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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 Rice: Bush Ordered It, And Therefore It Isn't Torture Akhil Amar Got There First An Initial Take on the Voting Rights Act Argument -- Trouble for the VRA? Does Obama Change Everything? Why a Criminal Investigation does not mean the OLC Lawyers are Scapegoats on Torture Yes, Part II What Teles Can Tell Us About Constitutional Change A Financial Engine Shut-off Switch The Unvarnished Truth about Torture Will California lead the way? And will Tom Brokaw connect more dots? Why Information about the Combination of Techniques is Essential--Death Can Result! Real Commitment at the OMB Bernard Harcourt on the bureaucratization of torture Reasons to Infer that the OLC Torture Memos were Not Issued in "Good Faith" strip searches and torture Cheney Supports Truth Commission Merit and Intent: Two Pitfalls of Equal Protection Doctrine The CIA and Torture Supreme Court's Plenary Docket--Part One Is Obama really serious about "upholding our values"? Teenage Virgins II The Empty Circularity of the Lastest Batch of OLC Torture Memos
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Thursday, April 30, 2009
Rice: Bush Ordered It, And Therefore It Isn't Torture
JB
Wednesday, April 29, 2009
Akhil Amar Got There First
Ian Ayres
Crosspost from Freakonomics: Once again, Catherine Rampell has an interesting Economix post (“Minority Rules: Sex Ratios and Suffrage”) describing a new empirical analysis arguing that “jurisdictions that granted women the right to vote earlier generally had lower concentrations of women.” Why? These seem to me to be powerful arguments — but I learned them first in 2005 when I was reading Akhil Amar’s monumental biography of … our Constitution. Akhil wrote: Much as the Founding Fathers had structured a Constitution whose promises of freedom and democracy sought to pull skilled European immigrants across the ocean, so their pioneer grandsons in the West evidently aimed to draw American women through the plains and over the mountains. Data from the 1890 census provide some support for this admittedly crude theory. For every hundred native-born Wyoming males, there were only 58 native-born females. No other state had so pronounced a gender imbalance. Colorado and Idaho were the fifth and sixth most imbalanced states overall in 1890. The other early woman-suffrage state, Utah, had a somewhat higher percentage of women (thanks to its early experience with polygamy), but even Utah had only 88 native-born females for every hundred native-born males, ranking it 11th among the 45 states in the mid-1890’s. Also, the second, third, fourth, and seventh most imbalanced states — Montana, Washington, Nevada, and Oregon — would all embrace woman suffrage in the early 1910’s, several years ahead of most sister states. In all these places, men voting to extend the suffrage to women had little reason to fear that males might anytime soon be outvoted en masse by females (Amar, America’s Constitution, pp. 419-25). You can read his entire narrative on the evolution of women’s suffrage here. Interestingly, Amar — who is not an empirical economist — was able to see a couple of additional legal/political wrinkles that others might miss: Above and beyond any individualistic desire to woo women that may have motivated the men of Wyoming and other Western regions, federal territorial policy provided a modest if unintended spur to woman suffrage. In general, Congress in the 19th century waited for each territory to achieve a certain critical population mass before admitting that territory to statehood. Although Congress followed no single formula applicable to all places and all times, each western territory understood that rapid population growth would enhance its prospects for early statehood. Each new woman in the West would not only bring to a territory her own person but might also help produce future growth through childbearing. And if Congress ever decided to focus not on a given territory’s total number of inhabitants but rather on the size of its voting base, then woman suffrage would almost double the key number. … Another aspect of the endgame: If and when women did get the vote, woe unto the diehard anti-suffrage politician who had held out until the bitter end! Each state legislator or Congressman from a non-suffrage state had to heed not just the men who had elected him, but also the men and women who could refuse to reelect him once the franchise was extended. (After ratification of the Direct Senate Election Amendment, every U.S. senator had to focus on the statewide voters rather than a tiny clump of political chums in the state capital.) The experience in Ohio, where male voters had refused to enfranchise women in 1912 and again in 1914, nicely illustrated the underlying electoral math. Senator Warren Harding voted for the Woman Suffrage Amendment and went on to capture the White House in 1920. Conversely, Senator Atlee Pomerene opposed the amendment and was voted out of office in 1922. But the bigger picture is one of consilience: Two very different methodologies came to similar conclusions on a central question of how men democratically agreed to dilute their franchise. An Initial Take on the Voting Rights Act Argument -- Trouble for the VRA?
Heather K. Gerken
Having just listened to the rebroadcast of the Supreme Court argument on the constitutionality of Section 5 of the Voting Rights Act (VRA), I think that supporters of the VRA have few reasons to be cheerful. It is always dangerous to make prognostications based on the argument. But if one were reading tea leaves, two things should worry VRA supporters. First, Justice Kennedy asked about whether there are any real differences between the covered and non-covered jurisdictions four times, and it's not clear to me that he ever received an answer that satisfied him from the attorneys (that's not to cast aspersions on the attorneys defending the Act -- I thought they were excellent). As anyone familiar with Kennedy's federalism jurisprudence will tell you, his reference to the "sovereign dignity" of the covered jurisdictions should make VRA supporters nervous. Second, Justices Souter and Ginsburg worked very hard at the beginning of Greg Coleman's argument to suggest that the case could be dismissed on narrow grounds -- a statutory construction argument or standing. If one thinks that those Justices would be natural proponents of upholding Section 5, this, too, should make one a bit nervous. That being said, Justice Kennedy did soften his stance at the very end of the argument, while still returning to the question whether Congress had enough evidence about the differences between non-covered v. covered jurisdictions to justify maintaining the existing coverage formula. Supporters of the VRA better hope that someone comes up with an answer that he'll accept on that issue before the end of June. Tuesday, April 28, 2009
Does Obama Change Everything?
Heather K. Gerken
Tomorrow the Supreme Court will hear argument on NAMUDNO, a challenge to the constitutionality of Section 5 of the Voting Rights Act. What has been frustrating about the commentary leading up to the argument is that it often misses the key question here. This fight largely turns on a concrete legal question, not on atmospheric debates about whether Barack Obama's election changed everything. I realize that it may be unfashionable to suggest that a Supreme Court case might actually turn on a question of law, but there it is. Why a Criminal Investigation does not mean the OLC Lawyers are Scapegoats on Torture
Brian Tamanaha
Yes, Part II
Ian Ayres
Crosspost from Freakonomics: In a recent post, I extolled the virtues of Robert Cialdini’s Yes!: 50 Scientifically Proven Ways to Be Persuasive. The book is wonderfully designed in 50 short chapters to describe the results of 50 different randomized field experiments. The format of, say, 1,800 words per chapter is a bit unusual. But I found it a great way to catch up on some really interesting research. In my previous post, I told you about the Petrified Forest study. But I can’t help but pass on a couple more of my favorite studies. Chapter 35 describes Ellen Langer’s great field experiment focusing on the impact of an inane excuse: Yes! also indulges the Freakonomics fascination with the impact of baby names. Chapter 30 argues that your name might impact your vocation. Chapter 30 quotes a scene from the NBC comedy The Office, in which Dwight Schrute is caught in a lie about going to the dentist. Dwight’s boss, Michael Scott, asks Dwight for his dentist’s name and “after a long, awkward pause, Dwight replies, ‘Crentist.’” Michael: Your dentist’s name is Crentist? Dwight: Yeah. Michael: Huh … sounds a lot like dentist. Dwight: Maybe that’s why he became a dentist. Crentist sounds silly, but researchers have found that people named Dennis are more likely to become dentists. An article, “Why Susie Sells Seashells by the Seashore,” finds that in the U.S. population the names Jerry, Dennis, and Walter rank 39th, 40th, and 41st among male first names. But in the national directory of the American Dental Association there are close to twice as many Dennises (482) as Walters (252) and Jerrys (270). “Similarly, people whose names begin with ‘Geo’ (e.g., George, Geoffrey) are disproportionately likely to do research in the geosciences (e.g., geology).” To be honest, I’m not fully persuaded that either of these results is true. Perhaps I was particularly on guard because the book is explicitly about persuasion. But at least 20 of the “50 Scientifically Proven Ways to Be Persuasive” got me thinking about possible follow-ups. If you’re looking for an easy entry point into the empirical psychology literature on persuasion, this book might be the ticket. Monday, April 27, 2009
What Teles Can Tell Us About Constitutional Change
JB
Because constitutional change is a focus of my research these days, I thought I might say a few words about how Steve Teles' book The Rise of the Conservative Legal Movement is important to contemporary theories of constitutional change. Teles' book discusses how competition between different ideological groups occurs outside of the electoral process: through institution building, norm development and norm proliferation. These mechanisms are quite important to understanding constitutional change, and legal change more generally. A Financial Engine Shut-off Switch
Ian Ayres
Crosspost from Freakonomics: AOL Autos has a great article on new technologies that shut off your engine if you fail to make payments on your car loan. The devices, which are required by a growing number of subprime loan contracts, are the product of a revolution in telematics — the blending of telecommunications and wireless technology. The devices are usually controlled remotely by the dealer or lender and are linked to the vehicle’s powertrain. They usually cut out the power several days after the payment is due. Before the deadline, the driver is treated to a concert of tones and flashing indicators signaling that the deadline is approaching. There are also warnings after the deadline has passed. Sounds like a good idea to me. But then again Barry Nalebuff and I got into trouble a few years back defending Acme Rent-A-Car (its real name) for automatically penalizing renters $150 if (GPS showed) they drove the cars faster than 80 m.p.h. Both technologies are examples of commitment devices, which help drivers commit to particular behaviors. Both should only be used with abundant ex ante disclosure so that the drivers know what they’re signing up for. One concern with the financial cut-off switches is that they might leave a driver high and dry when she really needs the car — say, to drive to the hospital in an emergency. But the AOL article says: Posted 9:33 AM by Ian Ayres [link] Sunday, April 26, 2009
The Unvarnished Truth about Torture
Brian Tamanaha
Listen to this eloquent rebuttal to Dick Cheney's argument that torture paid off. The fellow sitting in the middle delivers the key point about 20 seconds into the video (the comments from the judge are also pointed, if more polite). WARNING: Not for sensitive ears. Thursday, April 23, 2009
Will California lead the way? And will Tom Brokaw connect more dots?
Sandy Levinson
The New York Times has just posted a story suggesting that serious people are beginning to call for a new constitutional convention to revise a disastrously dysfunctional California constitution. Good for them!! Is it too much to hope that perhaps this development, should it come to pass, might generate at least a scintilla of conversation about our own decidedly imperfect Constitution? Why Information about the Combination of Techniques is Essential--Death Can Result!
Brian Tamanaha
In response to my previous post, defenders of the OLC torture memos repeat the assertion that when rendering their legal opinion the lawyers had information about the consequences of the interrogation practices. This information consisted of reports on SERE training exercises (training our soldiers to endure and resist torture) and various sleep deprivation studies. Real Commitment at the OMB
Ian Ayres
Crosspost from Freakonomics: Catherine Rampell had a nice post last week over at Economix (“Do It Or Pay”) telling of NPR’s recent interview with Peter Orszag, the director of the White House’s Office of Management and Budget, in which Orszag talks about writing an exercise contract exactly like what my beloved stickK.com offers: “If I didn’t achieve what I wanted to, a very large contribution would automatically come out of my credit card and go to a charity that I very much didn’t support,” Orszag says of his training strategy. “So that was a very strong motivation, as I was running through mile 15 or 16 or whatever it was, to remind myself that I really didn’t want to give the satisfaction to that charity for the contribution.” My most frequent coauthor (and Honest Tea cofounder) Barry Nalebuff can brag that Obama likes to drink a variety of H.T. flavors. But I’m hoping that Orszag’s marathon training might be the harbinger of a wider spread use of commitment devices in the current administration. Wednesday, April 22, 2009
Bernard Harcourt on the bureaucratization of torture
Sandy Levinson
Bernard Harcourt has an excellent posting on the University of Chicago Law School blog site relating the newly disclosed memos to arguments made by Eric Posner and Adrian Vermeule in behalf of more-or-less bureaucratizing the infliction of torture. Harcourt argues, I think quite convincingly, that the memos demonstrate the advisability of sticking with ex post necessity defenses for those extremely rare instances when we might want to exculpate a torturer, as agianst trying to construct an ex ante process. In any case, anyone interested in the debate should read the post. Reasons to Infer that the OLC Torture Memos were Not Issued in "Good Faith"
Brian Tamanaha
When determining whether a potential criminal suspect has violated the law, would you rely entirely upon the assurances of that person that he did not commit the crime? Tuesday, April 21, 2009
strip searches and torture
Sandy Levinson
The Supreme Court will here today the arguments in Safford Unified School District v. Redding, involving the coerced strip search of then-13-year-old Savana Redding because of a wholly non-probable-cause-based belief that she might have possessd a banned prescription drug. Needless to say, she did not. As I was listening this morning to Nina Totenberg's overview of the case, it struck me that there is an obvious connection between this case and the interrogation policies of the US involving forced nudity (and worse). The School Board is basically making a "precautionary principle" argument that the threat posed by even a single drug at the school justifies doing "whatever it takes" to ferret out potential carriers. To oppose what some hotheads might describe as the fascistic school board is to label oneself "soft on drugs." I wonder if any of the judges, albeit subconsciously, might realize that to uphold the School Board's egregious misconduct is precisely to play into the hands of Dick Cheney and his own version of the precautionary principle. Cheney Supports Truth Commission
JB
In an interview with Sean Hannity, Former Vice-President Dick Cheney argued for declassification of memos that will show that torture techniques produced valuable intelligence. Merit and Intent: Two Pitfalls of Equal Protection Doctrine
Guest Blogger
Deborah Hellman Monday, April 20, 2009
The CIA and Torture
Stephen Griffin
The point that is getting lost in the controversy over whether to prosecute those who tortured is why the CIA was involved in the first place. The CIA could volunteer for this task because from the beginning of the national security state it was never subjected to the kind of rule of law restraints that bind the rest of the government, especially with regard to covert action. The puzzle is why the current controversy is not leading to the kind of calls heard after the intelligence investigations of the 1970s and the Iran-contra affair of 1986 to write a charter or framework statute to govern the CIA's activities. You can turn to Dean Harold Koh's still-relevant 1990 work, The National Security Constitution, for an argument of this kind. After all, as citizens, we have a better chance to influence a policy debate as compared to a debate over whether to prosecute. But no one seems interested in starting a debate over whether the CIA should have been able to raise its institutional hand and say the equivalent of: "sure, we'll give it a try." Supreme Court's Plenary Docket--Part One
David Stras
With the Supreme Court beginning its last sitting of the Term today, now is a good time to reflect on the Court’s plenary docket for the October 2008 Term. According to my records, we can expect the Supreme Court to issue 76 opinions of the Court this Term following full plenary consideration (oral argument and full briefing). That figure does not count the two per curiam summary reversals that were issued earlier this Term without the benefit of oral argument (Spears v. United States and Nelson v. United States), Al-Marri v. Spagone (which was dismissed upon motion of the United States), and the cases that have been dismissed as improvidently granted (Phillip Morris v. Williams and Bell v. Kelly). I also assume that the Court will not issue separate opinions in cases that have been consolidated. Using the methodology employed by the Harvard Law Review in its annual Supreme Court issue, we can expect a total of 78 opinions for the Court for this Term including the two summary reversals previously mentioned. Is Obama really serious about "upholding our values"?
Sandy Levinson
The New York Times reports that President Obama (still one of the sweetest phrases imaginable) told the CIA today Teenage Virgins II
Ian Ayres
Crosspost from Freakonomics: In my last post, I argued that (the truly excellent show) Friday Night Lights might unwittingly be exacerbating the mistaken idea that the vast majority of high-schoolers have sex. I worried that this discrepancy between what adolescents believe (virgins are rare) and the truth (high-school virgins are the norm) is a dangerous combination. Here’s why I’m concerned (and what it means for public service messages with regard not only to abstinence but a host of other issues). Robert Cialdini has shown time and again that people like to conform their behavior to that of others. His new book, Yes! 50 Scientifically Proven Ways to Be Persuasive, is chock full of examples. Want to get hotel guests to forego daily towel cleaning? Include a message telling them that most other guests reuse their towels. Want them to recycle even more? Tell them that most people using their very room recycle. One of my favorite examples of the powerful urge to conform with the majority comes from an experiment he ran at Arizona’s Petrified Forest National Park. Conformity theory suggests the park service was sending exactly the wrong message when it posted signs saying: Your heritage is being vandalized every day by theft losses of petrified wood of 14 tons a year, mostly a small piece at a time. Here’s how his paper describes the experiment: We gained permission from Petrified Forest National Park officials to place secretly marked pieces of petrified wood along visitor pathways. Over five consecutive weekends, Cialdini and coauthors varied the signs seen at the entrance to each path. Some weekends, visitors saw a sign that, like the original park-service sign, emphasized the wrong norm: This wording was accompanied by pictures of three visitors taking wood. Other weekends, visitors saw: Please don’t remove the petrified wood from the park, in order to preserve the natural state of the Petrified Forest. This wording was accompanied by a picture of a lone visitor stealing a piece of wood, with a red circle-and-bar symbol superimposed over his hand. Sure enough the “many past visitors” framing lead to more than four times the amount of pilfering of petrified wood (7.92 percent vs. 1.67 percent). But what’s truly amazing is that putting up no sign at all did a better job than putting up a sign suggesting that “everybody does it”: In a finding that should petrify the National Park’s management, compared with a no-sign control condition in which 2.92 percent of the pieces were stolen, the social-proof message resulted in more theft (7.92 percent). In essence, it almost tripled theft. Thus, theirs was not a crime prevention strategy; it was a crime promotion strategy. (Yes!, p. 22) I’m not calling for the writers of Friday Night Lights to change the story arc. But Cialdini’s simple idea is that public service messages would do well to implicitly tell high-schoolers: “Be like most of your peers — don’t have sex while you’re in high school.” Indeed, Cialdini has me thinking that all those “Above the Influence” commercials are seriously off base: These commercials implicitly suggest that most of your peers are going to be using drugs and that you have to gird yourself to be above their influence. They are too close to the signs in the Petrified Forest. Instead of saying “Don’t do what most kids your age do,” they might say “Do what most kids your age do: just say no.” We might want to start by finding out what high-schoolers think and correct misperceptions. These spots might be a lot more effective if they change their message to implicitly say: Most high-schoolers don’t use meth. Most high-schoolers don’t binge drink. In fact, most high-schoolers don’t use drugs at all. Sunday, April 19, 2009
The Empty Circularity of the Lastest Batch of OLC Torture Memos
Brian Tamanaha
Defenders of the OLC torture memos have maintained for months that it is unfair to criticize Bush Administration lawyers for their “good faith” legal analysis, issued under pressure and the threat of additional terrorist attacks. Legal analysis often contains a margin of uncertainty, these defenders remind us, so the fact that the legal reasoning in the memos has been widely condemned as unsound does not show that the memos were written in bad faith. A criminal investigation of these patriotic OLC lawyers—Yoo, Bybee, Bradbury, Delahunty—for aiding the violation of U.S. laws against torture, we are told, would be a travesty of justice.
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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 |