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Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts "Constitutional Dictatorship" and the Iron Cage of the U.S. Constitution
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Monday, January 06, 2020
"Constitutional Dictatorship" and the Iron Cage of the U.S. Constitution
Sandy Levinson
I have repeatedly stated that the single most important book published in the last 70 years on the American political system is Clinton Rossiter's 1948 Constitutional Dictatorship. He argued, among other things, that not only is "constitutional dictatorship" a recognizable part of many legal systems, from ancient Rome to modern Germany, France, the UK, and the US., but also that the US has a particularly deficient form, in part derived from the fact that the President is significantly unrestrained in declaring the existence of "emergencies" that license expansions of executive power. As Carl Schmitt, one of the most insightful, albeit dreadful, constitutional analysts notably put it, "sovereign is he who can declare the state of exception." We see this in spades with the assassination, on Donald Trump's orders, of Suliemani. Going back to Biblical texts, the ultimate manifestation of sovereignty is the ability to kill for reasons known only to the killer, the most important of whom is designated as God. See, e.g., the Abraham-Isaac story, the book of Job, or, indeed, the central tenet of Christianity in the blood sacrifice of an innocent Jesus. Suliemani was, of course, no innocent, but why exactly, should that be treated as dispositive?
Comments:
Sandy:
I will presume you are not arguing in bad faith like the Democrat media and simply require an historical clue or three. Iran has waged war against the United States since 1979 and its proxy militias have killed several hundred Americans in Iraq, Afghanistan and other nations. For a majority of this generational war, General Suleimani commanded those militias and is an enemy combatant in Iran's war against the United States. Most recently, Suleimani's Iraqi proxies rocketed one of our bases, killing one and wounding several; then attacked our embassy. Article II of the Constitution grants the POTUS broad commander in chief (CiC) powers, limited only by a handful of Article I powers granted to Congress. One of those Article I powers requires POTUS to seek a congressional declaration before he may start a war. However, when an enemy wages war on the United States, the POTUS may exercise his CiC powers to use military force in defense of the United States and its people, without obtaining a congressional declaration before doing so. When he killed the enemy combatant Suleimani, Trump was acting well within his CiC powers to defend our soldiers in the field. This was no "emergency" act in excess of his Article II powers. Your suggestion that Democrat POTUSes of "fine character" may exercise their normal Article II powers to kill far less predatory terrorists, while GOP POTUSes of presumably coarse character may not kill the state terrorist leader Suleimani is self-serving partisan nonsense, as are much of your following paragraphs of baseless rant. In fact, when it came to Iran, Barrack Obama was a POTUS of extraordinarily low character bordering on treason. Not only did Obama join Bush 43 in failing to defend our troops in Iraq and Afghanistan from Iranian sponsored attacks, our 44th POTUS lifted sanctions against this wartime enemy and provided them with literal mountains of cash to further fund their war against the US and their neighbors.
You're a lot more interesting when you're doing legal scholarship, than political punditry.
Look, Sandy, you're misplacing the blame here. No constitution is going to give you what you want in a country where the voting public don't share your opinions. And no democratic process is going to give you a constitution you'd like better when your opinions of what makes a good constitution are so uncommon. Hilary got barely more votes than Trump, only 2.1% more, and more poorly distributed. (Which is what the electoral college, by design, punishes.) Presidents have won plurality victories and been treated as legitimately elected with a lesser percentage of the vote than Trump got. And that was with both of them going into that election knowing full well that popular vote majorities didn't mean squat, and the EC was where victory was to be found. It's quite possible that, if the popular vote had meant anything, Trump could have managed to win that, too. The bottom line is, roughly half the voting public approve of Trump's policies and performance. If Trump is a monster, then half the public WANT a monster. But, of course, Trump is NOT a monster, and flying spittle is not a good look for you. You should take a chill pill, perhaps literally. And reflect that if Trump and his voters were half the monsters you like to portray them as, this would be a very, very different country. Why, the very fact that you feel safe expressing these opinions suggests to me that, on some level, you're aware that they're unrealistic. You should reflect on that.
targeted killings (i.e., assassinations)
I find this framing dubious. An "assassination" is to me an illegal killing of a political leader. Use of authorized military force to "target" enemy combatants is not per se assassination. Now, certain targeted killings by our government were and to the degree it is still happening, assassinations. But, targeting people with drones etc. is not "i.e." without specifics. As to the legality of the killing here? Unclear to me. See, Lawfare for a couple good analysis pieces. Horrible idea? Probably. The power of the executive in military matters was always a problem, more so in the modern era. There was limited restraints in place during some isolated battle with Native Americans or on the high seas or so forth. There are means to limit power here and more should be in place. See, e.g., the Iran bill filibustered in the Senate recently. We de facto delegate too much power to the executive. It then is a matter of picking them and the personnel involved. The Ukraine Extortion Racket suggests there are many good personnel in the system. The happenings of the Republican Party at the moment suggests the limits of political checks as well. I think Prof. Levinson is aware he is voicing a certain minority opinion here, including continual Cassandra-like tones regarding how the public and institutions do not accept his framing of constitutional principles. It is a bit amusing for Brett to appeal to the public will though here. The concerns of strict mass opinion surely is not the principle for which the Constitution ignores. Yes, masses repeatedly support bad things or support a system (for a variety of reasons; see the Declaration of Independence on how abuses generally are borne) leaves open bad things. Ditto talk of "spittle" from the "the Left are bank robbers who impeach Trump since they hate Republicans" advocate. Mr. Chill speaks. :) It is troubling that a larger fraction than sanity would warrant support Trump though we know they do it for a variety of reasons. I don't really believe in "monsters" but Trump is an unhinged unfit character. This is not because I don't like the judges he picks or something. Was no fan of Bush43 & thought various things he did very wrong. But, time showed that yeah "we miss ya."
I don't understand why you would have believed that Trump is not a warmonger. I suppose the proverbial cowardice of the bully might have encouraged some hope in that direction, but Trump has done little other than to expand the scope of US military action overseas: more troops; far more drone strikes; far more civilians killed; etc. By this point there shouldn't be any doubt.
But the problem goes further than even the defects in the US constitutional structure. Sure, that structure allows for the Rs to use minority rule to operate the institutions of government: the EC; the Senate; the Judiciary; voter suppression; gerrymandering; foreign interference; incessant lies; obstruction of justice; etc. We can and should do better in terms of formal structure, but it's doubtful that any formal system could preclude a determined faction from some form of oligarchy like this. No system can provide for all the potential methods of abuse, and violating norms to create "loopholes" will always be a tactic for an authoritarian party. No, the US faces a more fundamental problem than even the Constitution: that one of our 2 major parties would rather reign in Hell than serve in Heaven. The problem is not Trump, nor even his enablers in the R officeholders, present and past. The problem is that a substantial minority of the US electorate is simply unwilling to abide by democracy. I think our very ability to survive as even a nominal democracy is balanced on a knife edge.
I'll disagree slightly with Joe on the issue of the term "assassination". There is a common use of the term which is perfectly appropriate here. There's also a technical legal definition which possibly excludes the killing of Soleimani. Given the persistent Trumpian disregard for legal "technicalities", I'm not sure we need to grant the benefit of the doubt outside of a courtroom.
Since the matter has been covered repeatedly here, perhaps Mr. W. et. al. will be interested in a new article on history of the delegation, which is getting some attention. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3512154
I think Mark's first comment has bite though I also think we need more constitutional changes to update our basic governmental document to the 21st Century. It is a bit silly parts of the document geared to the 18th are still there even if it is limber enough to work fairly well as far as things go. My concern with "assassination" is the overlap with "targeted killing," including in the past administration. That is problematic to me. "Assassination" does have a common sense reach and it should not be stretched to mean killing anyone by drone, including enemy combatants using rules of lawful war. I have strongly disputed some people I would otherwise agree with on that subject. As to this specific case, taking everything into consideration including what we know so far from public statements, I'm okay with making a rebuttable presumption Trump did something illegal. Soleimani's position makes the common sense definition of assassination more appropriate as well. I was more concerned with the big picture though also think being agnostic good policy too. If there is a chance the rules allow this sort of thing, it just goes to show the rules need tightening.
Joe: The power of the executive in military matters was always a problem, more so in the modern era.
There is no alternative. Military command is an executive function and cannot be conducted by committee. Our Constitution places a number of checks on the CiC, however. (1) Congress has the power of the purse. This is an imperfect check because the POTUS can start a war and then Congress will be reluctant to cut off soldiers in the field. (2) Congress can impeach a POTUS for violating the Constitution by starting a war without a declaration of Congress. (3) We the People can fire the POTUS during the next election.
Joe:
Prohibitions on assassination are generally limited to political leaders, which is unsurprisingly self-serving. There is no such prohibition on killing individual military leaders. See, for example, our killings of OBL and Japanese Admiral Yamamoto and the British Operation Anthropoid killing SS commander Reinhard Heydrich. Of these, Suleiman is most analogous to Heydrich.
"The problem is that a substantial minority of the US electorate is simply unwilling to abide by democracy."
I assume you mean the one that, after the last Presidential election, tried to suborn Electors, rioted at the inauguration, immediately started plotting impeachment, and urged the President's staff to declare him incompetent?
"the one that, after the last Presidential election, tried to suborn Electors,..."
There's quite a bit of difference to the specific reaction to Trump by the left and the more general efforts by the GOP to suppress Democratic voters and incoming Democratic elected officials.
"Democrat media"
There is, of course, no Democrat media, at least in the sense that there is a huge GOP media apparatus which essentially is a media wing of the party.
"Military command is an executive function and cannot be conducted by committee."
Of course it can be conducted by committee. Perhaps conducted differently with different results but a committee can do virtually anything a single person can. The question is which is preferable along a continuum of interests and values.
BD: "Military command is an executive function and cannot be conducted by committee."
Mr. W: Of course it can be conducted by committee. Perhaps conducted differently with different results but a committee can do virtually anything a single person can. More likely, with few or no results. Under ideal circumstances, when all the parties are acting in good faith, committees require time to arrive at consensus decisions. Wars do not wait for you. The key to winning battles is to make and execute decisions faster than the enemy. Thus, no military in the world commands by committee. We do not live in ideal circumstances. Our politics has plunged into a cold civil war. The parties are blocking policies they would normally support out of pure partisan spite, even if such obstruction harms the nation and its people, on and off the battlefield. To make things worse, since Vietnam, the Democrats have a generation long history of actively working to undermine our wars and even provide aid and comfort to the enemy. See my supra discussion of Obama and Iran. Hell of words, hell of reading. Fire words indeed. Well, surly we wouldn't be able to touch here everything, but, notwithstanding the validity of what has been written, just one major point: The problem doesn't really lie in the constitution, but rather, "standing", and as such, in federal court. The point is, that in the US, there is no such doctrine of public standing ( or, public petitioner). One can't petition federal court, in the name of the public, or public trust, or rule of law. One must bear concrete injury. Particularized one. As such, the judiciary, can't really exercise many times, effective judicial review on the executive branch, especially, in such issues like national security, foreign issues, and the killing of Suleimani as such. So, as long there are independent courts, honest and professional judges ( like in the US ) we are all safe. But,to the bottom of it, things must change, and the meaning of "controversy " in judicial and litigation sense, must change, and become far broader. Thanks
Just forgotten, the link posted( NYT ) seems to be broken, so, here maybe:
https://www.nytimes.com/2020/01/04/opinion/trump-soleimani-strike.html
"So, as long there are independent courts, honest and professional judges ( like in the US ) we are all safe."
We no longer have such courts.
"The problem is that a substantial minority of the US electorate is simply unwilling to abide by democracy."
I assume you mean the one that, after the last Presidential election, tried to suborn Electors, rioted at the inauguration, immediately started plotting impeachment, and urged the President's staff to declare him incompetent? [1] Abiding by democracy would on a basic level involved following the popular vote, but we are constantly reminded that we don't simply live in a democracy. Anyway, moving past debates on the reach of that word, there was not really a "substantial minority" that tried to change the electors' minds, a fantasy really. A limited few tried to use the nature of the Electoral College (in theory, a protection from pure democracy) to convince electors to independently not vote for Trump since they thought the situation so grave the opening left by that system -- not pure democracy -- should be used. In theory, again it's besides the point since so few were involved, I don't think this really is much of a hypocrisy taking Mark's comment on face value. [2] A "substantial minority of the US Electorate" did not "riot." [3] Impeachment is part of the U.S. Constitution. To the degree a person warranted impeachment, the fact the person warranted it early is not failure to abide by democracy. Also, the "plotting" was at best some raw majority of one party showing some desire for impeachment. Which again is part of the constitutional democratic structure in place. The big moment there is they VOTING for a majority of Democrats in 2018 though even then the majority as a whole didn't "plot" impeachment until later. [4] I don't know how much of a "substantial minority" did that but there is an actual constitutional amendment involved there. It's part of the constitutional system. If Trump is unfit, it is not "simply being unwilling" any more than stopping fifteen year olds from voting. Anyway, unlike a range of actual things that occur, including by force of law, there is no actual chance of that happening given the decision-makers on down.
Mr, Whiskas: "Of course it [war] can be conducted by committee." For the long period of Britain's naval supremacy, there was no Navy Minister nor Lord High Admiral. The Royal Navy was run by a committee, the "Commissioners for executing the office of Lord High Admiral". The future King William IV was Lord High Admiral at a time (1829) when it didn't matter; it only lasted a year before he was sacked, after taking a fleet to sea without telling anybody, but he did abolish the cat o'nine tails for most offences. The Admiralty system worked pretty well on the whole, as Villeneuve and many others could have attested.
Bart: War is a defined state in international law, at least since 1648. However Iran saw it, the USA has not claimed that a state of war exists between itself and Iran. It still hasn't. So the applicable law is that of peacetime. A war-like state has been invented between the USA and undefined "terrorists", a bad idea from the outset. The "Cold War" was not a war but a political conflict.
I would agree that, except for the rioting, all those abuses were technically constitutional/legal. There are plenty of actions you could take under the Constitution that would render democracy a joke, it really does not comprehensively protect us against a temporary majority in office deciding to make elections a farce. Constitutions really do rely on those implementing them showing a considerable degree of good faith.
But I agree that Mark's claim is invalid for the reasons you cite. There's no evidence that a substantial minority of the public on either end of the political spectrum would refuse to abide by democracy, unless "substantial" is robbed of all force. (Or "democracy" is defined to mean a political system we have never had in the US, I suppose.) I only threw it back in his face because, hey, did my side do any of those things when we lost elections? Did we riot at Obama's inauguration? Demand that his electors vote for McCain or Romney? Urge his cabinet to remove him? No, we did not. We sucked it up and accepted that we'd lost an election. I think you're demonstrating the real problem here, just as Sandy is: Those on the left are increasingly committed to viewing ideological agreement with themselves as a component of "fitness for office", so that people you disagree with start out unfit before they've done anything wrong. And just governing the way they ran on governing strikes you as doing something wrong, because it's not governing the way you think they should.
"since Vietnam, the Democrats have a generation long history of actively working to undermine our wars and even provide aid and comfort to the enemy."
Typical Bircher conspiratorial paranoid nonsense. Birchers gonna Birch, leopards can't change their spots.
"In theory, again it's besides the point since so few were involved, I don't think this really is much of a hypocrisy taking Mark's comment on face value."
In addition to your points, it's laughable that Brett would offer some minor and irrelevant attempts to "interfere" with the EC -- perfectly Constitutional attempts -- to support a claim that Dems fail to support *democracy*. Rather the opposite, obviously.
"riot at Obama's inauguration? Demand that his electors vote for McCain or Romney? Urge his cabinet to remove him?"
Democrats didn't do any of this when W won. This is Trump specific, he's an unusual case even by his supporters account. And let's be clear, very few 'Democrats' did these things even in the case of Trump.
There was no "substantial minority" involved in said "rioting" even to the degree a small subset of the protesters (a basic part of democracy) did break the law and cause some sort of damage of that sort. It was the most bogus of the four bogus citations.
Mark can explain what he meant. You "threw" what amounted to trolling given how weak the evidence is. As to the problems with "the left," I say perhaps you should worry about your own house, so to speak. Anyway, the merits of the problems with Trump is not a basis of "ideological agreement" except to the degree aiding and abetting his unfitness is somehow a negative result of certain ideologies.
Thanks for the example James. There are of course others. Like most large organizations decisions of modern militarized are often largely by committee(s). You can bet your bottom dollar that this recent drone assassination was one of several options cooked up and prepared by sever committees for POTUS's possible approval. There's some disadvantages to reaching decisions by committee (speed likely chief among them) but advantages too (two heads are better than one). Another question is which is more in line with our aspirational values: we did fight a war to dump a King in our revolution...
James Wimberley: War is a defined state in international law, at least since 1648. However Iran saw it, the USA has not claimed that a state of war exists between itself and Iran. It still hasn't.
A declaration of war is not a prerequisite for a state of war under international or US law. The absence of a declaration...will not itself render the ensuing conflict any the less a war...A state of war will arise upon the commission of an act of force, under the authority of a State, which is done...in a belligerent spirit... Arms And Judgment: Law, Morality, And The Conduct Of War In The 20th Century by Sheldon M. Cohen In 1946, the family of a naval captain who died during he Japanese attack on Pearl Harbor brought suit to enforce a life insurance policy with an exclusion for death caused by war. The family claimed WWII did not begin until Congress declared war after the Pearl Harbor attack. The 10th Circuit denied the family’s claim and held "the formal declaration by the Congress on December 8th was not an essential prerequisite to a political determination of the existence of a state of war commencing with the attack on Pearl Harbor.” New York Life Ins. Co. v. Bennion, 158 F.2d 260 (10th Cir. 1946) Mr, Whiskas: "Of course it [war] can be conducted by committee." For the long period of Britain's naval supremacy, there was no Navy Minister nor Lord High Admiral. The Royal Navy was run by a committee, the "Commissioners for executing the office of Lord High Admiral". The future King William IV was Lord High Admiral at a time (1829) when it didn't matter; it only lasted a year before he was sacked, after taking a fleet to sea without telling anybody, but he did abolish the cat o'nine tails for most offences. The Admiralty system worked pretty well on the whole, as Villeneuve and many others could have attested. There is a difference between management and command. The Commissioners for executing the office of Lord High Admiral managed Royal Navy. As with every other navy, the Royal Navy placed a single officer in overall command of any ship of group of ships deployed to sea. In our military, staffs manage the military, setting and executing policy. Field commanders direct military units at at war. We are discussing the latter - Article II CiC power.
"Democrats didn't do any of this when W won. This is Trump specific"
I've looked at public polling on how much support each party's Presidents get in the opposing party, and you can see a trend over the last few of decades of escalating polarization. I'd argue that Democrats are leading the trend, but really, the data is inherently too choppy to make that case. Presidential approval by party, from Eisenhower to Obama To put this in context, Trump currently has an approval rating among Republicans of about 85%, and among Democrats of 19%
My thesis is that the polarization has reached a point where these sorts of things can now be expected, it just wasn't high enough when W won. Perhaps the next Democratic President will see riots at his inauguration? Nah, Republicans just aren't much into riots.
"Nah, Republicans just aren't much into riots."
Unless they can wear Brooks Brothers. Or hoods -- some fine people on both sides, you know.
"It was the most bogus of the four bogus citations."
Hm, that's a tough choice since none of his examples even came close to meeting the criterion of "undemocratic". "Plotting" to impeach? Nope again. Actually impeaching? Nope. Calling for the invocation of the 25th A? Nope. And that's putting aside the merits.
I have found that Brett likes to use a certain type of argument: find some people on the left - it doesn't matter how few - who advocate for something that he can, often by a considerable stretch - characterize as undesirable or somehow illegitimate - and then use that to stoke his paranoia and then comment on the nefarious purpose of "the left."
Complaining about being opposed to democracy is rich coming from someone who repeatedly says California voters should count less than Wyoming voters, who supports and defends partisan gerrymandering, voter suppression and the like, and threatens revolution if some court decision goes in a way he dislikes. And the notion that "his side" quietly accepted defeat when Obama won is absurd.
By the way, "toad" is me. I was using a different browser than usual and it picked up a different google account.
Brett basically said he was trolling Mark in a comment but part of the reason I responded in detail is that past comments show that it was not just that. The concern, e.g., that impeachment is an expression of illegitimate partisanship on some basic level was voiced in the past. So, you know, he clearly also was quite serious.
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The delegation article is a bit of a mixed bag for the layperson but it has various useful aspects, including an extended discussion of early practice that shows delegation clearly occurred. Also, it is well timed, since there appears clear evidence a majority of the Supreme Court is open to change the rules big time here. The article at one point cites another contributor to this blog (GM) as suggesting the Supreme Court would not go too far -- it cited U.S. v. Lopez as an example. But, that Commerce Clause opinion might have been limited in scope, but on principle it was important. And, things have shifted more to the Right since the mid-1990s.
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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 |