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 Data Protection: Individuals and Institutions Race, Democracy, and the Politics of Pain: A Review of America’s New Racial Battle Lines Privacy Loss and Harm in an Era of Inference Balkinization Symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair Balkinization Symposium on Kunal Parker, The Turn to Process-- Collected Posts Can Private Law Protect Privacy in Today’s Economy? Method and History Privacy Beyond Consent: Cofone’s Call for Privacy Torts Autonomy v. Autonomy in the Information Economy Privacy Inserts Taking Power Seriously: The Politics of Privacy Asking the Right Questions: How The Privacy Fallacy Can Guide Health Law Out of the HIPAA Trap Valuing Privacy Harms while Structuring Data Governance Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy "Right in Theory, Wrong in Practice:' Women's Suffrage and the Reconstruction Amendments Divine Madness When (and How) Should Courts Use AI? Simulating AI Constitutional Interpretation Flat out redistribution of wealth at the Federalist Society What Loper Bright Illustrates About the Incoherence of the Court's Statutory Interpretation Theory The Law of Conservation of Judgment How AI Learned to Talk Gun Regulation When the Fourteenth Amendment was Ratified The Procedural Turn’s Faith in Elite Judgment From Stable Foundations to Dynamic Processes (and Back?) Historicizing History? The Turn to Process in Comparative Context Artificial Intelligence and Constitutional Interpretation What Law Schools Can Do, Part I: Teach Persuasion The Unbearable Lightness of Process in the Empire of Substance Balkinization Symposium on Kunal Parker, The Turn to Process Trump’s aspiration isn’t Nazi Germany, it’s feudal Germany The Brits Let Me Down My Interview on Times Radio Shifting Standards for What Constitutes a Dispute Just Security pod on historical threats to democracy and January 6 The crumbly philosophical foundations of Trumpism Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism-- Collected Posts In praise of the Washington Post’s cowardice Law and Historical Materialism: A Reply to Critics – Part II Taking "Offers to Pay for Registering" Seriously (Probably a Mistake)
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Friday, December 13, 2024
Data Protection: Individuals and Institutions
Guest Blogger
For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023). Margot E. Kaminski Ignacio Cofone has written a
masterful book arguing for increasing the role of liability in information privacy
law. There is little about this substantive call with which I disagree. Yes,
courts need to do a better job of recognizing and remedying non-consequential
privacy harms (p. 113-114, 157). Yes, as a matter of institutional design,
privacy desperately needs civil liability (p. 89). And yes, much of the
proceduralized control, or consent, on which many privacy laws around the world
rely is steeped in fallacies about how people and markets behave (Ch. 3). I found myself nodding along and
wishing I lived in a country where (a) the Supreme Court weren’t so wedded to a
deeply consequential understanding of privacy, and (b) the political process in
states didn’t repeatedly result in a devil’s bargain with no private right of
action for individuals. The world Cofone wants for us isn’t the world in which
most of us live. But one role of great scholarship is to make us want to give
that world a try. For this Symposium, I address
Cofone’s take on data protection in particular, which unrolls primarily in
Chapter 5. Cofone’s view and overview are careful, informed, and nuanced,
unlike a lot of what has been written about the General Data Protection
Regulation (GDPR). For example, while pointing out that “[c]onsent is key to
data protection law” outside of Europe (p. 90), Cofone observes that under the
GDPR, there are in fact six grounds for lawful data processing, including
legitimate basis. This is a distinction many people miss. Thursday, December 12, 2024
Race, Democracy, and the Politics of Pain: A Review of America’s New Racial Battle Lines
Guest Blogger
For the Balkinization Symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair (University of Chicago Press, 2024). Alexandra Filindra In
America’s
New Racial Battle Lines: Protect v. Repair, Rogers Smith and Desmond King
revisit their examination of America’s racial orders, offering a deep dive into
the ideological battlegrounds defining the MAGA era and beyond. The book builds
on themes from Still
a House Divided and dissects the political and social landscape shaped by
racial politics in the wake of the Obama and Trump presidencies. Smith and King
argue that America’s racial divide today is defined by two opposing institutional
and policy orders—the “Protect” and “Repair” alliances—each representing a
network of narratives, actors, and policy goals that respond to perceived
threats and opportunities in American society. These alliances are newer
incarnations than those seen in the post-civil rights era, bearing distinctive
features that reflect the impact of modern media (especially social media),
demographic shifts, and evolving narratives about race and identity. Privacy Loss and Harm in an Era of Inference
Guest Blogger
Balkinization Symposium on Rogers M. Smith and Desmond King, America’s New Racial Battle Lines: Protect versus Repair
JB
This week at Balkinization we are hosting a symposium on Rogers M. Smith and Desmond King's new book, America’s New Racial Battle Lines: Protect versus Repair (University of Chicago Press, 2024). At the conclusion, Rogers and Desmond will respond to the commentators. Wednesday, December 11, 2024
Balkinization Symposium on Kunal Parker, The Turn to Process-- Collected Posts
JB
1. Jack Balkin, Introduction to the Symposium 2. John Fabian Witt, The Unbearable Lightness of Process in the Empire of Substance 3. Amalia D. Kessler, The Turn to Process in Comparative Context 4. Paul Gowder, Historicizing History? 5. Ajay K. Mehrotra, From Stable Foundations to Dynamic Processes (and Back?) 6. Aziz Rana, The Procedural Turn’s Faith in Elite Judgment 7. Kunal M. Parker, Method and History Tuesday, December 10, 2024
Can Private Law Protect Privacy in Today’s Economy?
Guest Blogger
For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023). Elettra Bietti
A few weeks ago, Carrie
Goldberg, an online victims’ rights lawyer, visited my classroom. Students were
attentive as she recounted her clients’ cases. Nude pictures of a victim
disclosed to her work colleagues by a former boyfriend, child abuse on the site
Omegle, several youth who died after buying suicide kits suggested to
them on Amazon Marketplace: these were clear situations where data and
privacy interferences caused extremely significant losses that courts could
hardly turn a blind eye to. Many–-most—of Goldberg’s cases are fought on tortious
grounds. Most of them form the tip of a much larger iceberg that Ignacio
Cofone, in his book, calls “privacy harms.” Monday, December 09, 2024
Method and History
Guest Blogger
For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023). Kunal M. Parker[1]
Immense thanks
to Paul Gowder, Amalia Kessler, Ajay Mehrotra, Aziz Rana, and John Witt for
their thoughtful, incisive, and occasionally spirited engagements with The
Turn to Process. Many thanks as well
to Jack Balkin for agreeing to host this symposium. In what follows, I set forth some of what I hoped
to accomplish in The Turn to Process.
This will allow me to respond to the points made by the contributors. Privacy Beyond Consent: Cofone’s Call for Privacy Torts
Guest Blogger
For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023). Nikolas Guggenberger
In her seminal
work on boilerplate contracts, Margaret Jane Radin distinguishes between
World A and World B to illuminate the fundamental tension between contract
theory’s ideals and modern contractual reality. World A embodies the classical
paradigm: contracts emerge through meaningful negotiation between informed
equals. Here, parties exercise genuine autonomy, carefully reviewing terms
before signaling informed consent. This world reflects contract law’s
theoretical foundation—voluntary agreements between parties who comprehend and
actively shape their obligations. In World A, freedom of contract justifies the
enforcement of promises against people’s
future selves, as Kaiponanea Matsumura put it. World B depicts contemporary consumer contracting: dense
boilerplate terms imposed unilaterally, often buried in clickwrap agreements or
fine print. Consent becomes illusory, autonomy a farce. Recognizing boilerplate
as binding contracts, Radin argues, fundamentally undermines contract law’s
moral premises. Sheer ignorance cannot justify the waiver of rights or the creation
of duties. When “consent” means blind subordination, contract law no longer
serves its intended function of facilitating voluntary exchange. Or, as Friedrich
Kessler observed some 80 years ago, modern contracting “enables
enterprisers to legislate by contract ... in a substantially authoritarian
manner without using the appearance of authoritarian forms.” In his tour de force through privacy law’s systemic
shortcomings, The Privacy Fallacy,
Ignacio Cofone squarely locates contemporary data management practices in the
privacy equivalent of World B, that of meaningless acquiescence to unread
privacy policies. And he is right in his assessment. ‘Notice and choice’ is inherently
deficient. It indeed provides neither notice nor choice. Worse, it is inept to
address informational capitalism’s threats to the common good, from democratic
self-governance to social equality. However, Cofone’s critique extends far
beyond the current ‘notice and choice’ framework in the US or the privacy equivalent
of World B more generally. He launches a fundamental challenge to consent as a
regulatory mechanism for informational privacy across sectors and
jurisdictions. His “book’s core premise,” he explains in the introduction, “is
that rather than grounding privacy law on concepts from contract law, which
sets the rules for voluntary agreements, we need to ground it on concepts from
tort law, which sets the rules for harms caused to others.” (p. 4) Sunday, December 08, 2024
Autonomy v. Autonomy in the Information Economy
Guest Blogger
For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).
In
The Privacy Fallacy: Harm and Power in the Information Economy, Ignacio
Cofone delivers a powerful and much needed rebuke of our current approach to regulating
privacy in the information economy. Synthesizing and building on a prior literature
to which Cofone himself has contributed, he shows us how and why the largely
individualistic, contractual and procedural methods of data protection and data
privacy law have persistently failed to deliver. Cofone’s arguments drawn from
the (behavioral) economics of data processing are especially persuasive. As he argues,
under conditions of asymmetric information and power between consumers and
firms, consumer irrationality, uncertainty about future data use, and the
relational, non-rivalrous and only partially excludable nature of personal
data, bilateral contracts for personal data will be inherently incomplete. This
is increasingly true in a world of big data and sophisticated AI systems, in which
it is much more difficult for individuals to meaningfully consent to future
inferences and uses of their personal data. Saturday, December 07, 2024
Privacy Inserts
Guest Blogger
For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023). Yan Shvartzshnaider As
we become increasingly dependent on online services, we frequently ask, “Is
this service/app safe, privacy-preserving, and secure?” Unfortunately, for the
average consumer, it is difficult to find definitive answers. Modern services
generate, collect, share, and trade vast amounts of information as part of a
complex digital ecosystem of third-party services and actors. What makes the
situation even more complex is that their information-handling practices often
go beyond the immediate needs of their service. This is especially true of
mobile apps, which often build their business models around data collection,
rather than the information services they provide. Friday, December 06, 2024
Taking Power Seriously: The Politics of Privacy
Guest Blogger
For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023).
Alicia Solow-Niederman If
you attend an information privacy law conference and say that privacy is power,
you’re likely to be met with vigorous agreement. Ignacio Cofone’s timely intervention, The
Privacy Fallacy: Harm and Power in the Information Economy, adds to this
scholarly consensus with a distinct spin.
Cofone’s core premise is that privacy law has erroneously looked to
contract law, which provides a mistaken understanding of the power
relationships and interactions between individuals and the entities who trade
in their data. Instead, we ought to look
to tort law. He argues that an approach
grounded in tort law shifts away from privacy law’s fixation on providing
individual choice and individual control rights, and towards a liability regime
that better matches the actual relationships and power dynamics of our
information economy. As Cofone contends, “Privacy law’s challenge
is no longer regulating individual choices, but rather regulating relationships
of power” (p. 10). This is especially
true as artificial intelligence increasingly enables corporations and
governments to process bits of unrelated data and draw inferences about individuals and about unrelated third parties – including in ways that no
one person can reasonably be expected to control. I
commend Cofone for his attention to power and agree that regulating power in
the contemporary information economy requires “meaningful accountability for
the powerful” (p. 165). And I commend
him for moving the conversation beyond acknowledgements that power matters, and
for offering concrete legal hooks that might promote “harm-based privacy
liability” (p. 139). But I also worry
that taking power seriously requires more. In
the remainder of this blog post, I argue that confronting power dynamics in
information privacy requires recognizing the politics of privacy. My approach admittedly zooms out from the
particulars of Cofone’s argument and instead focuses on a single concept: Power. My intent, however, is not to disregard
Cofone’s detailed prescriptions. Rather,
I take this tack because power is a leading player in Cofone’s account: It is not
only part of the title, but also so central to the argument that there are 22
entries for it in the book’s index.
Consider this intervention a “yes, and” addition to Cofone’s argument. Unless and until we accept that a robust,
substantive understanding of privacy entails political tradeoffs, we cannot take
concrete steps to curtail privacy harms.
And especially in an era of increasing partisan polarization, blinking
this reality will water down any effort to redress privacy harms. Thursday, December 05, 2024
Asking the Right Questions: How The Privacy Fallacy Can Guide Health Law Out of the HIPAA Trap
Guest Blogger
For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023). Claudia E. Haupt Ignacio
Cofone’s insightful new book, The Privacy Fallacy: Harm and Power in the
Information Economy, illustrates the importance of asking the right
questions. In his telling, the traditional contracts-based approach to privacy
lacks regulatory salience. First, it overlooks the crucial role of the larger information
ecosystem. By ignoring the structure of hierarchies built into this system, the
traditional approach misses the embeddedness of individual interactions.
Solutions to protect privacy based on this approach will necessarily fall
short, because they erroneously assume discrete individual relationships.
Second, the contract-based model of privacy is based on a range of faulty
assumptions about the way individuals operate within this system. Instead,
Cofone proposes a liability system built on concepts from tort law to remedy
harm. Wednesday, December 04, 2024
Valuing Privacy Harms while Structuring Data Governance
Guest Blogger
For the Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy: Harm and Power in the Information Economy Cambridge University Press (2023). Frank Pasquale Ignacio Cofone’s The
Privacy Fallacy is an important contribution to a rapidly growing
literature on data protection. He critiques over-reliance on contract law in
the governance of data, and the need for tort principles to compensate for (and
deter) privacy harms. He articulates a complex theory of privacy liability that
is capacious enough to address a wide range of harms arising out of data
breaches, misuses of sensitive information, and other wrongs. This post is
largely an appreciation of the book, with a few closing thoughts on two areas
of future work it invites: better valuation of privacy harms, and more robust
structures of data governance. Cofone
sets the stage by arguing that a core legal rationale for the obligations and
opportunities embedded in digital data transactions today is a lie. As he
observes: Privacy consent is
an illusion. Consent-based privacy protections allow corporations to do as they
please with people’s data as long as they’re able to extract superficial
agreement. We routinely experience this (lack of) protection when we mechanically
click “I agree” to websites’ and apps’ terms of service. Individual consent
provisions fail to address the harms produced by aggregated, inferred, and relational
data. They ignore information asymmetry, lack of choices, and unequal bargaining
(66). Far too many contracts “unshackle[]
informational exploitation” rather than offering robust protections. Aware of this,
many voices in privacy law have tried to improve consent—for example, by making
it more informed. Cofone calls these “traditionalist solutions,” and many do
seem obsolete. The overwhelming weight of dark
patterns and manipulation
online, as well as the many offline pressures contributing to social
acceleration, make it exceptionally difficult for any consumer to sagely
weigh the costs and benefits of granting data to one entity and denying it to
another. As Cofone argues, “information overload prevents us from realizing how
much risk our information involves.” Balkinization Symposium on Ignacio Cofone, The Privacy Fallacy
JB
At the conclusion, Ignacio will respond to the commentators. Wednesday, November 27, 2024
"Right in Theory, Wrong in Practice:' Women's Suffrage and the Reconstruction Amendments
Gerard N. Magliocca
This is the title of my new draft paper on SSRN. Here is the Abstract: This Essay explores the most remarkable constitutional argument ever forgotten. In 1871, Representative William Loughridge dissented from a report by the House Judiciary Committee. The Judiciary Committee rejected a petition by Victoria Woodhull claiming that the Fourteenth and Fifteenth Amendments gave women the right to vote. Representative Loughridge replied with a defense of women’s suffrage that was the first official declaration of constitutional sex equality. The Woodhull Petition and the Loughridge Dissent are a treasure trove that should be added to the constitutional canon. Divine Madness
Andrew Koppelman
Tuesday, November 26, 2024
When (and How) Should Courts Use AI?
Andrew Coan
When and How Should Courts Use AI? (coauthored by Harry Surden) The debate between constitutional formalists and realists has largely focused on the kinds of controversial questions that come before the Supreme Court. In such cases, there are nearly always plausible legal arguments on both sides. Constitutional formalists think judges should decide between those arguments on the basis of original public meaning—or, at any rate, on the basis of some criterion other than their own moral and political judgment. Constitutional realists doubt this is possible and, at any rate, think the moral and political judgment of judges is at least some of the time normatively superior to the various criteria defended by formalists. The stakes of this debate are very high because the resolution of such cases by the Supreme Court shapes public policy on vitally important questions for the entire country. In all of these respects, the constitutional questions that come before the Supreme Court are exceptional, rather than normal. The kinds of constitutional questions most often posed in the federal district courts—and quite often in the federal courts of appeals—generally have clear or fairly clear answers that most or all judges applying any mainstream interpretive approach would agree on. The same is true for many, if not most, of the constitutional questions that never make their way to court. Questions arising at the lower levels of the federal judicial system—and completely outside it—also tend to have lower stakes for the legal system as a whole. Decisions of federal district courts have no precedential effect, and the decisions of federal courts of appeals govern particular geographic regions, rather than the whole country. These courts also have far larger caseloads and far fewer resources to devote to the decision of each case than does the Supreme Court. The same is generally true for government officials and government institutions grappling with constitutional questions outside of court. For all of these reasons, the plausibility and attractiveness of using AI to generate clear legal answers with maximum speed and efficiency is significantly greater and less controversial outside the rarefied realm of the Supreme Court. For a fuller explanation, see our new paper, “Artificial Intelligence and Constitutional Interpretation.” Monday, November 25, 2024
Simulating AI Constitutional Interpretation
Andrew Coan
(coauthored by Harry Surden) To investigate how modern AI systems handle constitutional interpretation, we conducted a simple simulation using ChatGPT4 and Claude 3 Opus to decide the questions presented in two highly salient recent Supreme Court decisions, Dobbs v. Jackson Women's Health Organization and Students for Fair Admissions v. Harvard. Our goal was to compare these two tools and test the impact of different framing choices on large language model (LLM) outputs. We also wanted to test the robustness of LLM responses in the face of counterarguments. We began by posing the precise questions presented in Dobbs and Students for Fair Admissions to ChatGPT4 and Claude3Opus and asking them to decide these cases, without specifying an interpretive method. We then proceeded to ask the models, in separate conversations, to decide the same questions under different interpretive approaches, including a relatively spare and neutral description of original public-meaning originalism and a more fulsome and controversial description of that interpretive approach. The results were impressively consistent across both models. When we didn't specify an interpretive method, both AI systems adhered to existing Supreme Court precedent, upholding both abortion rights and affirmative action. When instructed to decide as "liberal living constitutionalists" in the tradition of Justice William Brennan, they reached the same results. But when told to apply originalism, both systems reversed course and voted to overrule those same precedents. Most remarkably, both Claude and ChatGPT reversed themselves in every case when presented with standard counterarguments that any first-year law student could formulate. Experts refer to this phenomenon of LLMs tailoring their outputs to match user preferences as "AI sycophancy," and it raises serious questions about the reliability and malleability of LLMs as constitutional interpreters. More generally, the extent to which human inputs drive LLM outputs suggests that the use of LLMs for constitutional interpretation will implicate substantially the same theoretical issues that today confront human constitutional interpreters. For a fuller explanation, see our new paper, “Artificial Intelligence and Constitutional Interpretation.” Sunday, November 24, 2024
Flat out redistribution of wealth at the Federalist Society
Andrew Koppelman
At a panel at the Federalist Society Lawyers Convention in Washington, DC earlier this month (where I served the familiar role of token lefty), I was hissed by the audience when I called for "flat out redistribution of wealth." Then I got them to abruptly stop hissing, because they hadn't contemplated all the forms of redistribution that they are, in fact, reconciled and even committed to. See https://www.youtube.com/watch?v=WJWdfIHgg8M&t=8491s at 1:39. When I'm in a friendly mood, I say that I speak at the Federalist Society to look for common ground. When I feel less friendly, I say that I go there hoping to make at least some people in the audience feel ashamed of themselves. But these are in some ways equivalent: I can make you ashamed only if you and I hold ourselves accountable to at least some of the same standards. Friday, November 22, 2024
What Loper Bright Illustrates About the Incoherence of the Court's Statutory Interpretation Theory
Abbe Gluck
Loper Bright is a maddening opinion for statutory interpretation afficionados. The Court killed Chevron based on purported theories of statutory-interpretation separation of powers, but those theories do not actually reflect the Court's usual practice, despite the Court's claims. My new piece in the Harvard Journal of Legislation details this argument. Here's an excerpt: The opinion reads like a statutory-interpretation manifesto—and suggests that Chevron is
being overruled for violating its precepts. The Court proclaims that
canons of interpretation must reflect the realities of the congressional
drafting process to effectuate legislative intent. It says canons
are precedents and that canons are legitimate only to the extent they
originated at or before the founding. The Court asserts its view of
statutory meaning is originalist, fixed at the time of enactment. It
argues the Chevron doctrine was uniquely unworkable. Actually,
no. Most of the Court’s interpretive canons do not reflect
congressional drafting practice, and the Court usually does not view
that fact as delegitimizing. Some justices even now expressly disavow
interest in congressional practice for purposes of interpretation. This
Court has said instead that it is determined to displace any inquiry
into what Congress meant or what Congress intended with a new focus on
“ordinary meaning” and ordinary people, rather than congressional
“insiders.” And contra Loper Bright, the Supreme Court creates new canons all the time—Chevron was
not an outlier in that regard. And despite the stare decisis discussion
in the opinion,, the Court does not usually treat canons as precedents
or as common law that can be overruled. As to Chevron’s “unworkability,” as the Court charged, any unworkability associated with Chevron was
due to the Court’s own failure, across all of statutory interpretation,
to create any predictable hierarchy of interpretive rules with stare
decisis effect and the Court’s decisions to make ambiguity trigger most
of the Court’s interpretive doctrines. Chevron shared those
features—a lack of interpretive order and an ambiguity threshold—with
many other interpretive rules, to be sure, but only because Chevron itself famously turned on the “traditional tools of statutory interpretation,” not because of something inherent to Chevron. The Court itself created this unworkable regime for all statutory questions. Chevron’s demise will not cure it. If one takes Loper Bright’s
pronouncements about statutory interpretation seriously, most of the
Court’s interpretive practices are now invalid because they fail the
tests the opinion announces. It does not seem plausible that the Court
intended that kind of ripple effect. A critical part of any
inquiry into statutory interpretation is what the prevailing theory
tells us about the interbranch relationship. Loper Bright
is purportedly an opinion about precisely that, but
the Court’s inconsistent pronouncements obscure,
rather than clarify, any theory of statutory-interpretation separation
of powers. The
stakes are especially high, as Loper
Bright transfers even more interpretive authority to courts. It is more
important than ever that statutory interpretation have a legitimate foundation. Thursday, November 21, 2024
The Law of Conservation of Judgment
Andrew Coan
(coauthored by Harry Surden) At least since Jeremy Bentham, legal formalists in the Anglo-American tradition have dreamed of making the law clearer, more precise, and predictable in its application, with the ultimate goal of limiting or eliminating the human subjectivity of judging. The strongest versions of this "legal formalist" project envisioned a system of laws that could be applied by a machine, with perfect reliability and no trace of personal, political, or other bias—and no exercise of the fallible faculty of human judgment. Enter ChatGPT and other LLMs—a new form of generative artificial intelligence that has received tremendous attention since the public launch of ChatGPT 3.5 in late 2022. In just two short years, these models have improved and proliferated at an astonishing pace. With some important caveats, they are now capable of outperforming most humans at many complex cognitive tasks, including the bar exam and medical licensing exams. But using AI to interpret the Constitution (or decide other legal questions) does not eliminate the need for normative judgment. It simply shifts those judgments to different stages of the decision-making process. Like matter or energy, judgment in constitutional interpretation can be shifted around, dispersed or concentrated. It might be transferred from one decision-maker or one stage in the decision-making process to another. But when it is squeezed out of one part of the interpretive process, it inevitably pops up somewhere else. We call this the law of conservation of judgment. For a fuller explanation, you can read our new paper, “Artificial Intelligence and Constitutional Interpretation.” Wednesday, November 20, 2024
How AI Learned to Talk
Andrew Coan
(coauthored by Harry Surden) There is probably no single definition of artificial intelligence that most scholars would agree to. However, one practically useful definition of AI is "using computers to solve problems, make predictions, answer questions, generate creative output, or make automated decisions or actions, on tasks that when done by people, typically require 'intelligence.'" In this view, we can think of AI in terms of particular tasks that we associate with human intelligence, and whether we are able to fully or partially automate these tasks using computers. Starting in the 1950s and continuing through the 1980s, AI was largely focused upon computer rules and knowledge representation. The goal was to represent different aspects of the world using expert knowledge manually encoded in formal programming languages that computers could easily process. For example, in medicine, such systems aimed to codify the diagnostic knowledge and processes of doctors into formal computer rules, allowing computers to sometimes deduce non-obvious diagnoses. Although this early symbolic AI approach achieved some successes, its limitations became quickly apparent: hand-coded expert rules about law, medicine, or other phenomena were often "brittle" in the sense that they couldn't handle exceptions, non-standard "hybrid" scenarios, discretion, or nuances. A new AI era began in November 2022 with the release of ChatGPT 3.5 by OpenAI. Much to the surprise of most AI researchers, this was the first AI system that could sensibly react to and analyze just about any textual input or document. ChatGPT was an example of a large language model (LLM), a type of AI natural language processing system that was designed to generate coherent, human-like text. Through "training" on billions of pages of previously written human pages available on the internet and elsewhere—including various legal documents such as federal and state statutes, court decisions, contracts on sites like EDGAR, and legal motions—these AI models learned to understand and generate language in a way that closely simulated human-like writing. To be clear, ChatGPT 3.5 was not always accurate in its responses or analysis—it suffered from well-known accuracy problems and a tendency to make up facts—a phenomenon known as hallucination. But factual accuracy was not even the biggest technical hurdle for such AI systems prior to that time. Rather, going back to November 2022, LLMs prior to ChatGPT had much more severe limitations—these systems could not even respond sensibly to arbitrary inputs that were too far outside of their training. So, even though ChatGPT made factual and reasoning errors, what astonished AI researchers was that it could analyze and respond to arbitrary text of any kind sensibly at all. Today, judges and others can use AI models to seek legal analysis and answers about constitutional and statutory interpretation, case law, and nearly any other legal question. Modern AI systems usually respond with coherent, well-reasoned, and persuasive text. We explore the implications in our new article, "Artificial Intelligence and Constitutional Interpretation." Tuesday, November 19, 2024
Gun Regulation When the Fourteenth Amendment was Ratified
Mark Graber
Originalism as practiced by historians, who by "original" mean "authentic," yields different results than originalism as practiced by the Roberts Court, who by "original" seem to mean "novel." Consider the right to bear arms. The July 7, 1866, edition of Harper's Weekly, the leading Republican/Union weekly of the Civil War/Reconstruction Era, set out the basic principle underlying gun regulation at the time when the Fourteenth Amendment had just been sent to the states for ratification. The essay, "The Excise Law" relied heavily on what the author regarding as broadly shared understandings about dangerous weapons when explaining why alcohol could be regulated on the same basis as guns. The basic principle was “The object of laws is public order, not private
morality.” This principle covered all arms. Harper's Weekly opined, Society is of opinion that gunpowder is so dangerous
a commodity that its storage and sale must be regulated by law. It is idle to say that any man has the right
to make gunpowder and sell it, and that society has nothing to do with it. Society has the right of defending its order
and safety, and must judge when they are threatened." Guns as well as gunpowder were governed by this standard. The essay continued, "The Excise Law" articulated basic principles of nineteenth century constitutional law (the best analysis is Howard Gillman's THE CONSTITUTION BESIEGED). No one had a right to threaten the public safety. When the public safety was threatened, government had the power to regulate. The only substantial limit on regulation was that if the regulation distinguished between classes of people, the distinction had to be based on real differences between those classes and advance the public interest. New York could ban children from owing revolvers, but not after the Thirteenth Amendment, African-Americans. The originalists on the Supreme Court offer an original reading of this history, at least if original is understood as meaning "novel" rather than "authentic." The justices in New York Rifle and Pistol Association, Inc v. Bruen (2022) and United States v. Rahimi (2024) insist that contemporary regulations are constitutional only Americans in 1791 and, maybe, 1866 regulated the arms in question or a closely analogous regulation was in place in 1791 or, maybe, 1866, no matter how dangerous the arms are recognized to be in 2024. Republican/Unionists would not have recognized this original interpretation of the constitutional right to bear arms. If the government thought a weapon, a drink, or anything else, threatened the public, government could regulate. Perhaps good policy reasons nevertheless exist for recognizing a constitutional right to dangerous weapons that were not thought dangerous in 1866, but such arguments did not occur to Harper's Weekly or, seemingly, other Republicans when the Reconstruction Amendments were framed.
The Procedural Turn’s Faith in Elite Judgment
Guest Blogger
For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023). Aziz Rana Kunal
Parker’s The Turn to Process is a wonderful reconstruction of
intellectual life in the United States over the twentieth century. It explores how scholars across fields of
law, political science, and economics confronted the modernist crisis of
meaning that shaped Euro-American societies.
In particular, the late 1800s and early 1900s saw a breakdown among
intellectual and political classes in faith in the underlying foundations of
collective life—judgments about the common good, moral certainty, and shared
substantive truths. In this context,
scholars increasingly shifted toward an embrace of method as a way both of
making sense of social experience and of imagining tools for restitching the
social fabric. As a result, they also
re-grounded the legitimacy of their own fields—whether law, political science,
or economics—on procedural techniques.
These techniques allowed the scholar to claim an expertise relevant for
the ordering of social life regardless of the fracturing of faith in substantive
truths. Sunday, November 17, 2024
From Stable Foundations to Dynamic Processes (and Back?)
Guest Blogger
For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023). Ajay K. Mehrotra
Let me begin with my thanks to Jack Balkin for hosting this
online symposium and for inviting me – long time Balkinization reader, first
time contributor – to participate in this discussion. Thanks, of course, also to Kunal Parker for
writing such an important and stimulating book. I had the good fortune of reviewing portions of The Turn
to Process when Kunal presented an overview of the book and the law chapter
at an American Bar Foundation/Northwestern University Legal History Colloquium
several years ago. At that event, many
of the participating faculty and graduate/law students were excited to read
such a capacious history of modern American intellectual life. Although some found the workshop paper a bit
dense, everyone agreed that Kunal had embarked on a bold and ambitious research
project. The published version of The Turn to Process
validates those earlier sentiments.
Kunal has completed a stunning and sweeping history of how a certain
segment of American legal, political, and economic thinkers reoriented their
respective fields away from stable notions of “truths, ends, and foundations”
toward dynamic “methods, techniques, and processes.” In doing so, he makes
several contributions to the existing literature by complementing and at times
challenging some of the most canonical works in American intellectual history,
especially by uncovering the multiple meanings of “the turn to process” and by
re-periodizing our conventional understanding of this otherwise familiar story
about change over time. Friday, November 15, 2024
Historicizing History?
Guest Blogger
For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023). Paul Gowder
It surprised me that the most interesting part of The
Turn to Process was the conclusion, in which Parker turns his gaze from
law, political science, and economics to history itself—and in effect
historicizes the practice of historicizing. By “the practice of historicizing” I mean what Parker
vividly describes as the process where historians try to undermine ideas by
placing them in social context. In his apt words: “As historians place object
after object in a social-historical context, they render such objects
‘contingent,’ [and] weaken or impair their claims over us[.]” For those of us
in other disciplines (and especially the normative and conceptual ones,
including law, who lack ready resort to the self-defensive tool of “we’re just
doing empirical observation”) the process of experiencing core ideas in one’s
field getting subjected to this process of historicizing can be experienced as
an annoying bit of disciplinary imperialism, and Parker captures exactly why in
his discussion of the historian’s disregard of the truth claims of other
fields. Thursday, November 14, 2024
The Turn to Process in Comparative Context
Guest Blogger
For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023). Amalia D. Kessler
Kunal Parker’s The Turn to
Process is a sweeping intellectual history of great ambition. Spanning the
period between 1870 and 1970, the book draws on a remarkable depth of erudition
to argue that American thought leaders across the domains of law, politics, and
economics responded to the challenges of modernism by embracing methods,
procedures, and processes. By converting substantive truths into procedural
techniques, these scholars were able to establish forms of disciplinary
authority that were immune to the corrosive effects of the modernist
predilection for subjecting truth to historical and psychological critique. Grand
in scope, Parker’s book also shines in its illuminating close readings, which bring
to light the surprising parallels between seemingly quite distinct textual
traditions. In all these respects, the Turn to Process is an important
contribution that promises significantly to reshape the boundaries of scholarly
debate across a range of disciplines. Artificial Intelligence and Constitutional Interpretation
Andrew Coan
Harry Surden and I have posted a new paper to SSRN titled "Artificial Intelligence and Constitutional Interpretation." Here is the abstract: This Article examines the potential use of large language models (LLMs) like ChatGPT in constitutional interpretation. LLMs are extremely powerful tools, with significant potential to improve the quality and efficiency of constitutional analysis. But their outputs are highly sensitive to variations in prompts and counterarguments, illustrating the importance of human framing choices. As a result, using LLMs for constitutional interpretation implicates substantially the same theoretical issues that confront human interpreters. Two key implications emerge: First, it is crucial to attend carefully to particular use cases and institutional contexts. Relatedly, judges and lawyers must develop "AI literacy" to use LLMs responsibly. Second, there is no avoiding the burdens of judgment. For any given task, LLMs may be better or worse than humans, but the choice of whether and how to use them is itself a judgment requiring normative justification. Wednesday, November 13, 2024
What Law Schools Can Do, Part I: Teach Persuasion
David Super
The great majority
of legal academics are appalled at the nation’s verdict last week on former
President Donald Trump and the Republican Party. Despair is natural, and the urge to withdraw
is all too tempting. Many of us enjoy
sufficient privilege that we have the choice to abandon meaningful engagement
with the nation’s problems and scholarly attention to the world as it is. Tens of millions of people who stand to
suffer under the new regime, however, lack any meaningful exit option. For their sake,
but also for our own, I hope we will take this as a signal to engage more, not
less. As it happens, law schools and
legal academics are well-positioned to make crucial contributions to advancing
justice in this country. Moreover, much
of what our country needs from us is entirely consistent with our roles as
legal educators and with norms that law schools should serve, and advance
inquiry by, faculty and students of all persuasions. This is the first of a series of posts
suggesting ways in which law teachers and law schools can effectively respond
to the current crisis. The Unbearable Lightness of Process in the Empire of Substance
Guest Blogger
For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023). John Fabian Witt In one
sense, the triumph of the procedural in twentieth-century legal theory is a
puzzling phenomenon. In 1980, at what
was perhaps the high point for the so-called process school of constitutional
law led by John Hart Ely, critics like the liberal Laurence Tribe and the
leftist Mark Tushnet objected that process stories in legal theory obscured underlying
substantive commitments. Value-free
adjudication based in process, to use Tushnet’s formulation, was impossible;
process-perfecting theories, in Tribe’s words, could not banish the fights over
substance that had brought them into being.
After all, what could explain the selection of one or another process
other than the pursuit of some substantive social project?[1] Balkinization Symposium on Kunal Parker, The Turn to Process
Guest Blogger
At the conclusion, Kunal will respond to the commentators. Tuesday, November 12, 2024
Trump’s aspiration isn’t Nazi Germany, it’s feudal Germany
Andrew Koppelman
President-elect Donald Trump’s victory has revived the accusation that he is a fascist. Some even fear that he will try to make himself dictator for life. That notion misunderstands the danger Trump presents. He isn’t aiming or likely to recreate Nazi Germany. Medieval Germany is closer: a collection of unaccountable fiefdoms in which local barons are free to abuse their subjects at will. I elaborate in a new column at The Hill. Wednesday, November 06, 2024
The Brits Let Me Down
Bruce Ackerman
The Brits decided that the American election wasn't sufficiently interesting to warrant around-the-clock coverage -- so the decided to end their broadcast at the stroke of midnight. Since I was supposed to join the conversation at 12:20, they responded to my clicks with an apology -- which I extend to anybody who searched for my comments and found a void. Tuesday, November 05, 2024
My Interview on Times Radio
Guest Blogger
Bruce Ackerman I’ll be live on air with @CalumAM on @TimesRadio at 12:20am ET reacting to the results from the US election as they roll in… Tune in at times.radio and on YouTube where you can watch all the action too.. https://www.youtube.com/@ListenToTimesRadio Shifting Standards for What Constitutes a Dispute
David Super
As we enter a day
of suspense, likely followed by many more of disputes should former President
Trump lose, I am struck by the divergence in our nation’s standards for what
constitutes an adjudicable dispute. Our
judiciary, long led and now dominated by conservatives, has been steadily
narrowing what claims may receive full consideration. By contrast, the former President and his
supporters, also wanting to be seen as conservatives, adamantly insist on
greatly broadening the definition of a legitimate dispute. Friday, November 01, 2024
Just Security pod on historical threats to democracy and January 6
Corey Brettschneider
I spoke with Tom Joscelyn, a principal author of the House January 6 Report, on the Just Security Podcast about my new book, The Presidents and the People. We talk about historical threats to democracy as well as Trump's attempted self coup. The link is here: https://www.justsecurity.org/104473/presidents-people-book-podcast/ --------------- Corey Brettschneider, Brown University Thursday, October 31, 2024
The crumbly philosophical foundations of Trumpism
Andrew Koppelman
To the extent that Trumpism has any intellectual basis, it's that articulated by J.D. Vance, and Vance's principal philosophical guru appears to be Patrick Deneen. I explain what's wrong with Deneen, philosophically and at the policy level, here. Tuesday, October 29, 2024
Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism-- Collected Posts
JB
Here are the collected posts for our Balkinization symposium on Jeremy Kessler's forthcoming article, Law and Historical Materialism. 1. Jack Balkin, Introduction to the Symposium 2. Sam Moyn, Marxism as a Rallying Cry 3. Paul Gowder, In Praise of Humble Social Theory 4. Brian Leiter, Some Notes on Historical Materialism, Naturalism and Legal Theory, Part I 5. Brian Leiter, Some Notes on Historical Materialism, Naturalism and Legal Theory, Part II 6. Matthew Dimick, Linking Capitalism and Legal Change: Function versus Form 7. Yochai Benkler, The transhistorical dormitive principle at its foundation makes MHMAL the wrong social theory for LPE 8. Eva Nanopoulos, The Minimalism of the Minimalist Historical Materialist Approach to Law (MHMAL): A (Puzzled) Marxist View 9. Talha Syed, Law and the Critique of Political Economy 10. Jeremy Kessler, Law and Historical Materialism: A Reply to Critics – Part I 11. Jeremy Kessler, Law and Historical Materialism: A Reply to Critics – Part II Monday, October 28, 2024
In praise of the Washington Post’s cowardice
Andrew Koppelman
The Washington Post deserves our gratitude for its craven, contemptible decision not to endorse any presidential candidate. I explain in a new column at The Hill. Wednesday, October 23, 2024
Law and Historical Materialism: A Reply to Critics – Part II
Guest Blogger
For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism. Jeremy Kessler In Part I of this Reply, I
addressed objections to the naturalistic and transhistorical character of the
minimal historical materialist account of law (“MHMAL”). MHMAL is naturalistic in
that it: (a) takes the relationship between human and non-human nature to
provide the ultimate, explanatory foundation of law and legal development; and
(b) assumes that the causal structure of this relationship is uniquely
accessible to empirical scientific inquiry. MHMAL is
transhistorical in that it seeks to explain law and legal development by
reference to individual and collective human propensities that are effectively invariant
across historical epochs. Part II of this Reply considers how these commitments
shape MHMAL’s understanding of the place of class struggle and ideology in the
explanation of law and legal development. Several symposium
contributors take MHMAL to task for marginalizing class struggle[1]
and ideology[2]
in its explanatory scheme. Although Law and Historical Materialism addressed
both phenomena, it gave pride of place to others: on the one hand, the primacy
of the development of the productive forces in explaining law and legal
development; on the other hand, the potential role that “nonfunctional
determinations” – such as aspects of culture and environment unrelated to a
particular development of the productive forces – might play in such
explanation. I am more confident about the explanatory primacy of the
productive forces than about MHMAL’s openness to so-called nonfunctional
determinations. But I will try to clarify why I think that the historical
materialist explanation of law and legal development might be stuck with both,
even as it accords significant roles to class struggle and ideology as
well. Tuesday, October 22, 2024
Taking "Offers to Pay for Registering" Seriously (Probably a Mistake)
Mark Tushnet
Perhaps mistakenly (because almost certainly the
pro-Musk/Trump side isn’t really concerned about legal details), in trying to
think about the X flap over Musk’s lottery offer, I began to wonder about the
possibility of a difference between lay and lawyers’ ways of interpreting
statutes. Here, with excisions, is the relevant language: 52 U.S.C. 10307(c):
“Whoever knowingly or willfully … pays or offers to pay … for registration to
vote or for voting shall be fined not more than $10,000 or imprisoned not more
than five years, or both…” I’m pretty sure that the “controversy” isn’t over
whether giving someone a ticket to a lottery counts as “payment”: in lawyers’ terms,
and probably in lay terms, it’s something of value (you could sell your lottery
ticket to another sucker and buy a candybar). So, the “controversy” is over the meaning of the words “for”
and “offer.” “For” first: Suppose you announce that starting tomorrow you’ll
pay any registered voter $5. The day after tomorrow someone comes up to you and
shows you a voter registration card dated tomorrow (that is, after the voter
learned of your offer). You give her $5. Have you paid her “for” registering? I’m
pretty sure that most lawyers and lay people would say, “Yes.” The next person in line shows you a voter registration card
dated three years ago (and still valid). You give her $5. Have you paid her “for”
registering? Or, have you paid her for having registered? And is paying someone
for having registered where the person had no expectation of payment at the
time of registration covered by the statute, that is, the same thing as paying
someone for registering after knowing of the offer of payment? If there’s a
good faith disagreement here, it’s that many lawyers are comfortable in saying
that paying someone for having registered, without expectation of payment, is
covered by the statute and many lay readers think the difference between having
registered without such expectation and registering after learning of the offer
matters. Does “offer” matter? Suppose Musk says to the person
who registered three years ago, “Sorry, you’re not covered by my offer,” and
gives $5 to the other person. I’m pretty sure that most lawyers and lay people
would say that Musk construed his words as an “offer to pay” people “for” registering. What if he said
to the one who registered after learning of the offer, “Sorry, you’re not
covered by my offer.” I’m reasonably confident, though not quite sure, that most
lawyers and lay people would say that he hadn’t offered to pay people for
registering. That is, in this context both groups would distinguish between “for
registering” and “for having registered.” Finally, what if Musk says, “I don’t care when you
registered, you each get $5.” Was his initial offer, which didn’t specify when
the registration occurred, an offer to pay for registering? My guess is that
this is where the lawyer-lay divide kicks in (if it does in good faith). Many
lawyers would say, “Of course this is an offer to pay for registering—at least as
long as there’s even one person who registers after learning of the offer and
seeks payment. And (if it matters) we think it probably would be OK for the
burden to be placed on the defendant to show that no such person existed.” If there
is good-faith lay disagreement, it’s because lay readers think that you’re not offering
to pay someone for registering if (lots of) people fall within the offer’s
coverage even though they registered before the offer was made.
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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). 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(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 |