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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 Bad Science and Abortion Rights
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Monday, May 07, 2007
Bad Science and Abortion Rights
Guest Blogger
Julia Frank
Comments:
I wish you would supply the missing verbiage at the beginning of this paragraph, which doesn't scan too well:
"The data supporting this claim are profoundly The articles I located through the website of the Elliot Institute, self-proclaimed as "one of the nation's leading authorities on post-abortion issues" (http://www.afterabortion.org/), either do not support the Institute's conclusions or are methodological nightmares."
I'll hazard a guess:
The data supporting this claim are profoundly ... Some choices: 1) weak. 2) questionable. 3) wacky. and my personal favorite: 4) messed up. I hope this helps. :)
I think you seriously misunderstand what the Court sees it's role as being, and how scientific evidence figures into this. The Court did not decide what abortion policy should be based on scientific theories. It was the legislature that enacted the law. The Court appears to have applied something like rational basis review to the law, which doesn't so much require the legislature to have been right, as it does that the legislature not have been starkly insane.
Welcome to the level of review most of the rest of us labor under.
Legal casuistry, including Kennedy's, is nothing new. Remember Plessy's equivocation of "separate but equal" for "equal protection?"
My intuitions may be wrong, but I believe the Court is trying to remedy some of its casuistry in Roe v. Wade with more casuistry, in order to balance its 1973 decision with the political instincts of a majority of Americans. The current "balance" seems right. Reproductive self-determination, the interests of fetal life, the autonomy of the individual, the value of a common humanity, and many other competing interests were nullified in Roe v. Wade. The current stance, unimpeded abortion before week 23, abortion for maternal health only after, accommodates our intuitions, strikes a balance, by whatever casuistry available. The "logic" is not in Kennedy's reasoning, any more than "logic" prevailed in Roe v. Wade, but in remedying a reach, by balancing competing interests, by fallacious appeals to a false science, the "logic" of political and moral instincts may yet be reached. Two casuistries may not a right make, but they may finally offset some of the injustices of fallacious unilateral decisions by an unaccountable court divining "rights" by the 1973 decision. Call it a Brown v. Education to Plessy. A remedy.
The Court appears to have applied something like rational basis review to the law
Fine. What is the "rational basis" for the notion that women are more likely to regret abortions than, say, men are to regret vasectomies? "Making shit up" is not a rational basis for anything. (And I too would like our guest blogger to edit her post.)
Anderson,
Well, it does matter what type of rational basis the court applies--"with teeth" or not. But, rational basis even allows in some circumstances the court to hypothesize about the state's justifactions. Basically, anything goes under rational basis, as long as it isn't A.) insane or B.) animus.
Recall that the opinion addresses not abortions in general, but only the so-called partial-birth abortion. In other words, the 'rational basis' supporting the ban is not that women who undergo abortions will later regret it, but that a woman who has a certain kind of procedure will regret not having had a different procedure to achieve the same result. So apparently the relieance is not only on unreliable data, but unreliable and irrelevant data.
What is the "rational basis" for the notion that women are more likely to regret abortions than, say, men are to regret vasectomies?
Men don't get emotional about such things. See "respect for human life finds an ultimate expression in the bond of love the mother has for her child." Cf. the resentment caused by circumcision.
What is the "rational basis" for the notion that women are more likely to regret abortions than, say, men are to regret vasectomies?
"Making shit up" is not a rational basis for anything. There are, in my view, two issues here. The first is why a "rational basis" test applies to abortion and how it can be consistent with "undue burden". I'll leave that aside for now. The other issue is what people mean by "rational basis". Kennedy seems to have meant "logically rational". IOW, one could rationally make the argument that women might regret an abortion (or, pace jnk) this particular method of abortion. There's nothing illogical about this reasoning and it's intuitively plausible. That's not, however, what I have understood the test to mean. I have always understood "rational basis" to mean factually rational". That, for example, is what the Court must have meant in, say, Romer (I'm going off memory that they discussed that there). A great many notions are logically rational without being factually rational.
Someone, Brett,
I thought conservatives were supposed to be advocates of judicial restraint. Rational basis means that the courts will defer the the legislature in the absence of some constitutional reason not to. You complain that "rational basis" does not mean that the legislature was right, only that it was not "starkly insane." Are you sure you want [insert name of liberal judicial activist you most dislike] to be second-guessing the legislature and deciding whether it was "right"? Brett, I know, would like to interpret federal powers as narrowly as possible, but in rejecting "rational basis," you are asking the courts to second guess states as well.
Enlightened,
What the heck are you talking about? Of course, I advocate judicial restraint (in general). Nothing I said indicates otherwise. I'm not complaing. Its called explaining. Perhaps, you misconstrued my use of "insane." It wasn't meant as a pejorative.
Gee, it's not often that Godwin's Law applies to the original post. So restrictions on abortion are the same as Nazism, huh?
Someone,
I was primarily addressing Brett, who does seem to dislike "rational basis." But you endorsed what he said.
I'm not really sure how this has any effect on the opinion, or the important question: whether the constitution actually includes a right to abortion. It's really not relevant whether abortion is the best medical decision or not.
Is there evidence that "some women" who get abortions do not then regret them? Certainly Roe herself feels bad enough to petition the court every year. You are arguing against the idea that most abortions cause psychological problems, but that's not what Kennedy was saying.
[Julia Frank, from the post]: When the Supreme Court draws the opposite conclusion, or at least gives credence to those who do, I shudder.
It's not science. It's the RW favourite: Proof by anecdote. Kennedy says (correctly) that some of the amicus materials contain claims by people that they regretted their abortions. That such should be dispositive evinces a lack of interest in scientific rigour: Were these people randomly selected? Did they have a bias or any outside interests? What would their feelings be if they had chosen differently? All left unanswered (along with a raft of other questions). That someone made a claim under oath is sufficient for the scientific ignoramus but erstwhile "legal scholar" Kennedy. Cheers,
Brett:
... which doesn't so much require the legislature to have been right, as it does that the legislature not have been starkly insane. Welcome to the level of review most of the rest of us labor under. You set a low bar for yourself. Hope you manage to clear it. My standards are a bit higher (as I've pointed out elsewhere). Cheers,
The problem with the opinion is that it has no basis in fact. The Supreme Court opinion written by Kennedy is based on the idea on what a Normal woman should think and feel. This of course is not explicitly stated but from reading the opinion one can come to this conclusion.
How a woman reacts to having an abortion is extremely personal. Some may have regrets, others may be relieved. This opinion would have made sense if there were a sizable number of women who experience regret. But there isn't. It's unfair to ban a medical procedure based on how a few individuals have regrets at the expense of many who do not. The Court could have established procedures in which some women could be provided with counseling, but it didn't. It seems to me that the Court was more interested in proving a point than actually resolving the issue.
"It's unfair to ban a medical procedure based on how a few individuals have regrets at the expense of many who do not."
Congress does a lot of things that are as unfair, and unfactually based, or even more so. As I say, welcome to the level of review most of us labor under. This was not a case of the Court making policy, this was a case of the Court, at long last, deciding that Congress was going to be permitted to make policy. Explaining this ruling does not mean that I approve of it. Unless Congress is going to act based on a claim that the unborn are people within the meaning of the 14th amendment, there's no basis in the federal government's enumerated powers for it to ban this, or any other, medical procedure. That, however, is a fight we lost long, long ago, and the people complaining about this ruling are on the winning side of it. You nurture a Levianthan, and then get stepped on, don't expect a lot of sympathy from me.
Ms. Frank:
The actual opinion states: "While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. See Brief for Sandra Cano et al. as Amici Curiae in No. 05-380, pp. 22-24. Severe depression and loss of self-esteem can follow. " Although the newspaper accounts had reduced this relatively circumspect opinion to a crude misperception, the opinion still disseminates dangerous dis-information. It is indeed "exceptionable" to make consequential claims about women's health when "no reliable data" exist to support them. What "disinformation?" The Court cited to the anecdotal affidavit evidence given by over 100 women who have undergone abortions and claim various psychological results to state: "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." This is exactly the sort of testimony which Congress routinely takes in deciding laws of all stripes and, as has been observed above, is more than enough to justify the legislation under the rational basis review. The Court made no claim that this passage was based on science of any type. Even so, that has not stopped many commentators from claiming or implying that the Court has made a scientific finding. I think you were better served by your initial and correct reaction that this was a circumspect passage.
"Bart" DePalma:
The Court cited to the anecdotal affidavit evidence given by over 100 women who have undergone abortions and claim various psychological results to state: "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." This is exactly the sort of testimony which Congress routinely takes in deciding laws of all stripes and, as has been observed above, is more than enough to justify the legislation under the rational basis review. So if we can get 100 people to swear that Dubyaism is mind-rotting, we can ban it? We even have some clinical data to bakc that one up.... Cheers,
There's a great deal wrong with Justice Kennedy's pop-psychology generalization about women and abortion even if he did cite "affidavit evidence" of "some" women.
The commentator cites some objections. Another objection not often heard, and not really welcome in polite company, is the fact that "some" women regret giving birth as episodes of infanticide, child abuse and neglect obliquely attest. How many women feel this way? I have no idea. It's not none. Since it is such an unacceptable idea that women do not want the children they bear, it would probably be very difficult to collect court-worthy affidavits. Justice Kennedy mentions 100 plus "regrets." If we multiply that 100 plus by 100 and so come up with an extremely rough guess of 11,000 women who regret an abortion every year (and the affidavits span several years) one can calculate the 0.9% of women come to regret their abortions - based on 1,300,000 abortions yearly. To suspect that an equal percentage of women regret their children might or might not be unreasonable. (This is, I admit, getting pretty tenuous, and more than a little silly. But so is Kennedy's argument.) Let us halve the percentage - 0.45% of 4,100,000 live births - gives us 18,400 women who yearly regret their children. So what have we proven. Nothing really. The psychological state of the patient has little or nothing to do with which medical procedure should be used in any given instance. No one denies, for example, that open coronary artery bypass is followed by far more physical and psychological morbidity than angioplasty. That "some" patients experience more anxiety beforehand and more depression after open heart is, however, never advanced as a reason to avoid open heart procedures when the patient's condition indicates that it is the best option. The patient's life and future health depend on the most appropriate procedure being used. And yet, Justice Kennedy suggests, and many here seem to agree, that future problematic psychological morbidity is sufficient reason to ban a certain physical procedure which is often safer for the patient. This opinion does not change the abortion. Just the method of doing it. This is an irrelevant, illogical and ultimately dangerous argument. The Justices who used it should be embarrassed. Anyone who has studied for a profession should be uneasy. It is clear that the professional ends are okay, but means may be disallowed on irrelevant grounds.
What is curious is not that the Court made a passing reference to the fact that some percentage of women claim to suffer psychological after affects from killing their unborn children, but rather that the scientific community has not been investigating this decades old hypothesis.
What is there to fear from doing such research? The results?
"Bart" DePalma:
What is curious is not that the Court made a passing reference to the fact that some percentage of women claim to suffer psychological after affects from killing their unborn children, but rather that the scientific community has not been investigating this decades old hypothesis. What is there to fear from doing such research? The results? I dunno, "Bart". I think that it may be more worthwhile to investigate and hopefully cure the phenomenon I mentioned in my previous post. It was of epidemic proportions and a clear public health menace, albeit it may possible have crested and be on the downhill slide with an incidence rate of approximately 28 percent. Cheers,
What is curious is not that the Court made a passing reference to the fact that some percentage of women claim to suffer psychological after affects from killing their unborn children, but rather that the scientific community has not been investigating this decades old hypothesis.
What is there to fear from doing such research? The results? Good question. Please forgive the length, but a little one-second search on Web of Science for [abortion regret] gets us these studies. I've redacted their abstracts, but not their meaning, and provided citations for those who want to know more about the methodologies used. Kero, A, Hogberg, U, Lalos, A Wellbeing and mental growth - long-term effects of legal abortion SOC SCI MED 58 (12): 2559-2569 JUN 2004 The study shows that women generally are able to make the complex decision to have an abortion without suffering any subsequent regret or negative effects, as ascertained at the 1-year follow-up. Title: Induced abortion and concurrent adoption of contraception in the rural areas of India (an ICMR task force study). Author(s): Dhillon, B S; Chandhiok, N; Kambo, I; Saxena, N C Source: Indian J Med Sci 58 (11) : 478-84 2004 Nov A total of 1851 women who had an induced abortion during the previous 3 years were interviewed...Regret for abortion was expressed by 29.6% of the women. However, only 7.2% said they would not advice others for induced abortion. Title: Psychological responses of women after first-trimester abortion. Author(s): Major, B; Cozzarelli, C; Cooper, M L; Zubek, J; Richards, C; Wilhite, M; Gramzow, R H Source: Arch Gen Psychiatry 57 (8) : 777-84 2000 Aug CONCLUSIONS: Most women do not experience psychological problems or regret their abortion 2 years postabortion, but some do. Those who do tend to be women with a prior history of depression. Title: [Psychological consequences of induced abortion] Vernacular Title: Psykiske folger af provokeret abort. Author(s): Schleiss, L; Mygind, K A; Borre, R V; Petersson, B H Source: Ugeskr Laeger 159 (23) : 3603-6 1997 Jun 2 Language: Danish Abstract: One hundred and thirty consecutive women were interviewed about the development of psychological symptoms related to induced abortion two days before and four months after the abortion. Sixty-one (47%) participated in the second interview. Of the 61 women, 52% were psychologically influenced before the abortion to an extent which indicated severe crisis or actual psychiatric illness. Four months after the abortion 13 of these women were still psychologically affected. Furthermore, five women who were not affected before the abortion had developed psychological problems. Among ten of these women (16%) the physiological problems could only be related to the circumstance in connection with the abortion. For a number of women (30%) the abortion had a negative influence on their relationships and their sex lives, whereas other claimed that their relationship had become closer because of their reactions towards the abortions. In spite of these conditions all women indicated that their decision about the abortion had been the correct one under the given circumstances. Title: Late psychological sequelae of abortion: questions from a primary care perspective. Author(s): Butler, C Source: J Fam Pract 43 (4) : 396-401 1996 Oct Research strongly supports the view that pregnancy termination is seldom associated with adverse psychological sequelae in the short to medium term, but experience shows that there is a small group of women who experience long and intense suffering. Title: Emotional response to abortion: a critical review of the literature. Author(s): Turell, S C; Armsworth, M W; Gaa, J P Source: Women Ther 9 (4) : 49-68 1990 Other Abstract: Anti-abortion groups in the US cite the existence of a post-abortion syndrome--a sense of loss, emptiness, and grief similar to that reported by trauma survivors. Although research on the longterm effects of induced abortion is marred by methodological errors, most studies have found no adverse psychological sequelae; rather, there appears to be a sense of relief and opportunity for personal growth. Nevertheless, there is a small group of women who do experience emotional distress after abortion and it is important to identify the demographic, social, and psychological factors that place women at risk of such a reaction. In terms of demographic factors, young age (adolescence), low or nulliparity, 2nd-trimester procedures, and Catholicism have been characteristics of women who suffered post-abortion depression. Of the social variables that have been examined, a lack of support from significant others (parents or partner) has been linked in some studies to emotional distress after abortion. A relatively consistent finding is that women who feel coerced to abort or are ambivalent about their decision at the time of the procedure are most likely to experience regret, depression, and anger. Title: Psychological sequelae of induced abortion. Author(s): Romans-Clarkson, S E Source: Aust N Z J Psychiatry 23 (4) : 555-65 1989 Dec The methodology and results of studies carried out over the last twenty-two years are examined critically. The unanimous consensus is that abortion does not cause deleterious psychological effects. Women most likely to show subsequent problems are those who were pressured into the operation against their own wishes, either by relatives or because their pregnancy had medical or foetal contraindications. Legislation which restricts abortion causes problems for women with unwanted pregnancies and their doctors. It is also unjust, as it adversely most affects lower socio-economic class women. Title: Psychiatric sequelae of induced abortion. Author(s): Gibbons, M Source: J R Coll Gen Pract 34 (260) : 146-50 1984 Mar The outcome for women who were refused an abortion and the effects on the children born as a result have been discussed in several studies. In 1 survey, 24% of 249 women who were refused abortion were significantly disturbed after 18 months. Many studies comment on the value of counseling in the abortion decision, but few comparison studies have actually evaluated abortion counseling. A large amount of previously reported research on the psychiatric indications of abortion may be unreliable because women seeking abortions on mainly social grounds used to have to show psychiatric disturbance in order to obtain a legal abortion. Title: Abortion: a technique for working through grief. Author(s): Buckles, N B Source: J Am Coll Health Assoc 30 (4) : 181-2 1982 Feb Studies have shown that very few women experience significant depression in the weeks following abortion and most have strong feelings of relief and happiness; what mild feelings of guilt, regret, or remorse do exist immediately following abortion tend to diminish quickly. Traditionally attitudes were that abortion could even precipitate psychosis and cause infertility, depression, and sexual dysfunction. The findings of a 1963-65 study of 116 women who underwent abortions indicate that few women had regrets immediately. Studies done after the 1973 Supreme Court decision conclude that even psychiatrically disturbed women who undergo abortion remain stabilized or improved afterwards. Women who do have postabortion problems are usually those who were late aborters, who feel that the decision was not freely made, or that the pregnancy fulfilled certain needs. So, clearly decades of scientific research HAS been done. We can argue over whether the few should outweigh the majority in policy decisions or whether rational basis review trumps science, but Dr. Frank is absolutely correct when she says that Kennedy's assumption of how women respond to abortion was "cavalier and misguided."
pms:
Thanks for the summaries. Do you have a link to where you obtained this list? In any case, these studies appear to nearly all confirm the Court's observation: "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." Indeed, there appear to be a subset of women whose trauma goes far beyond regret. However, the sample sizes of these studies appear to be very small and I am unsure of what methodology was used to identify these populations. Additionally, the time periods are also often limited. Therefore, I am not sure how reliable the findings are. Does anyone know if the massive nurses' health database used for may more comprehensive studies contains data sets for abortion and psychological problems?
"Bart" DePalma [to PMS_Chicago]:
Thanks for the summaries. Do you have a link to where you obtained this list? In any case, these studies appear to nearly all confirm the Court's observation: "it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained." Indeed, there appear to be a subset of women whose trauma goes far beyond regret. However, the sample sizes of these studies appear to be very small and I am unsure of what methodology was used to identify these populations. Additionally, the time periods are also often limited. Therefore, I am not sure how reliable the findings are. Does anyone know if the massive nurses' health database used for may more comprehensive studies contains data sets for abortion and psychological problems? In five simple words, "Bart": Do your own freakin' research! <*SHEESH*> I know "scholarship" ... nay, reading ... is not one of your strong suits, but Google is your friend. Not to mention the blindingly obvious: PMS_Chicago told you how he got that list. Cheers,
arne:
The poster citing to an authority to make an argument, not the reader, has the responsibility to link to that authority if possible.
However, the sample sizes of these studies appear to be very small and I am unsure of what methodology was used to identify these populations. Additionally, the time periods are also often limited. Therefore, I am not sure how reliable the findings are.
You're right to worry about methodology and sample size. In many cases, the numbers are fairly low, but of course, it doesn't take that many people to get an accurate cross-section of the population-at-large. Most of the studies quoted there used some form of random sampling, which alleviates biases in the data. The data used in studies that claim the opposite relation (that abortion leads to regret and psychosis) are often self-selected groups. That is, no random sample was performed, and they therefore are not adequate samples of the population at large. Often they are from the same church or denomination, and are biased towards certain types of people. In short, they do not constitute a representative sample, and any findings based on such data are unreliable. It's bad science. Indeed, there appear to be a subset of women whose trauma goes far beyond regret. And that subset is generally disturbed prior to the abortion, too. I wonder to what degree you would have us sacrifice medical procedures because they didn't cure pre-existing emotional problems. As for the link to the database, I have access through my university's library. Here's a link to the Web of Science product page. If you don't have access already, you might find a way to get it through Thomson Scientific. Not sure how much that would cost, but it might be worth it in the long run if you enjoy debating scientific issues like global warming and the psychological effects of abortion. :)
"Bart" DePalma:
The poster citing to an authority to make an argument, not the reader, has the responsibility to link to that authority if possible. Hah-ha-ha-HA-HAHH-hah-heh-heeeee. Umm, that's a good one, "Bart". You're such a kidder. Really. Gotta love your cites, when you actually come out with 'em (which is rare, even when asked). Then there's that little contretemps with the Watergate minority report of yours, your cite of Brown II, etc..... Thanks for the laugh. Made my day. Cheers,
What I find more profoundly disturbing is the number of women who aren't troubled by killing their unborn children. What does that say about our society, when the mothers, can, evidently, not suffer emotional repurcussions for killing their young. Especially, when the vast, vast majority are NOT for rape, incest, or physical health issues. The vast majority of abortions occur for what is broadly construed as "convenience" reasons. That is what I find truly disturbing.
The moral and legal repulsiveness should not hinge on regret. Do we say a murderer should go free if he doesn't regret what he does? No, I don't think so. Regret is irrelevant. thanks so much i like very so much your post حلي الاوريو الفطر الهندي صور تورتة حلى قهوه طريقة عمل السينابون طريقة عمل بلح الشام بيتزا هت كيكة الزبادي حلا سهل صور كيك عجينة العشر دقائق طريقة عمل الدونات طريقة عمل البان كيك طريقة عمل الكنافة طريقة عمل البسبوسة طريقة عمل الكيك طريقة عمل عجينة البيتزا فوائد القرفه
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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 |