Balkinization
an unanticipated consequence of
Jack M. Balkin
E-mail:
Jack Balkin:
jackbalkin at yahoo.com
Bruce Ackerman
bruce.ackerman at yale.edu
Ian Ayres
ian.ayres at yale.edu
Mary Dudziak
mdudziak at law.usc.edu
Joey Fishkin
joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber
mgraber at law.umaryland.edu
Stephen Griffin
sgriffin at tulane.edu
Bernard Harcourt
harcourt at uchicago.edu
Scott Horton
shorto at law.columbia.edu
Andrew Koppelman
akoppelman at law.northwestern.edu
Marty Lederman
marty.lederman at comcast.net
Sanford Levinson
slevinson at law.utexas.edu
David Luban
david.luban at gmail.com
Gerard Magliocca
gmaglioc at iupui.edu
Jason Mazzone
jason.mazzone at brooklaw.edu
Linda McClain
lmcclain at bu.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 princeton.edu
Rick Pildes
rick.pildes at nyu.edu
Alice Ristroph
alice.ristroph at shu.edu
Brian Tamanaha
btamanaha at wulaw.wustl.edu
Mark Tushnet
mtushnet at law.harvard.edu
Adam Winkler
winkler at ucla.edu
The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC
The Anti-Torture Memos (arranged by topic)
Recent Posts
What Does Snyder v. Phelps Mean for Privacy Law?
Egypt’s “Leaderless Revolution” and Presidentialism: A Toxic Combination
DOMA: The Politics of Scrutiny
Paradoxical Notions of Liberty
DrawCongress.org
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What Does Snyder v. Phelps Mean for Privacy Law?
JB
The result in Snyder v. Phelps was not unexpected. But the Court's decision, written by Chief Justice Roberts, has important implications for informational privacy law that many people, focusing on the antics of the Westboro Baptist Church, may have missed.
Read more »
Posted
8:11 AM
by JB [link]
Egypt’s “Leaderless Revolution” and Presidentialism: A Toxic Combination
Bruce Ackerman
American- or French-style presidentialism flows organically from a revolutionary context in which the leader of a national liberal movement – Washington or Bolivar, De Gaulle or Walesa – has emerged during a lengthy period of struggle against an authoritarian regime. By the time the movement has gained power, the leader’s selection as president seems the obvious choice to symbolize the achievement of the People over its oppressors. The key question is whether the leader is willing to "constitutionalize his charisma," and use his reservoir of popular support to stabilize the constitutional regime. If not, a charismatic dictatorship is the likely outcome.
But this dynamic is beside the point when it comes to a “leaderless” revolution of the Egyptian type, where the authoritarian regime successfully represses the opposition, and then suddenly collapses without providing the movement with time for its own leadership to emerge. Under this scenario, a parliamentary system provides a far more promising constitutional transition to democracy than its presidential counterpart. The presidential form requires the revolutionaries to anoint a single leader prematurely -- thereby preempting a desirable period of democratic contestation, in which rival leaders compete for power. In contrast, a parliamentary system allows a number of political parties to project a number of different leaders onto the stage under conditions of relative equality, allowing them to present a set of competing options in a series of coalition governments.
The case for parliamentarianism is especially compelling in Egypt, since the Mubarak regime was selectively repressive – crushing secular dissent but allowing the Moslem Brotherhood to survive as the only organized opposition group. I develop my argument further in an essay I've just published in Foreign Policy magazine.
Posted
10:31 AM
by Bruce Ackerman [link]
DOMA: The Politics of Scrutiny
Jason Mazzone
As I have discussed in previous posts (here and here), the Obama administration takes the position (and will argue in the Second Circuit) that classifications based on sexual orientation should be subject to heightened or intermediate scrutiny, under which the government must establish that the classification is substantially related to an important government objective. The administration does not, then, take the position that strict scrutiny should apply, under which the government would have to establish that the classification is narrowly tailored to a compelling government interest. Why does the administration endorse intermediate but not strict scrutiny?
Read more »
Posted
2:35 PM
by Jason Mazzone [link]
Paradoxical Notions of Liberty
Bernard E. Harcourt
As you know, I’ve been tracking the budget debates regarding incarceration recently and I’ve just started a thread over at Goodreads to discuss this puzzling relationship between punishment and economic logics. The major question on the table is how come laissez faire has gone hand-in-hand with mass incarceration? How can these paradoxical notions of liberty co-exist? Another way to ask this is: What makes the prison budget seemingly impervious to deficit constraints? Although most of the cost of mass incarceration today is borne by states, the case of the federal budget is a perfect illustration. Think about it. We have a Democratic presidential administration that explicitly calls for reducing mass incarceration and has plans to release well-behaved convicts. We have continuing drops in violent crime at the national level. We are about to slash education programs because of our exponential federal deficit. And yet the Obama administration just proposed an 11 percent increase in spending on the federal prison system. What makes that particular budget line impervious?
Posted
12:54 PM
by Bernard E. Harcourt [link]
(20) comments
DrawCongress.org
Nate Persily
The website DrawCongress.org is now live. On this website you will see congressional redistricting plans drawn by students in my Redistricting and Gerrymandering Course at Columbia. DrawCongress.org represents the first attempt to create an internet depository for nonpartisan congressional maps for the entire country.
This website and associated project have three goals. First, the project seeks to educate both the students involved and the general public about the redistricting process. We hope that the maps and redistricting plans contained there depict what is possible in the current round of redistricting and what nonpartisan plans might look like. Second, we hope that these plans serve as a benchmark against which incumbent-drawn plans can be assessed. While not passing judgment on the plans states adopt this redistricting cycle, we hope that the plans contained there illustrate alternative paths not taken and, therefore, both the promise and potential pitfalls of nonpartisan redistricting. Finally, for those states that fail to craft redistricting plans, this website provides ready-made legally defensible congressional plans.
Thus far, we have plans up for Virginia, New Jersey, Louisiana, Mississippi, Maryland, Oklahoma, Iowa, and Arkansas. Each posted plan includes a statewide map, individual district maps, plan statistics and reports, and a block equivalency file that can be downloaded and placed into any mapping program.
In the coming months students at Harvard and Yale will also be placing maps up on the site, and we invite others to do so as well. Anyone interested in doing so should contact me at npersi@law.columbia.edu.
Posted
8:34 AM
by Nate Persily [link]
Books by Balkinization Bloggers
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)
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