. Blackmun also agreed, although his notes also indicate he might reverse on the preamble.
Stevens wanted to uphold some parts and strike down others. The "Admin[istration] did us a disservice by raising t[he] issue" of overruling Roe. He might agree with Rehnquist that the preamble to the Missouri statute-- stating that life begins at conception-- presented no problems because it had no legal effect.
O'Connor's views of Roe had not changed. I "[a]dhere to what I have written," she said. She would "recognize a valid st[ate] interest" in potential life throughout the pregnancy. She would not "reject Griswold and Eisenstadt," and would go no further than this.
Scalia spoke next: "I may have t[o] confront Roe," he said. "I just disagree with it." "We [should] set it aside when we can." The problem would get "no better as time goes on," although perhaps the Court "need n[ot] reach the issue here."
Kennedy wanted to uphold the testing requirements, which he thought were "probably invalid under Roe," and he wanted to "cut back on this." "I taught [Roe] for ten years," Kennedy remarked. "On[] pure stare decisis [grounds I] would leave [it] alone," he said, "[b]ut [it] continues to do damage to the Court, [to] the institution of judicial review, and [to the] conception of the judge's proper position and role." Kennedy would use the Due Process Clause, but not recognize the "fundamental rights of women." He would "[r]eturn this debate to the democratic process. It will protect the rights of young women." Kennedy wanted to reach the merits only after a discussion of the "methodology and structure of Roe."
By the end of the conference, there were five solid votes for upholding the Missouri statute. This included four votes for gutting or overruling Roe: Rehnquist, White, Scalia, and Kennedy. O'Connor, by contrast, wanted to use her "undue burden" test. Brennan and Marshall wanted to strike down the challenged provisions across the board, while Blackmun and Stevens wanted to strike down parts.
Rehnquist assigned himself the majority opinion. He hoped to write something that would bring O'Connor into the fold. He circulated his first draft on May 25th, styled as the Opinion of the Court. It rejected Roe's trimester system and the cutoff at viability, and held that abortion regulations were permissible if the state's regulation "reasonably furthers the state's interest in protecting potential human life." "To the extent indicated in our opinion, we modify and narrow Roe and succeeding cases."
Rehnquist's approach was clever, but it fooled no one. It was obvious to all that the Chief Justice had just overruled Roe without saying so. On May 30th, Stevens sent him a letter making precisely this point. Rehnquist had announced what was effectively a test of minimum rationality for all abortion regulations:
Rehnquist did not worry too much about Stevens, who was not going to vote with him anyway. The real problem was O'Connor. By choosing a test of minimum rationality, he had rejected not only Roe v. Wade but also O'Connor's "undue burden" test. Perhaps he hoped that O'Connor would go along, but she refused to budge. She circulated the second draft of her views on June 26, now styled "concurring and concurring in the judgment in part and dissenting in part."
The next day, Rehnquist submitted his fourth draft, still as the Opinion of the Court. Perhaps he hoped he could still keep his majority together. But the day after that, on the 28th, Blackmun noted in the margins of the second draft of his dissent that the "majority" was now a "plurality." At this point, Scalia jumped ship and wrote a separate opinion arguing that Roe should be overruled. Apparently, Scalia had gotten over his the initial reluctance to confront Roe that he had expressed at the April 28th conference.
One might well ask why Rehnquist didn't write an opinion that rejected the strict scrutiny language of Roe, Akron, and Thornburgh and simply said that the Court would decide whether rational basis or undue burden applied in the next case? Perhaps this might have mollified O'Connor, but it would have lost Scalia, who would only join an opinion that overruled Roe or treated it as a dead letter. In the end, neither Scalia nor O'Connor joined his opinion treating Roe as a rational basis case. Rehnquist discovered that he had been too clever for his own good.
Sunday, August 22, 2004
Understanding the Rehnquist Court
Mark Tushnet
Jack's post on the Casey decision prompts me to sketch my argument in "A Court Divided," as promised (or threatened) earlier. The basic dynamic on the Rehnquist Court, I argue, has two elements, one on the "conservative" side, and one on the "liberal" side. Here I'll deal with the first, and post tomorrow about the second.
Saturday, August 21, 2004
From the Blackmun Papers: The Day Roe v. Wade was Overruled
JB
Harry Blackmun's papers offer important behind-the-scenes details about how the Supreme Court decided Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992. Casey, as you may remember, was thought to be the case that would have overruled Roe but ended up reaffirming it in a watered-down version. The story has been told before by Edward Lazarus in his book Closed Chambers, and by David Garrow in a New York Times article on Justice Souter in 1994, but Blackmun's papers offer a valuable additional insights. Here is the story of what happened as best I can reconstruct it:
Casey was argued on April 22, 1992. At the conference following the argument, on April 24, 1992, there were five votes to uphold the challenged Pennsylvania statute in its entirety: Rehnquist, White, Scalia, Kennedy, and Thomas. Blackmun's notes state "To uphold we would not OR Akron & Thornburgh;" i.e., that it would not be necessary to overrule these cases from the 1980's in which a liberal majority had struck down similar abortion regulations under a test of strict scrutiny. This statement seems puzzling-- it's hard to see how these cases would be consistent with upholding the Pennsylvania statute. Edward Lazarus' book Closed Chambers suggests that Rehnquist said the opposite of what Blackmun's notes suggest-- the Akron and Thornburgh had to go, but that it might not be necessary to overrule Roe. It's possible that Rehnquist was just playing possum, arguing that the Court did not need to do much new here, so that he could cement a majority that included Sandra Day O'Connor and try to write an opinion that could command a Court.
Scalia agreed with Rehnquist, but he added that in his view abortion regulations need only pass a test of minimum rationality, a position Rehnquist had taken in his Webster opinion. Thomas also wanted to uphold the entire statute. Kennedy agreed with him. Kennedy, and not Rehnquist specifically wanted to overrule the two previous cases, Akron and Thornburgh, which had reaffirmed that abortion was a fundamental right and had subjected abortion regulations to strict scrutiny.
The remaining four Justices thought that some parts of the Pennsylvania statute had constitutional problems. Souter wanted to strike down the spousal notification provision. O'Connor agreed-- she thought the 3rd circuit decision, which had struck down only this provision, was basically right. Stevens and Blackmun wanted to strike down both the spousal notification provision and the 24 hour waiting period. Stevens called the latter "an insult" to women.
After the conference, it looked as if there was a 5-4 opinion to uphold the statute in its entirety, which would have effectively gutted Roe. Thus, on April 24, 1992, it appeared to the Justices that Roe v. Wade would finally be overruled.
Rehnquist assigned himself the majority opinion and circulated a draft on May 27, 1992. "We hold that all of the challenged provisions of the Pennsylvania statute are consistent with the United States Constitution," Rehnquist wrote. Although Roe involved criminalization of abortion rather than regulation of abortion, it was necessary to reconsider Roe. "Building on [Meyer and Pierce] we have long held that the term "liberty" includes a right to marry, [Loving]; a right to procreate, [Skinner v. Oklahoma]; and a right to use contraceptives. [Griswold, Eisenstadt]. But a reading of these opinions makes clear that they do not endorse any all-encompassing `right of privacy.' In particular, "the Court was mistaken in Roe when it classified a woman's decision to terminate her pregnancy as a `fundamental right' that could be abridged only in a manner which withstood `strict scrutiny.' Rehnquist cited Bowers v. Hardwick to support his view that the right of privacy should be narrowly construed because it had "little or no cognizable roots in the language or design of the Constitution." Henceforth, regulations of abortion need only meet a test of mere rationality. That is, "States may regulate abortion procedures in ways rationally related to a legitimate state interest." Since the preservation of potential life was a legitimate state interest, it followed that states could probably criminalize abortion as well, although Rehnquist did not say this directly.
After Blackmun read the first draft, he wrote in the margins: "WOW! Pretty extreme?"
But Rehnquist felt no need to be less extreme. He had five votes. But at this point his majority began to fall apart. The key actor was not Sandra Day O'Connor, but Anthony Kennedy. Two days after the first draft was circulated, on April 29, 1992, Kennedy sent Blackmun a short handwritten note:
I need to see you as soon as you have a few free moments. I want to tell you about some developments in Planned Parenthood v. Casey, and at least part of what I say should come as welcome news.
If today is not convenient, I will be here tomorrow. Please give me a call when you are free.
Yours,
Tony Blackmun wrote the initials of the Justices in a row, and drew brackets around the troika of Kennedy, O'Connor, and Souter. He now saw that there were five votes for upholding Roe-- the troika, himself, and Stevens. At the bottom of the page, Blackmun wrote: "AMK delegated by O and D?" i.e., had Kennedy been delegated by the other two Justices to make these representations? It soon became clear that he had.
On June 8, 1992, O'Connor, Kennedy and Souter circulated the first draft of their Joint Opinion. It was not circulated as the lead opinion, but rather was labeled "concurring in the judgment in part and dissenting in part." On page 3, the Justices wrote: "After consideration of the fundamental constitutional questions it presents, principles of institutional integrity and stare decisis lead us to conclude this: the essential holding of Roe v. Wade once again should be endorsed, continued, and reaffirmed." When Blackmun read this sentence, he underlined the words "endorsed," "continued" and "reaffirmed," and wrote in the margin "this OK." As Kennedy had suggested, the joint opinion adopted O'Connor's undue burden test: "the State cannot assert its interest in promoting fetal life in a way that imposes any real obstacle to the practical ability of the woman to have an abortion procedure before viability" but "the State can enact reasonable measures to assure that the woman's decision is cautious, mature, and informed."
On June 17, 1992, Rehnquist circulated a second draft of his majority opinion. It was still titled the Opinion of the Court, but it noted the existence of a "Joint Opinion" written by Kennedy, O'Connor, and Souter, and rejected its arguments for upholding Roe based on stare decisis:"We have stated above our belief that the Constitution does not subject state abortion regulations to any type of heightened scrutiny. Accordingly, we think that the correct analysis is that set forth by the plurality opinion in Webster. A woman's interest in having an abortion is a form of liberty protected by the Due Process Clause, but states may regulate abortion procedures in ways rationally related to a legitimate state interest." Rehnquist still believed he could keep a majority together. But events were moving against him.
The next day, on June 18th, Stevens wrote to the troika. He and Blackmun could join in the first three sections of their opinion, reaffirming Roe and striking down the spousal notification provisions, in effect making their views the opinion of the Court. In return, the troika only had to delete some sentences that criticized Roe and its trimester system from the first three sections and move them to later in the opinion. Stevens and Blackmun would join the first three parts of the opinion and write separate dissents addressing the remaining issues, including the 24 hour waiting period. Kennedy and O'Connor agreed the same day, and after some minor negotiations over language, they issued a second draft on June 22nd, now titled the "Opinion of the Court." Stevens joined on June 22nd, while Blackmun joined on June 24th. A third draft circulated on June 25th, 1992. The troika was in control.
On June 26th, Rehnquist circulated his 3rd draft. The opinion was now entitled "concurring in the judgment in part and dissenting in part." Rehnquist had lost his majority, but he tried to spin the meaning of the joint opinion: After arguing that Roe was wrong to recognize a fundamental right, he stated "The joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER is not in outright disagreement with us to this point." The next day, however, Scalia, White, and Thomas had signed on, and Rehnquist was no longer in the mood to be conciliatory. In his fourth and final draft that sentence now read: "The joint opinion of JUSTICES O'CONNOR, KENNEDY, and SOUTER cannot bring itself to say that Roe was correct as an original matter."
Rehnquist had wanted to overturn Roe before the 1992 election. If Bush won, he might retire; if Clinton won, the deed would already have been done. Now that Roe was still around, there was nothing left to do but show why the Joint Opinion's arguments made no sense.
Rehnquist had come ever so close to gaining his prize. But it had eluded him.
For now.
Friday, August 20, 2004
What I did during my summer vacation
JB
Several of you have been kind enough to inquire after me because of the lack of postings for the past month. The truth is that I've been swamped with work. I'm simultaneously working on three different books slated for publication next year as well as about six articles, revising my Con Law casebook, plus the usual reviewing of manuscripts by other scholars, writing recommendations, running the Information Society Project (my Internet center at Yale), etc. At some point, the deadlines just pile up and I have to let go of something. In this case, it's blogging. (Nevertheless, I should point out that Mark Tushnet, who has been graciously guest blogging here on Balkinzation is doing about twice as much without breaking a sweat!).
In any case, in the next week or so I want to share some of the work I've been doing. In particular, last week I was down in Washington doing research on one of my books, in this case a book on Roe v. Wade, and I spent some time at the Library of Congress looking through the papers of Justice Harry Blackmun. Blackmun was a pack rat-- he saved *everything*-- and there are a fair number of letters between the Justices in some of the important cases of the 1970's and 1980's, and, in particular the abortion cases starting with Roe. As the author of Roe, Blackmun felt an almost proprietary interest in the fate of that decision, and his records of the deliberations in Roe, Webster, and Casey are pretty good. I also wanted to see if there was any connection between the decision in Roe and the Court's sex equality jurisprudence. It turns out, not much. But in the meantime I found some fascinating stuff on how the Court viewed the ERA as it was considering whether to create new doctrines enforcing sex equality. Popular constitutionalism
Mark Tushnet
Larry Kramer's recent "The People Themselves" is yet another contribution to the burgeoning (? -- really?) literature on popular constitutionalism. That literature defends the proposition that the people themselves have an important part to play in constitutional discourse (and not simply by means of electing representatives who transform the Constitution in various ways, such as those described by Bruce Ackerman). There's rather less written about how the people themselves conduct themselves in constitutional discourse.
Thursday, August 19, 2004
Antonin Scalia as Felix Frankfurter
Mark Tushnet
I've been struck by some similarities between Antonin Scalia and Felix Frankfurter, despite their obvious jurisprudential differences (Frankfurter the defender of fact-sensitive balancing [sometimes], Scalia the advocate of rule-based decision-making). Both were politically active law professors before they became judges. And, like Frankfurter when he was on the Court, Scalia has an active group of enthusiastic supporters in the legal academy. (Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of http://ninomania.blogspot.com/ for Frankfurter.)
Wednesday, August 18, 2004
Guest Blogger: Mark Tushnet
JB
I'm delighted to announce that Mark Tushnet of Georgetown Law School, who is one of the most prolific and most important constitutional thinkers in the United States today will be guest blogging on Balkinization. Please give him a warm welcome.
Do the Democrats Have a Constitutional Vision?
Mark Tushnet
David Strauss has an interesting article in the current issue of Legal Affairs, arguing that the Republicans have an agenda for constitutional law while the Democrats do not. ("Not that there's anything wrong with that.") He's right in one sense, but wrong in another, I think.
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |