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 looming constitutional crisis? The Haystack Terror Strategy The Two Rights to Abortion New Legal History Blog A Bit of Wishful Thinking on Civil Liberties Our Undemocratic Constitution: The Lameduck Congress What Makes a War? Karpinski: Rumsfeld Approved Coercive Interrogation Methods The threat to the dollar R.I.P. Linda Faye Williams and Kermit Hall This Just In (And Why We Should be Very Afraid) "Don't Worry, Be Happy" No confidence (either in Bush or the Constitution) A Remembrance of Kurt Sontheimer Religion and politics In the Penal Colony Hints that the "Culture Wars" Might Dampen (But Don't Count On It) It's a Matter of Life or Death, So Let's Be Honest About Jury Instructions
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Thursday, November 30, 2006
A looming constitutional crisis?
Sandy Levinson
I have, as many of you are painfully aware, been bewailing the constitutional unavailability of a mechanism by which Congress could declare "no confidence" in George W. Bush and replace him with a Republican (since the Republicans won the last presidential election) in whom there was sufficient confidence. Most of the discussion has been suitably abstract--the virtues of checks and balances, "republican government," and the like-- and/or rawly political, as exemplified by my repeated denunciations of Bush as stunningly ignorant, incurious, and incompetent. Wednesday, November 29, 2006
The Haystack Terror Strategy
Ian Ayres
Ian Ayres and Rashad Hussain The Two Rights to Abortion
JB
In my 2005 book, What Roe v. Wade Should Have Said, and again in my recent article on Abortion and Original Meaning, which will be the subject of a symposium in Constitutional Commentary, I argued that there are not one but two rights to abortion. In this post I want to explain what the two rights to abortion are and why it matters that there are two of them. The discussion that follows is adapted from the article. Tuesday, November 28, 2006
New Legal History Blog
JB
Mary Dudziak at USC has begun a new blog, Legal History Blog, devoted to legal history; it will feature discussions and reviews by law professors and legal historians of works in the field.
Monday, November 27, 2006
A Bit of Wishful Thinking on Civil Liberties
JB
Scott Turow, engaging in a bit of wishful thinking, suggests that Justice Scalia will prove to be the pivotal vote for civil liberties in upcoming cases on the War on Terror. In Turow's eyes, Scalia may be a veritable jurisprudential wild card who will stand up to President Bush in his assertions of presidential power in cases involving the NSA domestic surveillance program and the Military Commissions Act. Turrow points to Scalia's decisions in Kylo and Apprendi, and his concurrence in Hamdi v. Rumsfeld as evidence of Scalia's maverick ways, and he deduces that Scalia's "occasional alliance with the court’s more liberal justices could be struck again in future terror cases. The result would be an unequivocal declaration that executive power must yield to constitutional liberties, even when the nation is on the prolonged war footing we seem to have adopted." Would that it were so, but it is not likely. What Turow neglects-- and he is hardly alone-- is that the civil liberties issues raised in the war on terror do not primarily concern construction of the Bill of Rights. Rather, as the Hamdan case suggests, they involve questions of the separation of powers, the scope of Presidential power in wartime, and the President's (and Congress's) authority to regulate aliens. The Bush Administration has not chipped away at civil protections liberties where they are strongest, but rather where they are weakest: cases involving statutory rights, the scope of habeas corpus jurisdiction, the rights of aliens, particularly aliens held overseas, and human rights protections under international law. The civil liberties cases of the War on Terror will not look like those of the past, which is why the Administration will be able to diminish civil liberties while claiming that it has not seriously limited the Bill of Rights as to American citizens. When Turow thinks about struggles over civil liberties, he is largely fighting the last war. The next two key constitutional cases on the war on terror will probably involve the NSA domestic surveillance case and constitutional challenges to the Military Commissions Act. They involve presidential power and the power of Congress to strip the jurisdiction of the federal courts with respect to aliens. Scalia's previous decisions suggest that he is far more likely to be on the Administration's side in these controversies. His dissents in Rasul v. Bush, Hamdan v. Rumsfeld and INS v. St. Cyr are far better predictors of how he will look at key civil liberties issues in the War on Terror than the cases Turow cites. Although the NSA case may involve the Fourth Amendment, most courts have held that the Fourth Amendment does not apply to foreign intelligence collection, and there are various other exceptions to the Fourth Amendment that may take the NSA program out of its ambit. That being the case, the key question turns on Presidential power to work outside of the Foreign Inteligence Surveillance Act. The argument against the legality of the NSA program is pretty much the same as the majority's argument in Hamdan v. Rumsfeld, an argument that Scalia rejected. Scalia has long been an advocate of a strong executive, and where Congress can be said to support what the executive has done, Scalia's degree of deference is likely to be even higher. Things get no better with the Military Commissions Act. A passing acquaintance with Scalia's views on jurisdiction stripping in his dissent in Hamdan and his views on habeas stripping (especially with respect to aliens) in St. Cyr suggest that he is among the least likely of the Justices to be sympathetic to claims that Congress acted unconstitutionally in passing the Military Commissions Act. Remember that the Military Commissions Act primarily affects non-citzens held overseas, and if anything is clear from Scalia's concurrence in Hamdi v. Rumsfeld, it is that he makes a sharp distinction between the rights of citizens and non-citizens. There may be some civil liberties issues in the future in which Scalia joins the liberals. I doubt, however, that many of them will be the key issues in the War on Terror. That is because the Bush Administration has found ways to limit civil liberties without making a direct assault on the substantive content of the Bill of Rights. Rather, the Administration has found ways to route around the Bill of Rights by creating a parallel system of military detention and surveillance justified by claims of emergency and national security. That is to say, the Bush Administration has produced an early version of what I call the National Surveillance State. To the extent that the coming constitutional struggles over the National Surveillance State involve the scope of Presidential power (often abetted by Congress) and the rights of aliens, particularly aliens who are in the country illegally or are behing held overseas, Justice Scalia is not likely to be the great civil libertarian that Turow hopes he will be. But my larger point concerns more than Justice Scalia's jurisprudence. It is about civil liberties generally. Because the problems of governance and the nature of goverment responses are always changing, it is not enough to prevent governments from doing bad things that people fought over long ago and that we now firmly reject. Rather, in ever new situations, governments are able to find ever new ways to limit people's liberties under the forms and practices of law, making new distinctions, and creating new techniques that are plausibly distinguishable from old controversies. That is why the protection of civil liberties is not about making sure that governments don't repeat precisely the same mistakes they made fifty or a hundred years ago. It is about making sure that they don't abuse power in new ways based on the evolving forms of governance. Sunday, November 26, 2006
Our Undemocratic Constitution: The Lameduck Congress
Sandy Levinson
In my book I rail against the hiatus between what I call the repudiation of a sitting president (think of Carter and George H. W. Bush) and the inauguration of his successor, which offers the opportunity for the repudiated president nonetheless to make mischief for his successor. Think of Bush's sending American troops into Somalia, which turned out to have disastrous consequences for the Clinton Administration and, ultimately, the US. I spend less time on a linked problem, which is the "lameduck" legislature still in the hands of a repudiated majority. Well, that's our situation. The 20th Amendment, added to the Constitution in 1933, was arguably designed to alleviate, if not cure, the problem by establishing that new terms of Congress begin at the very beginning of January. One doubts that the framers of that amendment pictured a political reality where lameduck congressional sessions would, like filibusters, become the common currency of our politics and, therefore, that repudiated majorities would nonetheless claim a right to rule on important things. (Incidentally, for those of you who accuse me of being a mere partisan, I have elsewhere criticized the Clinton Administration's pushing through the GATT agreement in the waning days of the repudiated 1994 Congress.) What Makes a War?
David Luban
Today’s New York Times provides this analysis of a curious semantic question: whether the catastrophic violence ruining Iraq is or is not a "civil war." It turns out (unsurprisingly) that politics, not lexicography, drives the debate. The U.S. government refuses to call the bombings and killings in Iraq a "civil war" because that would imply American failure in the invasion’s aftermath. Instead, it is "ethnic violence" or an "insurgency," which to my ears connotes a relatively small-scale uprising against a legitimate government. Saturday, November 25, 2006
Karpinski: Rumsfeld Approved Coercive Interrogation Methods
JB
Reuters reports that former General Janis Karpinski (later demoted to colonel because of her own actions arising out of the Abu Ghraib scandal) has now offered to testify against Donald Rumsfeld: Former U.S. Army Brigadier General Janis Karpinski told Spain's El Pais newspaper she had seen a letter apparently signed by Rumsfeld which allowed civilian contractors to use techniques such as sleep deprivation during interrogation. Karpinski, who ran the prison until early 2004, said she saw a memorandum signed by Rumsfeld detailing the use of harsh interrogation methods. "The handwritten signature was above his printed name and in the same handwriting in the margin was written: "Make sure this is accomplished"," she told Saturday's El Pais. "The methods consisted of making prisoners stand for long periods, sleep deprivation ... playing music at full volume, having to sit in uncomfortably ... Rumsfeld authorized these specific techniques." "We received a message from the Pentagon, from the Defense Secretary, ordering us to hold the prisoner without registering him. I now know this happened on various occasions." Karpinski said last week she was ready to testify against Rumsfeld, if a suit filed by civil rights groups in Germany over Abu Ghraib led to a full investigation. We've long assumed that prisoner abuse in Iraq occured in part because the Pentagon entrusted detainee operations in Iraq to commanders who promultaged confusing and conflicting rules that were not consistent with Geneva. These confusions, in turn, were produced in part because the Pentagon had created special rules for the CIA and certain military Special Forces personnel. These ideas about what was appropriate migrated from the CIA and Special Forces rules to Iraq, Gitmo, and elsewhere. (See Marty's summary from August 2005). Although the United States' official positions were that (1) Geneva applied to the conflict in Iraq; and (2) U.S. forces complied with Geneva, Geneva was often flouted, particularly in Iraq. Karpinski's statement is important because it suggests that there was more than mere confusion at stake, that this was not the accidental migration of CIA/Special Forces techniques to ordinary military detentions in Iraq. She is asserting that Rumsfeld deliberately approved techniques for Iraq that violated Geneva (and hence the War Crimes Act). To be sure, the Military Commissions Act attempts to hold U.S. personnel harmless for what they did during this period. But whether or not this insulates Rumsfeld from prosecutions in the United States under the federal War Crimes Act (or other federal statutes), it does not insulate him from prosecution in other countries for violations of international law. The threat to the dollar
Sandy Levinson
Several weeks ago, in response to a posting on whether increasing Chinese ownership of American debt posed any threat to the US economy, there were many postings celebrating the economic rationality of the Chinese, as good capitalists, and how they had a vested interest in maintaining a strong dollar, precisely because they owned so many of them (and, of course, depended on a strong dollar, relative to the undervalued Chinese currency, to finance the trade of Chinese goods to the US). So what are we to make of the fact tht the dollar crossed what analysts view as the psychologically significant $1.30 to the Euro mark? There is no immediate news that would trigger the selling of dollars, as Floyd Norris points out in the Times, so one might consider the role played first by the increasing trade deficit of the US and rumors that the Chinese, who have no trust in the competence of the current US government (my words, not his), might hedge their dollar funds by buying some Euros. Economic rationality might not, after all, counsel hanging on to the dollar for dear life. Tuesday, November 21, 2006
R.I.P. Linda Faye Williams and Kermit Hall
Mark Graber
This weekend I attended memorial services for Linda Faye Williams and Kermit Hall. Both were good friends and even better intellectuals. Both will be terribly missed by the academic community. Sunday, November 19, 2006
This Just In (And Why We Should be Very Afraid)
Sandy Levinson
The Agence France Press has a story, based on a forthcoming piece by Seymour Hersch in the New Yorker, that offers some ominous hints about potential forthcoming Bush actions, election or no election. Excerpts follow: A month before the November 7 legislative elections, Hersh wrote, Vice President Dick Cheney attended a national-security discussion that touched on the impact of Democratic victory in both chambers on Iran policy. "If the Democrats won on November 7th, the vice president said, that victory would not stop the administration from pursuing a military option with Iran," Hersh wrote, citing a source familiar with the discussion. Cheney said the White House would circumvent any legislative restrictions "and thus stop Congress from getting in its way," he said. A current senior intelligence official confirmed the existence of the CIA analysis and said the White House had been hostile to it, he wrote. Cheney and his aides had discounted the assessment, the official said. "They're not looking for a smoking gun," the official was quoted as saying, referring to specific intelligence about Iranian nuclear planning. "They're looking for the degree of comfort level they think they need to accomplish the mission." "US President George W. Bush will not hesitate to use force against Iran in order to halt its nuclear program," Ayalon told the Maariv daily. ************************************** So the question is this: Does "democracy" entail that an incompetent President and a demented Vice-President should be able to lead the country into another absolutely disastrous war? Is it really better to run the risks that Hersch describes than to have a procedure by which their tenure in office could be terminated with dispatch? Perhaps we would have been better off sticking with King George III than revolting in the name of something called "consent of the governed," especially with regard to going to war. "Don't Worry, Be Happy"? "Don't Worry, Be Happy"
Sandy Levinson
You will find below some interesting, courteous, and thoughtful replies to my post criticizing the Constitution for its failure to provide a mechanism to displace an incompetent (and, by stipulation, not a criminal) President through a vote of no confidence. I confess, though, that I find myself frustrated by the replies, and I hope not only because they disagree with me. All of them, I believe, rest either on an insufficiently complex theory of "democracy" or, perhaps even worse, an indefensible complacence about the disastrous implications of 26 additional months of a quite-likely-to-be-unreformed Bush presidency. (Can anyone gain any confidence from what he has said in Vietnam are the lessons he draws from that venture?) No confidence (either in Bush or the Constitution)
Sandy Levinson
I note an especially interesting story in today's Washington Post about all of the rats who are leaving Bush's obviously sinking ship. Can there be any doubt that if we had a truly functional Constitution, we would today be discussing the forthcoming vote of "no confidence" in a criminally incompetent (and, perhaps, criminal as well) administration by, say, 2/3 of Congress assembled together and which Republican would be picked by the Republican caucus in Congress (subject to confirmation by the entire Congress meeting) to serve out the remainder of the term before a new election could designate a popularly-supported successor? Or are there still Balkinization regulars (among the discussants, obviously, not the "masthead" contributors) who thank their lucky stars that George W. Bush will be Command-in-Chief for twenty-six more months and thus bless a Constitution that assures his continued occupancy of the White House.
A Remembrance of Kurt Sontheimer
Scott Horton
On a recent trip to Germany, I learned of the death last year in Murnau of the great Munich-based political scientist Kurt Sontheimer. There are a number of teachers and mentors who introduced me to the world of political theory and philosophy. One of them, Sandy Levinson, is among the most industrious contributors to this blog space. However, Kurt Sontheimer was the first. The fact that I learned only this week of his death reminds me how detached I have become from the language and educational institutions of my youth; it reminds me of a lost world filled with intellectual inquiry and peace. I felt a doubled loss. Friday, November 17, 2006
Religion and politics
Sandy Levinson
I have just finished a truly stunning book, Going Down Jericho Road: The Memphis Strike, King's Last Campaign, by Michael K. Honey. It will be published by Norton in January. Based on remarkable archival work, Honey, a labor historian who has lived in Memphis, tells the story of the 1968 sanitation worker's strike in Memphis. Though long (some 600 pages), the book is illuminating about both the world of the time and, by contrast, the world of our own, when it is, among other things, unthinkable that national attention would be focused on a strike by sanitation workers. Today George W. Bush has the effrontery to take part in the ceremony marking the placement of a statue of King on the Washington Mall without the slightest understanding of what King was actually about, not only with regard to his pacificism but, in this context, to his militant devotion to economic justice and helping those at the bottom of the ladder. In the Penal Colony
Scott Horton
I am a commercial lawyer; I spend a lot of my time doing work for insurance companies. I can't claim the ability to speak with pathos. Neither do I have the ability to wield great images which may be appropriate to the topic I want to open to you this morning. You will therefore, I hope, permit me to cite another commercial lawyer who spent most of his life working for an insurance company, a man who is much more talented than I. His name is Franz Kafka, and he stood at a cultural crossroads – a cultural German, a Jew, from a Slavic Jewish family – but for me at least, Kafka is above all a lawyer; a man with a strong commitment to justice and an abiding fear of its perversion. I share that commitment. I also share Kafka's fear of the ghost which is afoot in our world today. It is a mortal threat to our world, and by failing to look it in the eye and challenge it we put our civilization at risk. This moral challenge lies, I believe, at the center of Kafka's work. Hints that the "Culture Wars" Might Dampen (But Don't Count On It)
Brian Tamanaha
The popular term "culture wars" is a misnomer. There have always been clashes among cultural views. What characterizes the contemporary situation is that these contesting cultural views have aggressively taken their battles into the legal arena, seeking to use the law as a weapon against opponents. Wednesday, November 15, 2006
It's a Matter of Life or Death, So Let's Be Honest About Jury Instructions
Brian Tamanaha
Thousands of courtroom scenes have been depicted on television and in movies, yet rarely--and perhaps never?--will you see one of the most critical moments in a trial: the reading of the jury instructions. There is a sound reason for this omission--jury instructions are long, boring, and often incomprehensible. A minute or so of listening to this would be enough to prompt almost every viewer to reach for the remote. Just raising the topic here, in this post, will send many readers clicking away. Please resist the impulse for a few moments while I provide a reality check about law that is literally a matter of life or death, and which played out as death in a US Supreme Court decision on Monday.
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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 |