Balkinization   |
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 A Salute to the Heroism of Chinese Lawyers, and a Timeless Lesson About the Rule of Law An Originalist Argument Against Rigid Originalism Fidelity to The Constitution And Constraining Judges-- Not the Same Thing (Alumni) Democracy at Dartmouth Pluto and Constitutional Theory My defense of originalism (and the living constitution) New Orleans Plus One Originalism, History, and Objectivity Evidence and ideology Dicey Versus Posner On Ordinary Courts Why Should We be "Boxed In" by the Constitution and Laws of the United States? Will the Geneva Conventions Be the First "Universally Accepted" Treaties? Is a Federal Tax on Damages for Emotional Distress Unconstitutional? Cheering for the Evil Empire The 1% solution and the marginalization of civil liberties Confusion about Originalism? The Bloggerati response to Judge Taylor's ruling in the NSA Case Legal Realism and the Press (II)
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Wednesday, August 30, 2006
A Salute to the Heroism of Chinese Lawyers, and a Timeless Lesson About the Rule of Law
Brian Tamanaha
A recent NY Times article reported that a blind, self-taught Chinese rights advocate, Chen Guangcheng, was sentenced to four years in prison by a Chinese court: Tuesday, August 29, 2006
An Originalist Argument Against Rigid Originalism
Brian Tamanaha
James Madison wrote in Federalist 14: Monday, August 28, 2006
Fidelity to The Constitution And Constraining Judges-- Not the Same Thing
JB
In previous posts, I've argued against forms of originalism that look to the original expected application of the Constitution in favor of an original meaning approach, which I call text-and-principle, that is also a form of living constitutionalism. A pretty familar objection to original meaning approaches is that they are indeterminate when the constitutional text employs abstract standards like "equal protection" rather than concrete rules; therefore, expectation originalists complain, original meaning (or text-and-principle in my version) does not sufficiently constrain judges. That might be so if text and principle were the only things that judges consulted when they interpreted the Constitution. But in practice, judges (and other constitutional interpreters as well) draw on a rich tradition of sources that guide and constrain interpretation. These include pre- and post-enactment history, original expected application, previous constitutional constructions and implementations, structural and intertextual arguments, and judicial and non-judicial precedents, to name only a few. In practice, judges that look to text and principle will face constraints very much like those faced by judges who purport to rely on original expected application. As I've pointed out before, the latter judges can not and do not use original expected applications for a very large part of their work, because a very large part of modern doctrine isn't consistent with original expected application. So even those judges like Scalia and Thomas who claim to follow the original understanding are guided and constrained in most cases by essentially the same sources and modalities of argument as judges who employ the method of text and principle. I think there is a deeper problem with the objection that the method of text and principle does not sufficiently constrain judges. Many theories of constitutional interpretation conflate two different questions. The first is the question of what the Constitution means and how to be faithful to it. The second asks how a person in a particular institutional setting- like an unelected judge with life tenure- should interpret the Constitution and implement it through doctrinal constructions and applications. The first is the question of fidelity; the second is the question of institutional responsibility. Theories about constitutional interpretation that conflate these two questions tend to view constitutional interpretation from the perspective of judges and the judicial role; they view constitutional interpretation as primarily a task of judges and they assess theories of interpretation largely in terms of how well they guide and limit judges. For example, one of the standard arguments for expectations-based originalism is that it will help constrain judges in a democracy. Alexander Bickel's theory of the passive virtues and Cass Sunstein's idea of "minimalism," although often described as theories of constitutional interpretation, are actually theories about the judicial role and how judges should interpret the Constitution. So, too, obviously, are other theories of "judicial restraint." From the perspective of these theories, non-judicial interpreters are marginal or exceptional cases that we explain in terms of the standard case of judicial interpretation. I reject this approach. Theories of constitutional interpretation should start with interpretation by citizens as the standard case; they should view interpretation by judges as a special case with special considerations created by the judicial role. In like fashion, constitutional interpretations by executive officials and members of legislatures are special cases that are structured by their particular institutional roles. Instead of viewing constitutional interpretation by citizens as parasitic on judicial interpretation, we should view it the other way around. Why emphasize the citizen's perspective? Each generation must figure out what the Constitution's promises mean for themselves. Many of the most significant changes in constitutional understandings (e.g., the New Deal, the Civil Rights Movement, the second wave of American feminism) occurred through mobilizations and counter-mobilizations by social and political movements who offered competing interpretations of what the Constitution really means. Social and political movements often understand their grievances and their demands in constitutional terms- they argue for either a restoration of constitutional principles or a redemption of constitutional commitments. They make claims about how the Constitution's text and principles should be cashed out in present-day circumstances. Social and political movements argue that the way that Constitution has been interpreted and implemented before- for example, by judges or other political actors- is wrong- and that we need either to return to the Constitution's correct meaning or to fulfill the promises that the Constitution has made in our own day. Often people do not make these claims in lawyerly ways; and usually they are not constrained by existing understandings and existing doctrine in the way that we want judges to be constrained. In fact, when social movements initially offer their constitutional claims, many people regard them as quite radical or "off the wall." There was a time, for example, when the notion that the Constitution prohibited what we now call sex discrimination seemed quite absurd. Yet it is from these protestant interpretations of the Constitution that later constitutional doctrines emerge. Many of the proudest achievements of our constitutional tradition came from constitutional interpretations that were at one point regarded as crackpot and "off the wall." I hasten to add that most of these arguments go nowhere. Only a few have significantly changed how we look at the Constitution. Successful social and political movements must persuade other citizens that their views are correct; or, at the very least they must convince people to compromise and modify their views. If movements are successful, they change the minds of the general public, politicians and courts. This influence eventually gets reflected in new laws, new constitutional doctrines and new constitutional constructions. Successful social and political mobilization changes political culture, which changes constitutional culture, which, in turn changes constitutional practices outside of the courts and constitutional doctrine within them. The causal influences, of course, do not run in only one direction. Judicial interpretations like those in Brown v. Board of Education or Miranda v. Arizona can become important parts of our constitutional culture. They can be absorbed into ordinary citizens' understandings of what the Constitution means, and they can act as focal points for citizen reaction. Nevertheless, we cannot understand how constitutional understandings change over time unless we recognize how social movements and political parties articulate new constitutional claims, create new constitutional regimes and influence judicial constructions. To understand how these changes could be faithful to the Constitution, we need a theory that makes the citizen's perspective primary. I don't claim that all social mobilizations that produce changes in doctrine are equally legitimate or equally admirable. But some are both legitimate and admirable, and a theory of constitutional interpretation-which is also a theory of constitutional fidelity-must account for them. The text-and-principle approach can offer a much better explanation of how successful social and political movements make claims that are faithful to the Constitution than expectations-based originalism can. Indeed, expectations-based originalism is virtually useless for this purpose, because it views many of the most laudatory changes in our understandings of the Constitution as not faithful to the Constitution and therefore as illegitimate. For similar reasons, expectations-based originalism cannot really constrain judges because too many present-day doctrines are simply inconsistent with it; as a result judges must pick and choose based on pragmatic justifications that are exceptions to the theory. Because expectations-based originalism conflates the question of constitutional fidelity with the question of judicial constraint, it offers the wrong answer to both questions. Constraining judges in a democracy is important. But in practice most of that constraint does not come from theories of constitutional interpretation. It comes from institutional features of the political and legal system. Some of these are internal to law and legal culture, like the various sources and modalities of legal argument I mentioned above. Others are "external" to legal reasoning but nevertheless strongly influence what judges produce as a group. First, judges are subject to the same cultural influences as everyone else-- they are socialized both as members of the public and as members of particular legal elites. Second, the system of judicial appointments and the practices of partisan entrenchment determine and limit who gets to serve as a judge. Third, lower federal courts are bound to apply Supreme Court precedents. Fourth, the Supreme Court is a multi-member body whose decisions in contested cases are usually decided by the median or "swing" Justice. Over time, this keeps the Court's work near the center of public opinion. This combination of internal and external features constrains judicial interpretation in practice far more effectively than any single theory of interpretation ever could; it does much of the work in constructing which constitutional interpretations are reasonable and available to judges and which are "off the wall." Equally important, this combination of internal and external factors keeps judicial decisions in touch with popular understandings of our Constitution's basic commitments, continually translating, shaping and refining constitutional politics into constitutional law. In short, we shouldn't confuse the question of what it takes for actors in the system-- including those actors who are not judges-- to be faithful to the Constitution with the question of what features of the system constrain judicial interpretation. We must separate these questions to understand how constitutional fidelity occurs over time. When we do, we can also see why fidelity to original meaning and belief in a living Constitution are not at odds. Sunday, August 27, 2006
(Alumni) Democracy at Dartmouth
Mark Graber
The most recent issue of the Dartmouth Alumni Magazine has two two page advertisements urging alumni to vote for and against the new Alumni Constitution. I have received several mailings urging me to vote for and against, and read a number of prominent blogs on the subject. Even the New York Times appears to be taking some notice. Both sides insist that a correct vote on the Alumni Constitution is necessary to ensure "democracy at Dartmouth" and "an effective alumni voice." Neither side, nor any other alumni association that I know of, seems that concerned about the problematic nature of alumni democracy. Friday, August 25, 2006
Pluto and Constitutional Theory
Mark Graber
The New York Times reports that Pluto has been reclassified as one of three dwarf planets in the solar system, ending a controversy among astronomers over that sphere's status. Pluto was not reclassified, as I understand the Times story, because scientists discovered some fact about Pluto that was inconsistent with existing definitions of "planet." Rather, discoveries over the past generation have raised problems with existing definitions of "planet," requiring astronomers to adjust general understandings of what constitutes a planet before determining whether Pluto should be considered a planet. Thursday, August 24, 2006
My defense of originalism (and the living constitution)
JB
For the past year I've been rethinking my views on constitutional interpretation, and rereading some of the very rich literature that has developed in the past fifteen years or so, as well as studying the history of the Fourteenth Amendment. Wednesday, August 23, 2006
New Orleans Plus One
Anonymous
In the next week, everyone will be inundated with images and stories about New Orleans, plus one year after Katrina. President Bush has been busy already preemptively defending himself against charges that the recovery of the city has been going too slowly. The most important positive step Bush and Congress have taken so far is provide billions for a state-run program that provides a minimum amount for rebuilding for those who did not have flood insurance. But sadly, the federal government has paid too little attention to certain preconditions essential for full recovery. I’ll review those preconditions in this post, saving for another day the failures of local and state government. Tuesday, August 22, 2006
Originalism, History, and Objectivity
Mark Graber
Originalism promises to constrain justices more than theories of constitutional interpretation or constitutional adjudication (the two are not identical as Keith Whittington and others remind us) that depend on contested moral and political theories. Consider, however, three problems. Evidence and ideology
Sandy Levinson
Mark Graber's post explaining his otherwise inexplicable devotion to a team I have loathed for roughly 55 years actually raises interesting issues about commitments far more important (if such is possible) than one's devotion to the Yankees, Red Sox, or any other team. Jack's Yale colleague Dan Kahan has energetically argued (often in articles with Donald Granham), with regard particularly to the debates concerning gun policy, that evidence is basically 'irrelevant," that one's commitments concerning the extent to which firearms should be regulated have far more to do with one's underlying values, or ideology, that with the evidence submitted by either side of the debate. (E.g., proponents of gun control, who often cite the number of children killed by guns, simply refused to confront seriously the fact that more children die in backyard swimming pools every year than are killed by guns; opponents of gun control policy tend to dismiss the importance of the fact that guns do in fact account for the death of X number of "innocent" persons every year, and so on.) It may be that the discussion going on right now on another thread about "1% solutions, civil liberties, environmentalism, etc." is an illustration of Kahan's basic point. (What sort of empirical evidence, if any, would persuade a strong civil libertarian to bend his/her principles or Christopher Caldwell that one should indeed continue to honor the rights of criminal defendants even when they are suspected of terrorism. Indeed, I suggested in an article in the University of Pennsylvania Law Review responding to one of Dan's pieces that his argument might well apply to the debate about Iraq more generally, particularly in 2003, when I wrote the reply. What now seems clear to almost everybody--that the Bush Administration was basically indifferent to evidence, that their zeal to invade was based on the same kind of emotion and ideology that describes Mark's commitment to the Yankees--seemed absolutely clear to me then, but, of course, many people, perhaps plausibly, would have argued that I was too consumed by loathing for the hBush Administration to credit them as making a good case. We want to believe that our political commitments are "evidence based" and not comparable to our decisions to root for sports teams. But Kahan, who is not alone, would challenge this. I take it that no amount of evidence about the "objective" awfulness of George Steinbrenner and the loathesomeness of the Yankee's using their market dominance to crush the opposition could overcome the emotions generated by his youth as a New Yorker. Dicey Versus Posner On Ordinary Courts
Brian Tamanaha
Marty offers a detailed response to Judge Posner's WSJ Op-Ed piece below. I will focus on a very narrow point. Posner argues: Why Should We be "Boxed In" by the Constitution and Laws of the United States?
Marty Lederman
In today's Wall Street Journal, Judge Richard Posner laments the fact that the federal courts are available to adjudicate whether the President's chosen methods of fighting the war on terror are consistent with the Constitution and laws of the United States. (Thanks to Howard Bashman for the link.) Will the Geneva Conventions Be the First "Universally Accepted" Treaties?
Marty Lederman
This announcement just in from the International Committee of the Red Cross: Is a Federal Tax on Damages for Emotional Distress Unconstitutional?
Marty Lederman
The U.S. Court of Appeals for the District of Columbia Circuit today held that a federal statute, which imposes a tax on awards of compensatory damages for emotional distress and loss of reputation, is unconstitutional because such awards are not "income" within the meaning of the Sixteenth Amendment. Cheering for the Evil Empire
Mark Graber
These are glorious days for true fans of the evil empire, sometimes known as the New York Yankees. The hated Red Sox, humilitated on Friday and Saturday, had their hearts broken on Sunday and Monday. ESPN, committed to discovering every imaginable statistic possible (are any of their research assistants interested in going my law school!), points out that the Yankees have not won five from the Sox in more than a half century and that this is the first time since 1923 that a first place team has swept a 5 game series from a second place team. Sunday, August 20, 2006
The 1% solution and the marginalization of civil liberties
Sandy Levinson
An article in today's New York Times by a British writer, Christopher Caldwell, is, I suspect, symptomatic of the declining support for civil liberties even among elites. The key part of his article comes toward the end: "Blair’s opponents equate today’s civil liberties protections with core British values." Caldwell appears to believe that they are best conceived only as "temporary adjustments that were useful under certain specific circumstances in part of Europe between World War II and the late 20th century. Saturday, August 19, 2006
Confusion about Originalism?
JB
Larry Solum asks why nonoriginalists still talk about "original intentions" when in fact most legal theorists who are originalists have long ago moved on to some variety of original public meaning. There are two reasons. One is that most nonoriginalists don't see much difference *in practice* between the positions of those who used to talk about the intentions of the framers those who talk about original understanding and those who talk about original meaning, even though these positions are theoretically distinct and have different theoretical weaknesses. Hence they use the expressions "original intent" and "original understanding" and "original meaning" interchangeably (albeit incorrectly). They may or may not be right about the practical difference with respect to any number of situations and thinkers (Randy Barnett comes immediately to mind), but I think that is pretty much what is going on. There is a hermeneutics of suspicion going on that is the mirror image of the suspicion that many conservatives tend have about why liberals are nonoriginalists. The second reason for the conflation by nonoriginalists, however, is far more important. Many people who call themselves original public meaning originalists-- and here I have Justice Scalia particularly in mind-- tend to conflate two related but distinct questions: the original public meaning of the constitutional text, and the original expected application of the text. These two ideas are quite different in practice, and the difference between them becomes increasingly important as we move further and further away from the generation that produced a constitutional text. When originalists like Scalia conflate these two ideas, and insist that we are bound by original expected application (except of course, when we aren't), nonoriginalists figure that there isn't much practical difference between today's original meaning adovcates and yesterday's original intentions advocates. I myself believe that constitutional interpretation should be consistent with original public meaning and underlying principles behind the text, but I don't accept that original expected application is binding. I don't think that fidelity to text and principle requires fidelity to the specific set of applications that persons living at the time of adoption would have expected. Therefore I don't agree with Scalia's form of originalism, even though he calls it original meaning. I believe that Scalia engages in precisely the conflation between text and expected applications that I indentified above. My position is closer to Randy Barnett's and Akhil Amar's, with differences that aren't relevant for purposes of this discussion. What is most important, however, is that this version of originalism is not inconsistent with many different forms of living constitutionalism. I promise to say more on this topic later. The Bloggerati response to Judge Taylor's ruling in the NSA Case
Guest Blogger
Laurence Tribe Legal Realism and the Press (II)
Sandy Levinson
Lyle Denniston, the dean of Supreme Court reporters (and someone whose writing I've long admired), posted a long and thoughtful reply to my previous post. I am taking the liberty of answering it in a "full-scale" posting of my own, given the importance of the issues raised.
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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 |