Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Collective-Action Constitution and the Community of Legal Scholars Constitutional Collaboration and Constitutional Showdowns Collaborative and Abusive Constitutionalism Balkinization Symposium on Aileen Kavanagh, The Collaborative Constitution "Post-Birth Abortions" (Warning: "NSFW" and Probably NSF My Reputation) The Collective-Action Constitution and Comparative Federalism Against Some Common Versions of Constitutional Originalism: A Comment on Jonathan Gienapp Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief-- Collected Posts Class, Race, U.S. Statebuilding and Popular Constitutionalism Blogging Sabbatical Democracy As Collective Action The Collective Action Constitution and the Conscientious Legislator What Comes Next? The Administrative State and the Collective-Action Constitution What is the “Collective-Action Constitution”? The Collective Action Constitution(s) Will a Credible Public Please Stand Up? Restoring Faith in Congress Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution The District of Columbia in Contingent Presidential Elections Supreme Court Endorses Neutrality Triangulation Approach to Constitutionality of Platform Regulation Ideas and Interest: or Why the Have-Nots Used to Come Out Ahead Debt Relief and the Multifaceted American State The Meanings and Pathways of American Political Development Call For Papers--National Conference of Constitutional Law Scholars Move Over, Grant McConnell Debt relief as a window onto the American state Is Democracy Coming to the USA? (with a nod to Leonard Cohen) Turning the Kaleidoscope on Debt Relief: What APD can Teach Us about How and When Politics Works State-building in the Judiciary, Judicial Independence, and Judicial State-building Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution-- Collected Posts Federalism, the Business Cycle, Debtor Organization and the Politics of Debt Both Descendants and Ancestors: A Response to the Contributors On the Genre “Too Much Law/Too Little Law” And Forgive Us Our Debts: Race, Class, and Ideologies in America Balkinization symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief The continuing importance of Ernest Renan Balkinization Symposiums-- A Continuing List A Federalism of Forgetting and Reimagining From Ideological Origins to the Interbellum Constitution
|
Saturday, September 14, 2024
The Collective-Action Constitution and the Community of Legal Scholars
Neil Siegel
For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024) In The Collective-Action Constitution, I use what I have learned in law, history, political science, and economics to offer a broad, deep theory of the U.S. Constitution’s federal structure. I argue that the Constitution’s primary structural purpose, both originally and today, is to empower the federal government to solve collective-action problems for the states and to prevent the states from undermining those solutions or causing such problems. That main structural purpose is reflected in, and reinforced by, Chief Justice Marshall’s two holdings for the U.S. Supreme Court in McCulloch v. Maryland, 17 U.S. 316 (1819), that (1) Congress may create a national bank, thereby facilitating the solution of multi-state collective-action problems; and (2) states may not tax it, thereby preventing states from interfering with those solutions or creating collective-action problems. Any faithful account of what the Constitution is for and how it should be interpreted, I contend, should include that main structural function. Friday, September 13, 2024
Constitutional Collaboration and Constitutional Showdowns
Guest Blogger
For the Balkinization symposium on Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2023). Mark Tushnet Aileen
Kavanagh offers an extremely important alternative to the common way of organizing
our thinking about constitutional review around the dichotomy “judicial” and
“political” constitutionalism. We should see the political branches and the
courts as collaborators in creating constitutional meaning, not as competitors
one of whom must ultimately prevail. Her
analysis has two key components. The first is a distinction between the
quotidian work of legislatures and courts and the moments of showdowns between
them. Collaboration characterizes the former, conflict the latter. In their
daily work our institutions collaborate to advance “the common goal of securing
just government under the constitution” even as political actors disagree about
the means of doing so. Second,
Kavanaugh insists that we take a realistic view of the actors themselves.
Moving beyond the now well-accepted proposition that legislatures are a “they,”
not an “it,” she asks us to look inside both the legislative and executive
branches. When we do we see complex bureaucracies staffed in part by short-term
careerists who are there for a while and then move on, long-term civil servants
who build up expertise, and more. In the end, I suggest, Kavanaugh opens the
way for us to construct an account of constitutional meaning that integrates
the quotidian and the showdown. Thursday, September 12, 2024
Collaborative and Abusive Constitutionalism
Guest Blogger
For the Balkinization symposium on Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2023). Stephen Gardbaum Aileen Kavanagh’s The Collaborative
Constitution is a rich and wise book.
It has an adult in the room quality by comparison with the quarrelling
pro-legislature and pro-courts camps, which have distracted us while the
executive has quietly and nearly invisibly extended its domination almost everywhere. With its emphasis on unwritten norms of
cooperation, collaboration, and self-restraint among the three branches as
perhaps the central feature of well-functioning constitutional government, the
book provides a major and important corrective to both the Madisonian model of
the separation of powers and the aspirations of institutional designers. Balkinization Symposium on Aileen Kavanagh, The Collaborative Constitution
JB
At the conclusion, Aileen will respond to the commentators. Wednesday, September 11, 2024
"Post-Birth Abortions" (Warning: "NSFW" and Probably NSF My Reputation)
Mark Tushnet
With some trepidation but on the theory that it often makes
sense to try to understand positions taken by those with whom one has deep
disagreements, here’s my stab at the claims that my side would allow killing
infants after very late term or post-birth “abortions.” My side responds that
such actions are clearly infanticide in the latter instance and are probably infanticide
in the former as well if the fetus/infant is “viable”—and are unlawful
everywhere. Roe clearly allows states to substantially restrict the
availability of very late term abortions, etc., but it doesn’t require that
they do so. Some of the proposals to protect the right to choose, opponents
say, would allow such abortions/procedures. (I note that proposals to “restore Roe”
wouldn’t in themselves do so. But, I’m reasonably sure that most supporters of “restore
Roe” legislation have more than Roe in mind because, for example,
such supporters want to repeal the Hyde Amendment, which according to the
Supreme Court is compatible with Roe. And some supporters of “restore Roe”
legislation would almost certainly press for expansive interpretations after
enactment—including an interpretation that would require the state to allow very
late term abortions. But what “restore Roe” means isn’t my
concern here.) The question then is, what do those proposals say about the
treatment of the infant afterwards? Opponents refer to former Virginia governor
Ralph Northam’s statement that “a discussion would then ensue between the
physicians and the mother.” I think the most sensible interpretation of Northam’s
statement, one that he later sort of confirmed, is that actions taken with
respect to the infant would have to meet the medical standard of care required
in the circumstances. Sometimes that standard of care would require substantial
efforts to sustain the infant’s life; sometimes it would be, “let nature take
its course”; and sometimes—I suspect rarely—the standard of care would allow
doctors to take active measures that would have the effect of ending the infant’s
life (the equivalent to the standard of care applicable to end-of-life treatment
of anyone else). The bottom line, then, is that the “post-birth abortion”
argument is actually about euthanasia: “Killing babies” is the rhetorical
equivalent of “killing Grandma.” And serious arguments for and against allowing
euthanasia are typically pretty complicated and nuanced. In today’s political climate I don’t think we can expect arguments
(about anything, really) to be developed with any degree of nuance, and so—to
be clear—I’m comfortable with the response in daily political rhetoric from my
side that no state permits infanticide. But there’s more substance to the other
side’s arguments than that rhetorical dismissal suggests. Monday, September 09, 2024
The Collective-Action Constitution and Comparative Federalism
Guest Blogger
For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)
Erin F.
Delaney Neil
Siegel’s excellent new book, The Collective-Action Constitution, argues
the U.S. Constitution must be understood in light of its structural purpose:
its foundational attempt to articulate a system of shared and divided powers. As foreshadowed by the title, Siegel’s claim
is that the coordination and cooperation challenges that define collection-action
problems drove the structure and enumeration of centralized power(s) under the
1789 Constitution, and that acknowledging and explicating these dynamics can
help resolve interpretive questions. I
find much of Siegel’s account persuasive and look forward to engaging with the
implications of his theory for U.S. constitutional law. For purposes of this contribution, I will
focus on its synergies with the current zeitgeist in broader federal theory and
comparative federalism and raise a few questions for future work. Friday, September 06, 2024
Against Some Common Versions of Constitutional Originalism: A Comment on Jonathan Gienapp
Mark Tushnet
Contemporary originalism has two components: a historical component describing the original public meaning/understanding of specific constitutional terms, and a jurisprudential component explaining why the material in the descriptive component has authority over us today. Suppose we take the first component as an effort to identify the meaning(s) given specific constitutional terms by actual white men in the late 1780s. Jonathan Gienapp shows in “Against Constitutional Originalism: A Historical Critique” that many self-designated originalist inquiries simply can’t identify those meanings. Working in the tradition of Quentin Skinner, Gienapp shows that contemporary originalist inquiries don’t attempt to describe the larger conceptual universe, including the concepts of a constitution and its fixity and law itself, within which the specific constitutional terms are located. But, he shows, those terms took on their public meaning only with reference to that larger universe. And, even more, Gienapp shows that wide disagreement existed about what the larger concepts meant. It would be miraculous, though not I suppose impossible, were the public meanings of specific terms to be widely agreed upon when placed in all the available conceptual universes of larger concepts. All that is fine, and as someone skeptical of originalism’s claims I’m naturally sympathetic to Gienapp’s critique. There’s another way to understand contemporary originalism, though, which Gienapp addresses but doesn’t fully confront because the self-described originalists who offer it allow him to criticize them by saying things that make it seems as if they were close intellectual relatives of other originalists, which allows Gienapp to subject them to the criticisms he levels at their relatives. Start with the accurate observation that the actual practice of most originalists isn’t well suited to finding out what actual white men understood constitutional terms to mean, for the reasons Gienapp gives. (I was struck by the extent to which Gienapp uses the word “actual”—properly so—in his exposition.) One might infer from that observation that these originalists aren’t trying to find out what actual white men understood the terms to mean. What might they be trying to do? Well, flip things around: Let’s say that these originalists are defining “original public meaning/understanding” to be “the material that our methods of inquiry produce.” My personal view is that the Baude-Sachs approach to which Gienapp devotes a chapter is a not terribly well articulated version of this proposition. Gienapp picks up on some of the places where their difficulties in articulation—mostly, attempts to demonstrate their continuing affiliation with traditional originalists—weaken their argument. He also notes that it’s early days for their approach and that maybe they or others will be able to clean it up. But, he also, I think accurately, says that at heart their approach isn’t really originalist in a sense that most self-identified originalists would recognize. (I can’t resist here an observation applicable to characterizing Jack Balkin as an originalist [as well as Baude-Sachs], from an anecdote associated with Abraham Lincoln: Asked, “How many legs does a horse have if you call its tail a leg?,” Lincoln answered, “Four. Calling a tail a leg doesn’t make it one.”) To return to the proposition that the material turned up through the practices of self-described originalists is definitionally the public meaning/understanding: To the extent that this version is a definition, it’s hard to see what sort of critique could be leveled against it. The real work with respect to this version would have to be done by focusing on the second, jurisprudential component of originalism. My view is that, with respect to the common versions of originalism that Gienapp critiques, the jurisprudential component is a lot of hand-waving. Much of the hand-waving is no more than that; the “this Constitution” claim, which Gienapp refutes, is one as are quite common arguments about obligations flowing from versions of social contract theory and arguments about the superior neutrality or at least weaker subjectivity associated with originalism. For me, the best types of hand-waving are claims that the material has authority because the provisions as understood do a pretty decent job of giving us a well-functioning government and that other ways of trying to come up with such a government are, on net, less good. (I think this is a cleaned up version of an account offered by McGinnis and Rappaport.) But, with Gienapp’s critique in hand, the jurisprudential claim has to be wrong because these originalists haven’t identified what actual people understood the terms to mean and therefore can’t show that what they understood the terms to mean sets up a pretty decent government, etc. Because the second, definitional, approach to original understanding is different, we’d have to know what the jurisprudential argument is about it. And because that approach isn’t central to contemporary originalism, we don’t have much to go on here. Again my sense is that the jurisprudential claim is or will be a lot of hand-waving, some of which will reproduce the not terribly good hand-waving we see with respect to the first version. The “pretty decent government” claim might survive, though I think a lot of folks will find it empirically unpersuasive. Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief-- Collected Posts
JB
2. Rogers M. Smith, And Forgive Us Our Debts: Race, Class, and Ideologies in America 3. Teresa A. Sullivan, Federalism, the Business Cycle, Debtor Organization and the Politics of Debt 4. Bradley D. Hays, State-building in the Judiciary, Judicial Independence, and Judicial State-building 5. Julie Novkov, Turning the Kaleidoscope on Debt Relief: What APD can Teach Us about How and When Politics Works 6. Devin Caughey, Debt relief as a window onto the American state 7. Stephan Stoller, Ideas and Interest: or Why the Have-Nots Used to Come Out Ahead 8. Emily Zackin and Chloe Thurston, Class, Race, U.S. Statebuilding and Popular Constitutionalism Thursday, September 05, 2024
Class, Race, U.S. Statebuilding and Popular Constitutionalism
Guest Blogger
For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024). Emily
Zackin and Chloe
Thurston We are grateful
to Jack Balkin and Mark Graber for organizing this symposium and for convening
such an illustrious group of participants. Thank you to our nine interlocutors
– Rogers
Smith, Teresa A.
Sullivan, Bradley D.
Hays, Julie
Novkov, Devin
Caughey, Carol
Nackenoff, Timothy
Weaver, Sarah
Staszak, and Stephan
Stohler – for their generous and insightful responses. We are unabashed
fans of their scholarship, so it is a genuine honor to engage with them now
about ours. Given their brilliance, it is no
surprise that each of these commentators has seen things in our book that we,
who wrote it, did not. Each has also raised important questions that our book
poses and cannot fully answer. We cannot do justice to all of them here, but we’ve
tried to point toward fruitful approaches to several of these questions as we,
along with our fellow scholars of American Political Development,
constitutional politics, and American political economy, continue to
investigate them. Blogging Sabbatical
Gerard N. Magliocca
I've been an active blogger for fifteen years. After much reflection, I've decided that it's time for an extended break. Academic sabbaticals give people time to reflect and to work on other projects. The same will be true here. I'll be back sometime next year. In the meantime, as Edward R. Murrow used to say when signing off, "Good night, and good luck." Wednesday, September 04, 2024
Democracy As Collective Action
Guest Blogger
For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024) Guy-Uriel Charles Neil Siegel’s The Collective
Action Constitution is an important book for scholars of law and democracy.
Admittedly, The Collective Action
Constitution is broadly about constitutional interpretation and not about
the law of democracy. However, understanding the Constitution through the telos
of resolving collective action problems demonstrates the utility of Neil’s book
outside his target area. Commendably,
Neil does not ignore democracy, though understandably, most of what he has to
say is relatively short and comes toward the end of the book. In what follows,
I’m interested in highlighting The Collective Action Constitution’s contribution
to law and democracy. Tuesday, September 03, 2024
The Collective Action Constitution and the Conscientious Legislator
Guest Blogger
For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024) David A. Strauss Neil Siegel’s Collective Action
Constitution is a terrific book. Its underpinning is an idea that is as
basic as it is important: government exists to deal with problems that come
from people living together in less-than-perfect harmony. Professor Siegel
molds that general idea into a more precise claim. The U.S. Constitution, he
says, should be understood as a way of dealing with collective action problems,
carefully defined. Professor Siegel shows how that approach worked its way
through U.S. constitutional law, consistently if often only implicitly and in
general ways, from the beginning. And he applies that idea in a way that
illuminates one subject after another: the book’s coverage of U.S.
constitutional law is exceptionally comprehensive. The theoretical arguments
are fresh, sophisticated, and clarifying, but – importantly – they never lose
touch with actual constitutional law. The Collective Action Constitution doesn’t just shed light on, and
engage in criticism of, existing constitutional law; it opens doors, giving us
new ways of thinking about constitutional questions. To pick one example, among
many possibilities: I am not a fan of the anti-commandeering doctrine, but I think
the book gives a better defense of it than anything the Court has said. Let me focus,
though, on something that more directly implicates the central claims of the
book: Professor Siegel’s discussion of Heart of Atlanta Motel v. United
States and Katzenbach v. McClung, the 1964 Supreme Court decisions that
upheld, on the basis of the Interstate Commerce Clause, the public
accommodations provisions of the Civil Rights Act of 1964. Monday, September 02, 2024
What Comes Next?
Gerard N. Magliocca
I'm reposting this essay that I wrote after Trump v. Anderson. Other than changing "President Biden" to "President Biden and Vice-President Harris," the rest of the analysis stands. Sunday, September 01, 2024
The Administrative State and the Collective-Action Constitution
Guest Blogger
For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)
Jessica Bulman-Pozen In a field that does not want for
entries, Neil Siegel has offered a powerful account of the U.S. Constitution’s
primary structural purpose. The Constitution, he argues, was established to solve
collective-action problems, including cooperation problems and coordination
problems. Because the states generally cannot solve such problems on their own,
the Constitution empowers the federal government, and Congress in particular,
to do so. Harnessing the constitutional methodology of McCulloch, Siegel
richly describes and defends what it means to understand the U.S. Constitution
as a collective-action Constitution. In addition to the usual stomping ground
of Article I, section 8, he analyzes a range of other provisions and practices,
from interstate compacts to the right to travel to national security
operations. And he offers suggestions for improving our collective-action Constitution
in a time of congressional gridlock. It is a great achievement, a book I will
happily return to in coming years as I teach and write about federal
constitutional law. Friday, August 30, 2024
What is the “Collective-Action Constitution”?
Guest Blogger
For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024) Richard M. Re
Neil Siegel
has written a grand book on collective action problems and their pervasive role
within constitutional law. The volume of course includes thorough discussion of
topics like the Commerce Clause where collective action logic is familiar, but
it also journeys quite a bit farther, reaching such diverse matters as
interstate compacts, national security, federal court jurisdiction, and the
presidential veto. Methodologically, the book deploys historical, game
theoretical, doctrinal, and many other tools. And, perhaps most compellingly,
the book also situates “the Collective-Action Constitution” alongside other
constitutions, such as “the Reconstruction Constitution” (p.357) that protects
individual rights. Recognizing multiple constitutions allows the book to pursue
its thesis without losing sight of other foundational legal values within the
legal system. It is hard to capture how wide-ranging, inquisitive, and nuanced
this project turns out to be. If you want to better understand virtually any
structural issue in constitutional law, this book can help. Thursday, August 29, 2024
The Collective Action Constitution(s)
JB
For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024) The basic thesis of The Collective-Action Constitution is that one should interpret the U.S. Constitution so that the national government is empowered to solve collective action problems among the various states. Siegel argues that this collective action principle also explains much of the design of the 1787 Constitution. The argument can be originalist but it need not be. It is a structuralist argument focused on contemporary solutions to contemporary problems. Many people have made arguments of this kind before in particular contexts, but no one, to my knowledge, has offered as comprehensive an account of the entire Constitution and its various provisions through the lens of collective action. It is a remarkable achievement that is unlikely to be surpassed. Wednesday, August 28, 2024
Will a Credible Public Please Stand Up?
David Pozen
Public law discourse and
practice revolve around the concept of the public. Public opinion
is said to constrain the Court, curtail executive abuse, and determine the
winner of interbranch conflicts. Agencies are asked to regulate for the
public welfare while complying with public records laws, public meetings
laws, and public notice laws. Courts grant preliminary injunctions in the public
interest. And on and on. But who or what is this public that
is endlessly invoked as a source of practical guidance and democratic
legitimacy for public law institutions and decisions? And how do the
decisionmakers know what “it” wants or needs? Clear answers to these questions are elusive, as contemporary legal scholars and practitioners tend to appeal to the public without a great deal of specification or reflection. In a new paper titled Looking for the Public in Public Law, political theorist Nikhil Menezes and I try
to document this slipperiness; show how it elides important conceptual, empirical,
and normative difficulties that have become increasingly acute in recent years;
and suggest possible responses. Here is the abstract: The “public” is everywhere and
nowhere in contemporary public law. Everywhere, in that the term is constantly
invoked to justify and explain existing arrangements. Nowhere, in that serious
attempts to identify a relevant public and elicit its input are few and far
between. Scholars and officials depict the American public as playing myriad
roles in governance—checking, guiding, approving, repudiating—without offering
an account of how public preferences are formed or how they exercise influence
on the questions of interest. This Article seeks to identify and
call attention to the foundational dilemmas underlying this disconnect, to
clarify their normative contours and intellectual history, and to propose a
pragmatic response—grounded in the recovery of the public’s role as an author
and not just a monitor of public law. We first detail how public law’s
stylized appeals to the public reflect analytic imprecision and inattention to
the values, views, and votes of actual people. We then show how these omissions
and obfuscations leave public law vulnerable to critiques from both the left
and the right, which have been gaining force on account of broad
transformations in the administrative state, social structure, and public
sphere. It may not be possible to resolve these dilemmas fully or to redeem the
public writ large as an agent in public law. But drawing on recent political
science work on deliberative democracy, we outline a research and reform agenda
for identifying, constructing, and empowering coherent publics (plural) capable
of legitimating legal change. Restoring Faith in Congress
Guest Blogger
For the Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution (Oxford University Press, 2024)
It often seems
as though Congress is the most beleaguered government institution. Complaints
of congressional gridlock and polarization—and talk of a “do nothing
Congress”—abound. So it is refreshing to see scholarship that highlights the
central role of Congress in our constitutional scheme. Neil Siegel’s The
Collective-Action Constitution gives pride of place to Congress. Siegel
argues that one of the Constitution’s original and primary purposes was to
solve collective-action problems among the several states, and that Congress is
the institution with both the constitutional authority and the democratic
legitimacy to carry out this job. Siegel’s terrific
work takes us painstakingly through the Constitution, showing how many of its
provisions can be understood as designed to solve collective-action problems.
Siegel forcefully argues that a collective-action theory explains not only
Article I powers such as commerce, taxing, and spending, but also
less-often-discussed provisions such as those governing interstate compacts,
extradition, and the admission of new states to the union. Balkinization Symposium on Neil S. Siegel, The Collective-Action Constitution
JB
This week at Balkinization we are hosting a symposium on Neil Siegel's new book, The Collective-Action Constitution (Oxford University Press, 2024). At the conclusion, Neil will respond to the commentators. Monday, August 26, 2024
The District of Columbia in Contingent Presidential Elections
Gerard N. Magliocca
Suppose a presidential election ends in a 269-269 tie. That would a trigger a contingent election in the House of Representatives with each state getting one vote. (This last occurred in 1825.) In that contingent election, the District of Columbia would not be represented. This is strange given that the District chooses presidential electors and would be, by necessity, essential for triggering the contingent election. I wonder if the Framers of the 23rd Amendment considered this problem, overlooked the issue because contingent presidential elections are rare, or might have said that the District should be treated as a state with voting rights in Congress in this singular circumstance. Thursday, August 22, 2024
Supreme Court Endorses Neutrality Triangulation Approach to Constitutionality of Platform Regulation
Guest Blogger
Ideas and Interest: or Why the Have-Nots Used to Come Out Ahead
Guest Blogger
For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024). Stephan Stohler
In his agenda-setting book Age of Reform, Richard
Hofstadter claimed that an ethical code had evolved alongside the yeoman
farmers of the nineteenth century. That code made a promise. If farmers worked
hard and conducted themselves honestly and frugally in their economic affairs,
they could largely expect to live a life where their needs were met. The
interesting part of Hofstadter’s story occurred in the latter half of the
nineteenth century when industrialization ruptured the relationship between
economic behavior and individual ethics. That rupture was driven in no small
part by mechanical innovations and volatile market prices. To overcome slight downturns in agricultural
prices, farmers often transformed their farms into industrial projects, investing
in land and machinery to increase their overall yield. The problem, however, was that although their
calculations were individually rational, the absence of coordination only
exacerbated price declines as farmers collectively tended to overproduce, often
leaving farmers in a position where they could not make good on their debts. The interesting piece of Hofstadter's work is not the
economic story but rather the knock-on effects of such failures for a more
general understanding of the relationship between economic behavior and
collective morality. Industrialization,
especially agricultural industrialization, radically transformed an ethical
system for which many Americans were unprepared. And Hofstadter's implicit
thesis was that the politics of the Age of Reform could not be understood
unless historians appreciated reformers’ dual efforts to shore up not just the
economy but also to reimpose a moral order on American life. While Hofstadter’s argument is interesting
for understanding the politics of the era, the book never provided the kind of
systematic defense of this argument. Wednesday, August 21, 2024
Debt Relief and the Multifaceted American State
Guest Blogger
For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024). Sarah Staszak In
The Political Development of American Debt Relief, Emily Zackin and Chloe
Thurston provide a multifaceted, insightful, and highly important account of
the politics and political development of debt relief. Their nuanced, historical approach—which moves
seamlessly between policy development in the courts and legislatures, as well
as organizational efforts at both the state and federal level—provides a
methodological scope that allows them to illuminate notable differences and
possibilities in those mobilizing for debt relief over time. The authors also deftly combine their analysis
of policy development with the important fractures of race and racism that both
empower at times white borrowers while simultaneously denying opportunities to
Black Americans. This is most notable in
the late 19th century, with the somewhat surprising mobilization (at
least by today’s standards) of white farmers, occurring simultaneously with the
rise of Southern and national racial exclusions and Black agricultural
indebtedness. By the time of the New Deal, however, even white borrowers—particularly
more industrial wage earners—became stigmatized as immoral, reckless with their
money, and undeserving of government support. Despite this early period of success,
then, from the New Deal on, Zackin and Thurston point to the puzzling lack of
mobilization by those with debt in legislative debates over bankruptcy law, as
well as the absence of labor and civil rights advocacy organizations in prioritizing
debt issues. Tuesday, August 20, 2024
The Meanings and Pathways of American Political Development
Guest Blogger
For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024). Timothy P.R. Weaver In this engaging
and authoritative account of the politics of debt relief in the United States,
Emily Zackin and Chloe Thurston make a major contribution to the burgeoning
work on American political development (APD) that emphasizes political economy
and that which views APD though a multi-scalar lens, thereby uncovering the different
tempos and registers of political development at the local, state, and national
levels. In The Political
Development of American Debt Relief Zackin and Thurston build upon their
own influential work in these areas. While in Looking
for Rights in All the Wrong Places, Emily Zackin refined our
understanding of positive rights in the American political tradition through a
focus on state constitutions, Chloe Thuston located the politics of credit and homeownership
in the political economy at the urban, state, and federal levels in At
the Boundaries of Homeownership. Having combined forces, Zackin
and Thurston offer a compelling account of a highly consequential but understudied
area of APD. In so doing, they tell a story that not only casts its eye on
multiple levels of government but also across the ideas, organized interests,
and institutions that both created and were created by struggles over debt
relief. While so much could be written about this wonderful book, here I will
focus on three areas that particularly struck a chord with me: the meaning of development,
the role of ideas, and the related shift in party ideology and policy in the
late twentieth century. Monday, August 19, 2024
Call For Papers--National Conference of Constitutional Law Scholars
Gerard N. Magliocca
NATIONAL CONFERENCE OF CONSTITUTIONAL LAW SCHOLARS THE REHNQUIST CENTER is pleased to announce the seventh annual National Conference of Constitutional LawScholars. This year’s event will be held at the historic Hacienda del Sol Guest Ranch Resort in Tucson on March 28–29, 2025. The late March weather should be beautiful, and the resort has breathtaking views of the Santa Catalina Mountains, with many outdoor recreational opportunities nearby. As in previous years, there will be a series of panels organized by subject matter moderated by Distinguished Commentators. The program will also include several break-out “lightning sessions,” in which participants deliver short, no-paper presentations on early-stage projects followed by group discussion. The conference schedule will include plenty of time for informal conversation and outstanding food. Martha Minow (Harvard) will give a keynote lecture. Distinguished commentators for 2025 include: } Charles Barzun (Virginia) } Seth Davis (UC-Berkeley) } Seana Shiffrin (UCLA) } Samuel Bray (Notre Dame) } Saikrishna Prakash (Virginia) } Amanda Tyler (UC-Berkeley) All constitutional law scholars are invited to attend. Those wishing to present a paper for panel discussion should submit a 1- to 2-page abstract by Oct. 1, 2024. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by Nov. 1, 2024. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar. Those wishing to participate in a lightning session should submit a working title and 1- to 2-sentence topic description by Oct. 1, 2024. Selected participants will be notified by Nov. 1, 2024. We welcome—and strongly encourage—concurrent submission of paper proposals and lightning-round topics. The Rehnquist Center will provide breakfast and lunch for all registered conference participants and a Friday dinner and reception for panelists, lightning-round presenters, and commentators. Participants must cover travel and lodging costs. There is a conference registration fee of $250, which is waived for all panelists, lightning-round presenters, and commentators, as well as University of Arizona Law students and faculty. In addition, a limited number of scholarships are available to those unable to attend the event otherwise. Proposal submissions should be sent to Bernadette Wilkinson (bwilkins@arizona.edu) by Oct. 1, 2024. Logistical questions should be directed to Arizona Law’s events team (law-events@list.arizona.edu). CONFERENCE ORGANIZERS } Andrew Coan (Arizona) } Rebecca Aviel (Denver) } Eunice Lee (Arizona) } Shalev Roisman (Arizona) } David Schwartz (Wisconsin) Move Over, Grant McConnell
Guest Blogger
For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024). Carol Nackenoff Nearly sixty years ago, Political Scientist Grant McConnell
famously contended that, from the founding era, Americans have been so fixated
on curbing the abuse of public power that they were blind to the insidious
exercise of private power.[1] Unaccountable private associations and
pressure groups frequently captured regulatory agencies, shaping important
aspects of public policy. And governance
in private organizations lacked limits that might protect against tyranny over
minorities. McConnell worried about the erosion of American democracy and
declining pursuit of the public interest. Referencing Louis Hartz,[2]
McConnell asserted that American political thought has been distinctive in its views
about the exercise of private power, when private power is noticed at all, since
class is not part of the American political vocabulary. Sunday, August 18, 2024
Debt relief as a window onto the American state
Guest Blogger
For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024). Devin Caughey
The Political Development of
American Debt Relief
(PDADR) is a concise yet panoramic account of the political economy of
debt relief over the course of American history. From Daniel Shays to Occupy
Wall Street, it documents the mutable and sometimes surprising politics of debt
as it has evolved since the founding. Along the way, PDADR provides an
illuminating perspective on the development of the American state and its
relationship to the American political economy. Anyone familiar with the prior work
of its authors will not be surprised at many of PDADR’s themes. In
previous work, each author has helped illuminate the complex and distinctive
character of the American state and the politics it engenders. In her work on
state constitutions, Emily Zackin has shown that rather than being a repository
of Lockean liberal principles enforced by politically insulated judges, the
malleable constitutions of U.S. states have long been used by popular movements
as vehicles for asserting positive rights and enacting specific legislation
that constrains judicial discretion.[1]
Chloe Thurston’s research on the politics of home ownership shows that while
the U.S. public–private welfare state, with its emphasis on indirect mechanisms
such as subsidized credit, “submerges” the state for beneficiaries of
government largess, it can also politicize ostensibly market transactions in
the eyes excluded groups.[2]
Synthesizing the respective perspectives of its authors, PDADR
highlights similar dynamics in the context of debt relief. Saturday, August 17, 2024
Is Democracy Coming to the USA? (with a nod to Leonard Cohen)
Mark Tushnet
Reading/skimming Democratizing Constitutional Law (Thomas Bustamente & Bernanrdo Goncalves Fernandes eds. 2016), in which I have a short essay on innovative processes of constitutional change in Iceland (now well known, of course) and Brazil (less well-known), I was struck by how narrow is the discourse on constitutional change/reform in the United States. Even suggestions for adopting an override mechanism of some sort are regarded as wildly outre and basically not worth thinking about. Part of the reason, I suppose, is that amending the national constitution is so difficult that the only things worth doing are efforts to innovate within the existing structure (though of course what "the existing structure" is, is itself contestable--whether a statutory override mechanism is constitutionally impermissible, which I take to be the standard position, depends on lots of reasonably contestable assumptions about existing law). Anyhow, another book worth looking at is the Handbook of Democratic Innovation and Governance (Stephen Elstub & Oliver Escobar eds. 2019) (with notably few contributions from or about the United States). Turning the Kaleidoscope on Debt Relief: What APD can Teach Us about How and When Politics Works
Guest Blogger
For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024). Julie Novkov Debt
is an important part of the American
economy. In the second quarter of 2024, the aggregate household debt balance hit
$17.76 trillion dollars, having grown by $3.7 trillion since the end of 2019. Of
this debt, 3.2% of this debt was in some form of delinquency, and in the second
quarter of 2024 alone, around 136,000 people had bankruptcy notations added to
their credit reports.[1]
The emergence of a determined movement to seek debt relief for federally funded
student educational debt has seen political success, twice securing regulations
forgiving some portion of these obligations, but the regulations have faced
stiff and successful resistance in court. In 2023, the Supreme Court
invalidated the first effort authorized under the HEROES Act as beyond the
scope of that Act’s regulatory authorization.[2]
And on August 9, 2024, the Eighth Circuit upheld a district court injunction
against the Biden Administration’s SAVE plan, which would have lowered payment
amounts, stopped the accrual of interest, and forgiven some loans in as little
as ten years.[3]
Yet despite this recent flurry of interest, for many decades the United States
has seen little broad mobilization around debt relief, and the current popular
movement centering on student debt struggles against claims that the debt
relief sought is unfair, rescues frivolous or foolish borrowers, and threatens
to undermine honored norms of responsible personal financial management. In their wonderful new book The Political
Development of American Debt Relief, Emily Zackin and Chloe Thurston use
the tools of American political development to trace how the federal and state
governments have addressed the problem of debt relief across US history. Most
casual observers readily acknowledge the importance of debtor politics in the
Revolutionary Era and the Founding, recalling both the US inheritance of a
common-law system that punished indebtedness and the struggles over
indebtedness that sparked Shays’ Rebellion and partially motivated the
formation of the US Constitution. Discussion of debtor concerns then crop up
around financial panics, but political movements for debt relief receive little
independent analysis beyond broader considerations of class politics, populism,
and the developmental trajectory of US political economy. Friday, August 16, 2024
State-building in the Judiciary, Judicial Independence, and Judicial State-building
Guest Blogger
For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024). Bradley D. Hays
Emily Zackin and Chloe N. Thurston have
written a thoughtfully constructed, carefully researched, and highly accessible
study of debt relief in the United States.
The book’s primary contribution comes through its detailed analysis of
how debt relief policy shifted from debt policies favorable to creditors to
debtor-protective policies as debtors mobilized and, then, regression back to a
creditor-friendly regime. In telling
this story, the authors also contribute to our understanding of institution
building in the judiciary. This story
will be of interest to a wider section of academic who, like myself, know
little about debt policy but are interested in judicial capacity and
authority. For the purposes of this
review, I focus on this state-building and the way it connects to other
episodes within the judiciary. In doing
so, I hope to point out how Zackin and Thurston’s work connects not just to
state-building within the judiciary but to judicial independence and judicially
driven state-building. Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution-- Collected Posts
JB
Here are the collected posts for our Balkinization symposium on Alison LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024). 1. Jack Balkin, Introduction to the Symposium 2. Jonathan Gienapp, Inheriting the Constitution 3. Greg Ablavsky, Facing Federalism(s) From Indian Country 4. Rachel A. Shelden, The Interbellum Constitution On Its Own Terms 5. Anna Law, Reflections on interdisciplinarity and periodization upon reading The Interbellum Constitution 6. Anne Twitty, Going Big by Going Small: Alison LaCroix’s The Interbellum Constitution 7. Simon Gilhooley, Forging Constitutional Politics through the Interbellum Constitution 8. Jane Manners, The Law and Politics of Exclusion in Alison L. LaCroix’s The Interbellum Constitution 9. Evelyn Atkinson, The Creativity and Tragedy of Interbellum Federalisms 10. Aaron Hall, Creativity, Constraint and the Long Founding Moment 11. Christian G. Fritz, The Complexity of American Federalism 12. David S. Schwartz, “Interbellum” versus “Antebellum,” or the Perils of Periodization 13. Connor M. Ewing , From Ideological Origins to the Interbellum Constitution 14. John Mikhail, A Federalism of Forgetting and Reimagining 15. Alison L. LaCroix, Both Descendants and Ancestors: A Response to the Contributors Thursday, August 15, 2024
Federalism, the Business Cycle, Debtor Organization and the Politics of Debt
Guest Blogger
For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024). Teresa A.
Sullivan
Conflict between
debtors and creditors exists to some extent at all times and everywhere, but
under some conditions important shifts in the relationship occur. This book
seeks to explain what led to some of those shifts in American debtor-creditor relations.
Three issues stand out in the analysis: constitutional federalism; business
cycle downturns; and debtor social movements. The privileged
position of property, bolstered by contract, gave creditors the undisputed
upper hand in the original English colonies. Federalism was a potential threat
to this relationship, in case the newly constituted states tilted the balance
more to debtors and away from the creditors, especially creditors located in
other states. The constitutional reservation of bankruptcy to the federal
government was intended to forestall this development. As the early chapters of
this book document, throughout the eighteenth century some state legislatures
did indeed respond to their constituents with forbearances, moratoria, and even
outright nullification of Supreme Court decisions. Both Descendants and Ancestors: A Response to the Contributors
Guest Blogger
For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024). Alison L. LaCroix
Let me begin by thanking Jack Balkin and Mark Graber for generously
organizing this symposium and for convening such a marvelous group of contributors.
I’m extremely grateful to the participants in the symposium – Jonathan
Gienapp, Greg
Ablavsky, Rachel
Shelden, Anna
Law, Anne
Twitty, Simon
Gilhooley, Jane
Manners, Evelyn
Atkinson, Aaron
Hall, Christian
Fritz, David
Schwartz, Connor
Ewing, and John
Mikhail – for their thoughtful and probing engagement with The
Interbellum Constitution. Having sought in the book to capture something of
the symphonic nature of early-nineteenth-century constitutional debates, I’m deeply
honored to have such an esteemed audience of scholars gather in this forum to review
the orchestra’s performance. It is both nerve racking and exhilarating to hear –
from the wings – the commentators’ reactions to my efforts to animate the
parade of characters and the raft of plots that constituted the highly
theatrical worlds of nineteenth-century law and politics. The central claim of The Interbellum Constitution is
that a distinct constitutional world existed in the United States between the
end of the War of 1812, in 1815, and the beginning of the Civil War, in 1861. The
book argues that scholars of constitutional law and thought have largely
overlooked the period, mistakenly treating it as the “flyover country” between
the “real” destinations: the founding and Reconstruction. Wednesday, August 14, 2024
On the Genre “Too Much Law/Too Little Law”
Mark Tushnet
The publication of “Over Ruled: The Human Toll of Too Much
Law” by Justice Gorsuch and Janie Nitze (no link, deliberately), coupled with
my getting to another book in the genre “too much law” as I read down my
accumulated shelf of unread books provoked me to think about the genre. And Forgive Us Our Debts: Race, Class, and Ideologies in America
Guest Blogger
For the Balkinization Symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief (University of Chicago Press, 2024). Rogers M. Smith
With apologies to most of the law professors reading this, I
start with a preliminary note of interest primarily to political scientists.
Many of our quantitative behavioralist colleagues in the American politics and
public law subfields have trouble concealing their desires to proclaim that the
linked scholarly enterprises of American political development (APD) studies
and historical institutionalist public law studies are “dead.” This superb book
by two of the discipline’s brightest young senior stars, Emily Zackin and Chloe
Thurston, shows that those endeavors are instead breaking vital new ground. Though their study covers the whole of U.S. history, as only
APD scholars and some allied law professors like Bruce Ackerman and Aziz Rana
are prone to do, their core findings can be briefly stated. Even though opposition
to debtor relief legislation contributed to the creation of the Constitution,
even though it provided explicit new protection for contracts, even though the
Supreme Court regularly invoked it to ban debtor relief laws up to the New
Deal, in the 19th century, farm movements even more regularly won
legislative enactments of a variety of kinds of debtor relief measures, though
these almost exclusively benefited white farmers. But then, even though the
Supreme Court finally approved a state relief measure for those who couldn’t
pay their mortgages in Home Building and Loan Association v. Blaisdell in
1933, creditors began winning measures serving their interests in the latter
part of the 20th century, up to the present—with, again, Black
debtors suffering most as a result. While telling this story, The Political
Development of American Debt Relief identifies, typologizes, and explains
most of the major state and national laws that have governed debt and
bankruptcy. It also lays out the battles over institutional structures that
have led to today’s system of federal bankruptcy courts. Balkinization symposium on Emily Zackin and Chloe Thurston, The Political Development of American Debt Relief
JB
At the conclusion, Emily and Chloe will respond to the commentators. Thursday, August 08, 2024
The continuing importance of Ernest Renan
Guest Blogger
Sandy Levinson John Mikhail has written a wonderful (in every sense of the
word) review of Alison LaCroix’s pathbreaking reminder of the importance of
what she calls “the interbellum Constitution,” i.e., the Constitution that
developed following the War of !812 through the outbreak of the Civil War. He emphasizes the “forgotten” debate during
the Virginia ratification convention, where
Patrick Henry altogether plausibly argued that the new Constitution,
correctly understood, would allow Congress to abolish slavery at some point in
the future. By the early 19th
century, however, what has come to be called “the federal consensus” had
developed, by which it was taken as a given that Congress lacked any such
powers, most certainly regarding enslavement in the states where it already
existed. Lincoln agreed, as evidenced in
his First Inaugural. His “red line,” so
to speak, was expansion of slavery into the territories. As for Virginia and other enslaving states,
he articulated his support of the “original Thirteenth Amendment,” which would
have offered a textual guarantee to those states that the status of the
peculiar institution would never be changed save by their own voluntary
agreement. Balkinization Symposiums-- A Continuing List
JB
Over the the years we've done dozens of symposiums here at Balkinization. This list offers a summary of the books and subjects we've covered. We will continue to add links to earlier symposiums as well as updating the list with new ones. For each symposium, the date assigned is the date of the last in the series of posts. Many thanks to all of the people who've written for us over the years. You have enriched legal scholarship with your efforts. Monday, August 05, 2024
A Federalism of Forgetting and Reimagining
John Mikhail
Sunday, August 04, 2024
From Ideological Origins to the Interbellum Constitution
Guest Blogger
For the Balkinization Symposium on Alison L. LaCroix, The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale University Press, 2024). Connor M. Ewing Introduction In his recent book, The Federal Contract, Stephen Tierney
makes the provocative observation that “the origins of the Constitution of the
United States are viewed today as ‘federal’ only through a retrospective prism”
(9). At least as an intellectual conceptualization, he continues, federalism
developed “not by reference to what the American constitution was intended to
be, but by what it became” (ibid.). It is no coincidence that Tierney proceeds
to cite Alison LaCroix’s 2011 book, The Ideological Origins of American Federalism, in support of
this point. There she argues that the emergence of American federalism “should
be understood primarily as an ideological development,” centred on the “belief
that multiple independent levels of government could legitimately exist within
a single polity, and that such an arrangement was not a defect to be lamented
but a virtue to be celebrated” (6). On LaCroix’s telling, the creation of the
Constitution was marked by the embrace of “a normative vision of multilayered
government” (10) predicated on a subject-matter division of political
authority. With The Interbellum Constitution,
LaCroix moves from the origins of the federal idea to the consequences of its
constitutionalization. She persuasively shows that, in the decades between the
conclusion of the War of 1812 and the onset of the Civil War, federalism was
not an it but a they. There was not a single operative
definition—much less consensus theory—of American union, but an evolving set of
interpretations, frames, and resolutions oriented toward negotiating the
tensions posed by jurisdictional multiplicity and claims of concurrent power.
“Interbellum constitutional law,” LaCroix writes, “was understood by
contemporaries to be an ongoing process of writing, speaking, and interpreting”
(10).
|
Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |