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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 George W. Obama and Barack Hussein Bush: Some Notes on the Presidential Politics of Emergency “This Is No Picnic for Me Either, Buster”: Obama and Outliers Put Your Money Where Your B-Tush Is Cyber Civil Rights Collateral Damage: Reforming the National Fugitive Operations Program Why it's fallacious to compare the stimulus bill to, say, reforming the medical care system A Voucher System for Investigative Reporting Silverstein, LAW'S ALLURE It may be morning in America, but we still have the same defective Constitution Redux: Does Broadband Belong in the Economic Stimulus Package? Watching the Watchmen Watching for Stimulus Abuses The fall of Qi Yuling Money in Crisis: Revisiting the Legal Tender Cases An Offer Republican Governors Can Refuse The Bush Presidency and Theories of Constitutional Change (Part II)
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Saturday, February 28, 2009
George W. Obama and Barack Hussein Bush: Some Notes on the Presidential Politics of Emergency
JB
You may have noticed that Barack Obama, like George W. Bush before him, is taking advantage of the opportunities presented by emergency. Or, more correctly, he is taking advantage of the President's first mover advantage to define the situation before him as an emergency and to assert that bold, decisive action is necessary to avert the particular sort of crisis that he claims the nation now faces. Friday, February 27, 2009
“This Is No Picnic for Me Either, Buster”: Obama and Outliers
Ian Ayres
Crosspost from Freakonomics: My favorite Obama quotation is not one of his most poetic: He had me at “buster.” I love these words because they seem so clearly not to be his voice. He is letting his mom’s voice be heard. Even now, I find myself crying when I watch this clip: Maybe part of my emotional reaction is that, like Obama’s mother, I have forced my kids to get up at ungodly hours to study in the morning. We have been doing “daddy school” in the morning and during the summer for years. When my 7-year-old daughter said she desperately wanted a dog, I told her (in a twist on another Obama story) she could have one if she published an article in a peer-reviewed journal. And then we worked together on a family statistical project for more than two years to make it happen. Our dog is named Cheby (Shev) in honor of a statistician. Obama’s “buster” story came back to me as I was reading Malcolm Gladwell’s excellent new book, Outliers: The Story of Success. Gladwell writes beautifully, and I like this book even more than Blink or The Tipping Point. In story after story, he destroys the simplicity of the raw-genius explanations for personal success that we love to tell. Gladwell insists that there are always background conditions of opportunity and good luck that are equally, if not more, important. Many of these opportunities come from parents, but some come from cultural advantages. For example, he tells about the linguistic advantage that Chinese speakers have in math. Fourteen and 23 are hard to add in English (because linguistically, 4 comes before 10 in 14, but 3 comes after 20 in 23). But in contrast, Chinese has a much less idiosyncratic linguistic system, as Gladwell explains in the book: Gladwell also argues that the crushing difficulty of maintaining successful rice paddies has tended to make hard work a more central part of Chinese culture than many Western cultures. He points to this Chinese proverb: No one who can rise before dawn 360 days a year fails to make his family rich. (p. 238) What scares me a bit about the book (and myself) is the normative gloss that Gladwell puts on the hard-work ethic. He doesn’t renounce the 360-day proverb; he seems to embrace it. He openly extols the Bronx KIPP Academy, where school starts early and goes half the day on Saturdays, and for several weeks in the summer. (KIPP’s plan actually sounds a lot like my “daddy school,” which I wrap around my kids’ traditional school day.) Gladwell wants society to open up opportunities to work hard — with programs like KIPP — so that many more people have the chance to succeed. To be clear, the book is about the many different contextual elements that are prerequisites to success — and practicing some skill for 10,000 hours is only one of them. In the very last sentence of the book, harkening back to the factors that led to his mom’s rise from poverty in Jamaica, Gladwell poetically asks: [I]f the resources of that grocer, the fruits of those riots, the possibilities of that culture, and the privileges of that skin tone had been extended to others, how many more would live a life of fulfillment, in a beautiful house high on a hill? (p. 285) For Gladwell, the answer is pretty clearly “A lot more.” But the book, in hinting at this normative thesis, fails to consider the wisdom of Robert Frank. In The Winner-Take-All Society, Frank and coauthor Philip Cook argue that changes in the productive technology in many fields have concentrated the benefits from success in a smaller and smaller set of winners. When you can listen to a Kathleen Battle CD, why would you buy any other soprano’s recording? Frank would argue that if we subsidize the opportunities for a million more people to study voice, we would probabilistically produce a better winner. But most of the gains would still go to the winner. We would still just have one beautiful house on the hill. I’m taking such an active part in my kids’ education mostly because I want to imprint on them my idea of the good life, but partly because (even before reading Outliers) I have bought into Gladwell’s thesis that opportunities are crucially important. What gives me pause, though, is that I also accept Frank’s thesis that there are a limited number of houses on the hill. I selfishly want to increase my kids’ chances of success. But a less selfish part of me is attracted to Frank’s idea that society should do just the opposite of what Gladwell wants and dampen the rat-race incentives to get up before dawn 360 days a year. Thursday, February 26, 2009
Put Your Money Where Your B-Tush Is
Ian Ayres
Crosspost from Freakonomics: Thanks to The Times’s nice writeup (“Dieting? Put Your Money Where Your Fat Is”), an Internet company that I helped found, www.stickK.com, has been getting a spike in commitment contracts. As readers of this blog know, stickK (shameless plug) is a commitment store that helps you stick to your goals. We’ll elicit support from your friends. We’ll nag you if you want. And most uniquely, we’ll let you put your own money at stake. It’s still hard for me to believe that in just over a year, people have been willing to put at risk more than $1 million in their contractual commitments. Readers of this blog shouldn’t be surprised at the power of incentives. But The Times recently ran a piece that is also near and dear to my heart — emphasizing the power of peer pressure to change behavior. Positive Energy has been working with the Sacramento Municipal Utility District to test the impact of giving customers a different kind of information on their energy bill: Last April, it began sending out statements to 35,000 randomly selected customers, rating them on their energy use compared with that of neighbors in 100 homes of similar size that used the same heating fuel. The customers were also compared with the 20 neighbors who were especially efficient in saving energy. Customers who scored high earned two smiley faces on their statements. “Good” conservation got a single smiley face. Customers … in the “below average” category got frowns, but the utility stopped using them after a few customers got upset. The exciting news is that “customers who received the personalized report reduced energy use by 2 percent more than those who got standard statements.” This isn’t a surprise to Robert Cialdini (the author of the classic book Influence), who back in 2004 published a small, randomized study of 290 households in San Marcos, California — again looking at the impact of emoticons (those smiley and frowny faces) on energy consumption. The following figure summarizes the core results: Peer information alone led to a reversion to the mean. The households that consumed above the average reduced their consumption, while the below-average households responded to the good news that they were consuming less by increasing their energy consumption. But look what happens in the right-hand columns where peer information is paired with the emoticons. The above-average energy consumers again conserved, without the perverse energy increases from the households that started below average. It looks as if these conserving households act to keep their gold star of approval. There is also a great writeup of this study as a prime example of choice architecture in the book Nudge. The independent power of the emoticons shows that what’s going on is not just the dissemination of information; it’s about how the information is framed. In Sacramento, Positive Energy ultimately discontinued sending out the emoticons after a few complaints. But an intermediate strategy would be to discontinue the frowny faces to the energy hogs but continue sending out smiley faces to the “good” conservationist households. I should add that Cialdini has a financial interest in these outcomes, as he owns a stake in Positive Energy. I also have more than a passing interest. I’m working with Positive Energy to analyze future data on the power of both peer information and commitment contracts. I’ve also been promoting the value of peer information for the last few years. Back in 2005, Barry Nalebuff and I published an article in Forbes, arguing for something right in line with Positive Energy’s core mission: Why not have the heating bill tell you if you’re using too much energy? Most heating bills report how much gas or electricity you used last month compared with a year ago. A lot of them also report heating degree days (how far and how long the temperature veered below 65 degrees over the course of the month). But this pair of numbers isn’t very helpful. Together they don’t tell you whether you need to upgrade your insulation. There’s a better way to answer this question. Just tell people how much energy they used that month compared with other people in similar-size homes. In many cities (including our own New Haven), the square footage of each house is publicly available — so the gas company could calculate the energy per square foot for each house and display the information on each month’s bill. Further helping you out by doing the math, it could report energy consumed (in BTU) per square foot per degree day. We’ll call this measure B-Tush (BTU per square foot per heating degree day). The key here is to report how folks did relative to their neighbors. According to a 1997 Department of Energy survey, the U.S. average B-Tush is 10. If you are up to 25, then you are among the worst 10 percent. You should invest in better insulation — or else turn down the thermostat and buy some sweaters. Economists tend to think of information and incentives as the core drivers of human behavior. But Cialdini and Positive Energy have me thinking that smiley faces may also play a useful role. P.S. stickK.com hasn’t quite gone so far as to include emoticons in its messaging to help people stick to their commitments, but we are enhancing the behavioral support features. We’ve just launched several new communities (concerning things like “health and lifestyle,” “green initiatives,” and “money and finance”) to help people better connect with others who have similar goals. Cyber Civil Rights
Frank Pasquale
I just wanted to put up a note of congratulations to Danielle Citron, whose work Cyber Civil Rights was just published by the B.U. Law Review. I've seen Citron present the piece at a conference, and I think it really breaks new ground in applying venerable laws to the online environment. As recent controversies have shown, it's easy for online mobs to inflict real injuries on their victims--and women bear a disproportionate share of the abuse. Citron argues that "acting against these attacks . . . helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality." Collateral Damage: Reforming the National Fugitive Operations Program
Guest Blogger
Margot Mendelson Wednesday, February 25, 2009
Why it's fallacious to compare the stimulus bill to, say, reforming the medical care system
Sandy Levinson
It is obviously tempting to assert that the quick passage of the stimulus bill (after paying tribute to the unholy threesome of Collins, Snowe, and Specter) adequately disproves my reiterated argument that we have a system that makes it difficult, if not impossible, to confront adequately the challenges that face us, such as getting a handle on our inefficient and unjust system of delivering medical care to those who need it. My view is that it is a big mistake to take much comfort in the quick passage of the stimulus bill (putting to one side whether one approves of everything that was in it, a discussion I have no desire to get into). In many ways, it was an "easy" bill to pass, for at least a number of reasons: a) (almost) everyone recognizes that there is a crisis and that something needs to be done, and fast; b) although the bill no doubt has a lot of consequences, both for good and for ill, in creating incentives for a variety of behaviors, it does not in itself constitute a serious attempt to significantly reform of any important aspect of the American political or economic system; and c) as critics of the bill point out endlessly, it's quite easy to get legislators to vote for programs that shovel money to their constituents and place the burden of paying for the programs on future generations. A Voucher System for Investigative Reporting
Ian Ayres
Crosspost from Freakonomics: Dozens of proposals are floating around suggesting different ways to fix what seems to be the broken business model for newspapers. Michael Kinsley’s Op-Ed, working backwards from the gross numbers, provides a devastating critique of the claim that micropayments on the Internet could save the industry: Micropayment advocates imagine extracting as much as $2 a month from readers. The Times sells just over a million daily papers. If every one of those million buyers went online and paid $2 a month, that would be $24 million a year. Even with the economic crisis, paper and digital advertising in The Times brought in about $1 billion last year. Circulation brought in $668 million. Two bucks per reader per month is not going to save newspapers. But the same result is strongly suggested by theory. There’s no guarantee that private demand will produce the socially optimal quantity of investigative political reporting. Muckraking is a public good, and rational consumers would rather benefit from having the other guy pay for it. The same impulse that underlies the “rational ignorance” of voters may undercut the private market’s provision of political information. Investigative reporting in the old days seemed like it was a loss-leader in the information bundle to which we subscribed. As a kid, I read the newspaper for the funnies, movie times, the sports scores, and for the classified ads. I still value this info, but I never get it from the printed page. Even a few years ago, I can remember feeding money into New Haven Register newspaper dispensers to learn the local movie times. But with an Internet-enabled cell phone, I almost never buy the Register anymore. The bottom line is that we may need to publicly subsidize investigative reporting if we’re going to get enough of it. But the problem with subsidies lies in this question: who is going to decide what kinds of issues get investigated? It’s scary to think of having politicians decide the targets of journalism. Bruce Ackerman and I have a solution (just published in the Guardian): We urge democracies throughout the world to consider the creation of national endowments for journalism that are carefully designed to confront the impending collapse of investigative reporting. The real concern is not the newspaper, but news coverage. It’s not clear that print news is a viable technology. Classified ads are more efficiently delivered by websites. Nobody under 50 waits to read all about stock prices or scores in the morning edition. The government should sit back and let the market decide the right way to distribute the news. But there are huge costs to losing a vibrant core of investigative reporters covering local, national, and international stories. The Internet is well suited to detect scandals that require lots of bloggers to spend a little bit of time searching for bits of incriminating evidence. But it’s no substitute for serious investigative reporting that requires weeks of intelligent inquiry to get to the heart of the problem. Without Woodwards and Bernsteins, there will be even more Nixons and Madoffs raining mayhem and destruction. It will take decades to revitalise investigative journalism if we allow the present corps of reporters to disintegrate. This is happening at an alarming rate. … The problem with a BBC-style solution is clear enough. It is one thing for government to serve as one source of investigation, but quite another for it to dominate the field. A near-monopoly would mean the death of critical inquiry. There are serious problems with private endowments as well. For starters, there is the matter of scale. Pro Publica, an innovative private foundation for investigative reporting, is currently funding 28 journalists. It is hard to make the case for a massive increase in private funding when university endowments are crashing throughout the world, imperiling basic research. More fundamentally, a system of private endowments creates perverse incentives. Insulated from the profit motive, the endowments will pursue their own agendas without paying much attention to the issues that the public really cares about. Here is where our system of national endowments enters the argument. In contrast to current proposals, we do not rely on public or private do-gooders to dole out money to their favorite journalists. Each national endowment would subsidize investigations on a strict mathematical formula based on the number of citizens who actually read their reports on news sites. Some might find this prospect daunting. Readers may flock to sensationalist tabloids that will also qualify for grants for their “investigations”. But common sense, as well as fundamental liberal values, counsels against any governmental effort to regulate the quality of news. So long as the endowment only subsidizes investigative expenditures, in-depth reporting will get a large share of the fund — provided that it generates important stories that generate broad interest. The government provides the subsidy, but “the people” decide how it will be distributed. You vote with your eyes and ears. Bruce and I, in Voting With Dollars, suggest an analogous system called “Patriot Dollars” that would allow individual voters to decide how campaign-finance subsidies would be distributed. But here the voucher scheme is implemented by a less obtrusive choice architecture. The ordinary act of reading or listening to a piece of journalism tells government that this is the organization that should be subsidized. Instead of influencing the content of what will be reported on, government can empower readers by subsidizing the news organizations that have succeeded in the past. Silverstein, LAW'S ALLURE
Mark Graber
Law’s Allure: How Law Shapes, Contrains, Saves and Kills Politics provides an original and compelling analysis of the complex relationships between law and politics. Professor Silverstein’s insights that juridification in the United States is on the rise, that juridification is more than government by judiciary, and that this escape from politics has numerous hidden costs are interesting and important. The case studies are well written and informative, the research is solid, and the conclusions likely to provoke a good deal of conversation both within and without political science. Readers of such classics as Rosenberg, The Hollow Hope and McCann, Rights at Work, will want to add Law’s Allure to their bookshelves and syllabi. Lawyers in both government and public interest litigation should take the work’s proscriptions seriously. Tuesday, February 24, 2009
It may be morning in America, but we still have the same defective Constitution
Sandy Levinson
I'm still elated by the results of the election and the fact that, at long last (and several weeks late) Barack Obama was finally inaugurated. But no one should doubt that among the problems we face in this country is a political system that is structured to create, if not out-and-out gridlock--some legislation does in fact get passed, after all--then a structured incapacity to confront serious problems head-on, especially if any proposed solutions involve serious sacrifice by one's own constituents. When Tip O'Neil so memorably said that "all politics is local," he was offering a profound statement about the polity generated by the Constitution, in which ever single member of Congress is indeed a parochial local representative when push comes to shove. "People want the basic stuff fixed," said state Rep. Vernon Sykes, a Democrat who chairs the Finance and Appropriations Committee in the Ohio House. "They don't have a romantic notion of bipartisanship. They just want people to come together to solve problems." Monday, February 23, 2009
Redux: Does Broadband Belong in the Economic Stimulus Package?
Neil Netanel
The economic stimulus bill provides for $7.2 billion in grants, loans, and loan guarantees for construction of rural broadband internet. In a February 11th post, I questioned whether that sizable government expenditure truly serves the job-creation goals of the stimulus package, as opposed to those of telecommunications law and policy generally. Articles in the Washington Post (Skepticism Arises Over Rural Broadband Stimulus) and New York Times (Rural Broadband: No Job Creation Machine) over the last couple days have posed the same question. Both articles refer to a study co-authored by Raul Katz, Director of Business Strategy Research at Columbia Business School's Institute for Tele-Information. Watching the Watchmen
Stephen Griffin
Quis custodiet ipsos custodes? This question posed by the Latin satirist Juvenal is familiar to anyone who has read a basket of books on judicial review. I’ve seen it translated as “Who will guard those selfsame guardians” in the context of asking: if the Supreme Court is the guardian of the Constitution, who will ensure the Court follows that supreme law? In the next few weeks, you are more likely to see it translated as “Who will watch the Watchmen?” as we move toward the opening of the film based on Watchmen, a famous graphical novel. Fragments of this question appear throughout the story as the “superhero” vigilante characters (all but one lack superhuman abilities) grapple with various moral dilemmas. Watching for Stimulus Abuses
Guest Blogger
Martha Minow The fall of Qi Yuling
Lauren Hilgers
Quietly, in a batch of other laws and rulings being thrown out at the end of 2008, China recently abolished the Qi Yuling ruling, nullifying what has long been considered by many the seminal constitutional law ruling in PRC history. The case was the first to indicate that China’s constitution could be applied in civil litigation. Many hoped it would set the scene for the integration of constitutional law into China’s existing judicial system. Friday, February 20, 2009
Money in Crisis: Revisiting the Legal Tender Cases
Frank Pasquale
Despairing at the stimulus package, some voices on the right have launched a first principles attack on the borrowing it entails. In the Wall Street Journal, Judy Shelton says "let's go back to the gold standard," claiming that "Fiat money -- i.e., currency with no intrinsic worth that government has decreed legal tender -- loses its value when government creates more than can be absorbed by the productive real economy." Thomas E. Woods at the contrarian The American Conservative notes the intellectual roots of today's gold bugs: Thursday, February 19, 2009
An Offer Republican Governors Can Refuse
JB
News reports suggest that Governors Bobby Jindal of Louisiana and Rick Perry of Texas are contemplating turning down billions of dollars to their states in the new stimulus package because they don't like the conditions attached. A few other Republican governors have raised similar objections to accepting money from the stimulus. Wednesday, February 18, 2009
The Bush Presidency and Theories of Constitutional Change (Part II)
Stephen Griffin
In my earlier post on this subject, I posited that the Bush presidency poses a challenge for theories of constitutional change. How should that change be met? After the jump, I provide a sample of the analysis in my article of the title above, just posted on SSRN. The analysis does differ from the kind scholars have absorbed from the theories put forward by Bruce Ackerman and Keith Whittington. It does not focus on constitutional moments or constructions.
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Books by Balkinization Bloggers
Gerard N. Magliocca, The Actual Art of Governing: Justice Robert H. Jackson's Concurring Opinion in the Steel Seizure Case (Oxford University Press, 2025)
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 |