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Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Bush Administration Vindicates Critical Legal Studies
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Thursday, May 03, 2007
The Bush Administration Vindicates Critical Legal Studies
Brian Tamanaha
Critical legal studies is often dismissed today as a faddish movement of comfortable, radical leftist intellectuals at elite law schools who, in the 1970s and 1980s, spouted extremist nonsense about the law. For those who don’t know, the core of CLS thought can be pared to its mantra: “law is politics” (through and through). CLSers criticized legal liberalism for putting up a surface neutrality that conceals the deeply ideological bent and bias of law.
Comments:
Professor Tamanaha,
It seems a trifle impertinent to say, "Welcome to the fold," but I'll risk it anyway. Welcome. My grounding in CLS isn't entirely orthodox, in part because I part company with the Marxists. Marx, as a thinker, was the type who would divide by zero. But the central premise, "law is politics" seems unavoidable. Law certainly is power, and power is unavoidably political. But I think there is an even deeper manifestation of this problem with not only the current administration but within the GOP core, perhaps best symbolized by the infamous 1996 GOPAC memo. In that memo Gingrich exhorts members to consciously craft their every communication using "good" words for their party's efforts and "bad" words for the opposition. While undeniably effective, such measures have a serious drawback---they lead to the demonizing of the opponent. Having demonized all who oppose, what incentive remains to allow for checks, balances, second thoughts, wider or multiple views? The simple tragic flaw of the GOP as we see it today, 11 years after this memo, is that of hubris, the belief that they can do no evil and their opponents have nothing to offer. Accept those premises and the acts and ideas of even Bush the Younger or John Yoo aren't so hard to fathom. Law is politics, because law is power and power is politics. And some political players are playing a zero sum game, playing to win. Others are playing a win-win game where all participants are valued. My CLS would be the latter, and we could use you on our team.
Bleh, I would just use another tool of CLS. Liberals decry the Bush administrations use of politics. Well, of course they do, because liberals have successfully defined the status quo as somehow non-partisan. In fact, much of the current nonpartisanship is in fact very partisan--towards liberals. So, the current status quo and its definition is merely a facade for the political agenda of liberals. The decrying by liberals of the Bush administration's techniques in the DOJ, etc... is an effort to keep what is in essence a political status quo that helps them. Well, Bush is tearing down this struture of liberal political hegemony. He is exposing it at the roots for what it really is. He is only using politics to expose the politicization that has already occured and to demystify this structure of power.
See, this is fun.
"The Bush Administration has vindicated CLS."
No, the exact opposite has happened. The Bush administration has shown the danger of CLS when it's more than just a vague theory about power. Once power is considered the base of all things political, power begins to manifest itself at all level of government. And this is hardly the first time that this has occurred--just look at Weimar Germany for an example. And CLS in practice damns legal realism just as surely as communism damns comprehensive state socialism. For both, you have one theory taken to its extreme conclusion. It looks beautiful as a theory, as well as satisfying some intuitive ideas about how things work. But for both the secondary effects overwhelm any possible benefits that might accrue. It is easy to scoff at the foundations of natural law. It is much more difficult to have an alternative theory, the practice of which completely corrodes any ideals the theory attempts to espouse.
Someone: ...much of the current nonpartisanship is in fact very partisan...see this is fun.
Yup, loads. Your example puts me in mind of a television show which regularly features one of recent history's most partisan players, yet which bills itself as a "No Spin Zone." Yet there is a difference. In my example we have one side self-servingly (i.e., to great commercial profit) doing what you only accuse the other side of doing in the abstract. There's further fallacy to your argument, in that you use "liberal" imprecisely and inconsistently. To the extent our Constitution is aimed at preventing tyranny and maximizing liberty then non-partisan support of the Consitution must by definition be "liberal." But someone (although I can't speak for any particular someone) prefers to reserve liberal as a connotative brush rather than risk a look at any substantive descriptive values denoted thereby. Thanks for playing. Don't forget your consolation prize on the way out...
zathras: It is easy to scoff at the foundations of natural law. It is much more difficult to have an alternative theory, the practice of which completely corrodes any ideals the theory attempts to espouse.
Feh. You flatly assume that which is to be proven. You can do better, and must if you want to be taken seriously. Do you contend theories of "natural law" are less prone to being picked apart or collapsing under the weight of their own injustices and inconsistencies? If so, how do you support such a naive claim? If this isn't your claim, just what are you asserting? Or were you only engaging in another connotative smear absent substantive merit?
Robert,
Whatever the flaws of various theories of natural law, at least they do not carry the seeds of their own destruction like legal realism and CLS. If you believe in the absence of any fundamental principles, it is hard to take legal structures seriously. If democracy is just a social construct, why not overthrow it and have the Leader impose his will on the people? If the right to be free from torture is not absolute, then go ahead, torture, no matter what that scrap of paper the Constitution says.
Zathras: If you believe in the absence of any fundamental principles, it is hard to take legal structures seriously.
Straw man; no one has put forth the claim that there are no fundamental principles. Try again. Or not. No big deal. Unless you actually have some substantive claim to make which you would like to have taken seriously. I won't be holding my breath. The closest you come is to state, "[theories of natural law] do not carry the seeds of their own destruction..." Seems to me there are entire schools of thought based on the error of this statement. I trust I don't need to invoke them by name, that a quick look at the title of this thread will suffice to refresh your memory? As for me, I like to think that CLS is based on the Natural Law that while Might makes Might, it doesn't necessarily make Right, and that law is a function of Might always, Right only when Might has conscience, compassion, wisdom, themselves born of human interaction, breaking bread rather than arms. To which end I invite private correspondence, if you are so inclined. We can struggle mightily but without acrimony, if we can establish some common humanity. beau ( a t ) oblios-cap ( d o t) com.
Robert,
Lol. Its not in the abstract. Career bureaucrats in the government in general and the DOJ in particular are predominantly of the liberal persuasion. Your accusation only goes to my point. Your defense of the status quo is only to maintain the illegimiate hierarchies of power that exist in the current institutions. If they are illegitimate in that they exist to serve the unequal balance of ideological power within the institutions, then it is necessary to use political power to remove these false hierarchies. As to my "liberal" fallacy, please tell me that you are joking. You do realize, I hope, that the use of one definition of a word in no way undercuts the formal valilidity of my argument. Perhaps you are not familiar with the many uses? Allow me to help you. You seem to be referring to "classical liberal" values. I value them as well. I used the term liberal to designate a part of the political/ideological spectrum--it was more than obvious. Furthermore, that is how the term liberal is used most often in discource. Attacking me for using a term by one of its definitions instead of another just doesn't make any sense in this context. The fallacy is all in your head. Perhaps next time you will make a substantive rebuttal.
Robert,
Please explain how CLS can assert the "rightness" of anything. As a matter of theory, it cannot provide the answers, only possible answers, without being able to explain why one is better than another. Your appeals to "conscience, compassion, wisdom" just don't make any sense in a CLS context. Identity and the individual are social constructs, how can rights be attached to nothing?
someone: ...Your defense of the status quo...
Excuse me? I defended the status quo? Please support your claim. All I did was poke fun at your nonsense about "the current non-partisanship", which is not the same at all. As for not being in the abstract, my example was sufficiently specific for you to check your tv guide and catch the next broadcast. Yours remains, well, abstract, general. Regarding my complaint about your abuse of the word, "liberal", you mis-state me. I did not call you out for using the wrong meaning. I called you out for self-serving shifts of illegitimate pejorative connotation and value-free denotative ambiguities. Sandwiching your comments between a "Bleh..." and "See, this is fun." speaks to reliance on passive-aggressive attacks of connotation in lieu of substantive, good-faith engagement on issues. I responded in kind. someone: Your appeals to "conscience, compassion, wisdom" just don't make any sense in a CLS context. Really? I suppose we will have to agree to disagree on this. I do not personally have experience with any context where those three abstracts don't make sense or are not worth striving for. I said up front that my take on CLS is unorthdox. I'll extend to you the same offer I made to zathras; if you're really interested in dialog send me a private email saying so. I truly am open to strong dispute with good-faith interlocutors. If I have misjudged you I will apologize. You can search the archives and see it does happen from time to time.
Robert,
It isn't a fallacy when I use the word liberal to denote a particular part of the political spectrum, as well as its connotative meaning. You may not like me using as a pejorative and descriptive term, but you umm... break new theoretical ground to say its a fallacy (at least in how I used it.) The status quo is the political makeup of the career bureaucrats of the government, before Bush began his house cleaning measures. That is what liberals are trying to maintain by stopping Bush, so this complaint of yours makes no sense. Finally, there are "unorthodox takes" on CLS, and takes that are flatly contradictory to the tenets of the theory. It isn't CLS if you deny the very things that comprimise the theory. Of course, this assumes that CLS can be anything beyond a social construct itself . . . and round and round we go. Haha, okay, I'll stop. I've been pulling your leg the whole time. This is actually Humble Law Student. I still use that account, but for reason everytime I post a message, it lists my name as "someone" even though I use my humblelawstudent account.
No, the exact opposite has happened. The Bush administration has shown the danger of CLS when it's more than just a vague theory about power.
Vindication and demonstration of a position can co-occur, and are not polar opposites. Most social theory intends to explain observed relations between social elements, rather than prescribe how those elements should be arranged. Furthermore, the accuracy of a social explanation is not contingent upon the benefits that society gains through the arrangement; society and its laws are perfectly capable of being non-adaptive.
PMS_Chicago,
I agree that much of contemporary social theory is framed in this way. However, there is a pervasive nihilism in actual approach taken which causes such theorists to focus on negative motivations, and this skews any analysis. Analysis is done is terms of power. Even ostensibly altruistic acts are assumed to have an ulterior motive. Taking such a superficially pragmatic approach skews the analysis. To echo something I said earlier, it is trendy in academe to be flippant of moral values. However, such a 1-dimensional view of one of the most pervasive aspects of society necessarily gives a very imperfect view of society.
someone: I've been pulling your leg the whole time.
SNAP!!! B^) Been wondering where ya was, and dang glad to see ya. You might, if you're willing, take a moment to substantiate that I really am capable of apologizing when I'm in the wrong. someone: You may not like me using as a pejorative and descriptive term, but you umm... break new theoretical ground to say its a fallacy (at least in how I used it.) I admit to trying my damnedest to do exactly that, to break new ground. Lakoff has tried to make it about "framing" but I think he's really missed the boat. I think the meta-frame of "dialectic or debate", of "cooperative venture or zero-sum game" is the first order of business. Next is recognizing that what Newt teaches in the 1996 memo isn't about substantive framing as Lakoff would have it, but about connotative framing, which is much oilier and corrosive. So, yes, I very much do look for examples of use which allow plausible deniability with respect to the pejorative connotations. someone: The status quo is the political makeup of the career bureaucrats of the government, before Bush began his house cleaning measures. Nonsense. Or at least self-serving. The status quo is what is at the moment. If you get to start picking other moments then the term really does lose all meaning. Right now the status quo is post-aids, post repudiation of 60s hippie culture, post Reaganomics, post the development of hugely successful commercial political infotainment from Rush and Ann and Bill, post GOP capture of all three branches, and, frighteningly, largely by that segment of the GOP which can say with a straight face that things "could get so bad" that we should consider naked fascism. I hesitate to point out that the difference between a military takeover and a popular revolution is profound, despite the truth that both would feed a certain tree with blood of two different types. Maybe Jefferson should've been more specific on that formula. someone: this assumes that CLS can be anything beyond a social construct itself . . . and round and round we go. Indeed. I part company with the marxists and traditional cls, I suppose, not in the least for my insistence in the ubiquity of certain human values at the individual scale which cannot be supported logically at the societal scale. I have a simple system: What is hateful to me I will not do to another, and I try to brighten the corner where I live. In 40+ years of searching and reading and thinking and practicing these two seem sufficient. Any system which fails to incorporate them, in some recognizable fashion, strikes me as morally bankrupt. But I am not hobbled by a foolish consistency, so don't bother waving your hands about my invocation of morals here. There is an argument that the reason against having a bill of rights was not that the rights weren't inalienable and didn't need protecting, but rather that any attempt at a black-letter, legalistic enumeration thereof is bound to be "gamed" by those who profit from abrogating them. Some days I think that argument is wiser than we give it credit for. How's your studies going? Obviously I'm neglecting mine this week in favor of playing here...but that will probably end tomorrow. But after seeing, meeting Prof. Levinson last week, well, I couldn't stay away.
Law, in liberal principle, is meant to legitimate power, by at least going through the motions of pretending toward some kind of objectivity. That always struck CLSers as at best naive, more likely hypocritical, and perhaps simply a cynical ploy. They were wrong then, and they are wrong now, and the Bush regime actually proves it.
What the Bush regime has done is to show that even if the pretense of objectivity is never complete, it is nonetheless important to demand that such a pretense be maintained, because giving up on the pretense of objectivity fundamentally delegitimates institutions which, at the end of the day, we need. The Bush regime in the nakedness of its politicization, undermines core values without which a Republic cannot survive. These institutions may be based on a fundamental hypocrisy, but that's better than the naked exercise of power. Marriage generally is based on fundamental hypocrisy, too, but that doesn't mean it's not better than the alternatives.
I would make a related, but I think more precise, and so more comprehensive, point.
The proper motto of the Bush administration is not "law is politics." It is "the party is the state." The natural corollary, of course, is that "nothing outside the party can be in the state." Hence the recent published fantasies of dictatorship and military coups by people like Mansfield and Sowell. As the prospects for their defeat grow, the right's attacks on the legitimacy of any government headed by Democrats - and, indeed, constitutional government per se - will necessarily grow. They spent eight years denying the legitimacy of Bill Clinton's presidency. That was batting practice compared to what's coming.
Not knowing much about CLS, I assume that it's another post-modernist attempt to tear off the mask. But the problem is that the mask is important, if not essential to the functioning of any system - all systems of law, religion, ritual and such require a mystification of their underlying realities to function in any sense.
The law is like social signaling systems in biology. Male rams, for example, need to know who would be the strongest in a fight. But if they fought no holds barred every time, even the big boys would get severely damages. So instead they butt horns, which to a large extent approximates their relative physical power. Now, for this to work, the rams do need to know that they are signaling their relative strengths; in all actuality, the stability of the system is enhanced by none of them knowing, and thereby avoiding some "smarter ram" taking advantage of his ability to choose when to play the game, and when not to. In that case, the system would quickly collapse and the rams would be returned to a "state of nature" that is in no one's best interest. A similar case is with vows. Many systems have a need for honesty at some level, so they've developed vows, that are by definition true (see Austin on operative language). However, many of these systems depend on an irrational base: some invocation of deity or other magical sanction. That sanctification is needed to keep people from seeing the underlying reality of the vow. As soon as they recognize the practical basis of the statement, the system of vows is liable to falling apart - the mystery is essential to distinguishing vows from normal statements. The same occurs with the associated rituals: they need to appear sacred to avoid awareness of the play-acting going on. This is a general problem with most post-modern critiques. They recognize the power and function of the mask, but they forget to look at the real alternatives. Sometimes it's better to tie the tyrant down in his own legitimacy, than to allow the tyrant to openly display his power. We lose out as much as the tyrant does when he's forced to actually use his power. On the other hand, when the mask does not correspond to the real underlying power, obviously some rewriting of the script is in order.
Someone,
Your statement that the current status quo is partisan and George Bush is "cleaning house" is a bit too vague for me. What are you proposing to replace the current liberal bias? A conservative bias? True non-partisanship? A balance that can swing either way depending on who is in charge? And whatever you are proposing, what will it look like?
Someone,
You write, "The status quo is the political makeup of the career bureaucrats of the government, before Bush began his house cleaning measures. That is what liberals are trying to maintain by stopping Bush." Surely you realize that the GOP held the White House for 20 of the 32 years prior to Bush 43's inauguration, right? If Bush is engaged in "house cleaning," the next President will have to re-enact Hercules's time in the Augean Stables.
To all,
My statements were mostly tongue-planted-firmly-in-cheek. I don't believe most of the CLS nonsense. CLS does have some limited contributions to make, but it hardly provides a legitimate meta-explanation of the law.
Someone,
You don't believe that people act in their own perceived interest? Funny kind of conservative you are!
Random,
Lol, there you go with your caricatures again. Conservatives would say that individuals generally act in their economic self-interest, but at the same time many conservatives would say there are "objective goods" or "moral truths" that we should pursue outside of limited self-interest. Libertarians, in particular those who follow the economic analysis of the law (Posner) would argue that people generally don't act outside of their own self-interest--conservatives don't believe this, only in a narrower sense. You know, random, this would be a lot more beneficial if you made a half-hearted attempt at understanding. . .
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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 |