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 Balkinization Symposium on Aileen Kavanagh, The Collaborative Constitution-- Collected Posts Imagining America’s Collaborative Constitution: Part II Imagining America’s Collaborative Constitution: Part I Law and the Critique of Political Economy The Minimalism of the Minimalist Historical Materialist Approach to Law (MHMAL): A (Puzzled) Marxist View The transhistorical dormitive principle at its foundation makes MHMAL the wrong social theory for LPE A Vivid Illustration of the Impact of the Roberts Court's Radical New "Unitary Executive" Doctrine Linking Capitalism and Legal Change: Function versus Form Some Notes on Historical Materialism, Naturalism and Legal Theory, Part II Some Notes on Historical Materialism, Naturalism and Legal Theory, Part I In Praise of Humble Social Theory Marxism as a Rallying Cry Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism We Are All Cafeteria Originalists Now (and We Always Have Been) Collaboration “Devolved” Balkinization Symposium on Neil Siegel, The Collective-Action Constitution-- Collected Posts The Preconditions for Collaborative Constitutionalism 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
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Monday, September 30, 2024
Balkinization Symposium on Aileen Kavanagh, The Collaborative Constitution-- Collected Posts
JB
2. Stephen Gardbaum, Collaborative and Abusive Constitutionalism 3. Mark Tushnet, Constitutional Collaboration and Constitutional Showdowns 4. Lawrence B. Solum, The Preconditions for Collaborative Constitutionalism 5. Erin F. Delaney, Collaboration “Devolved” 6. Aileen Kavanagh, Imagining America’s Collaborative Constitution: Part I Aileen Kavanagh, Imagining America’s Collaborative Constitution: Part II
Saturday, September 28, 2024
Imagining America’s Collaborative Constitution: Part II
Guest Blogger
For the Balkinization symposium on Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2023). Aileen Kavanagh Of Norms and Forms As
Professor
Stephen Gardbaum rightly observes, The Collaborative Constitution emphasises
the fundamental importance of unwritten norms in all constitutional
systems. Even in a country with a
revered constitutional text like the United States, the normative force of that
text depends crucially on whether the key constitutional actors treat that text
as normative and binding on their behaviour. This is the signature insight of H.L.A.
Hart that all law bottoms out in non-law (i.e. in social norms), and at
that level what matters most is whether the people in power commit to the
constitutional rules of the game - aptly described by Josh
Chafetz as ‘the ethics of constitutional commitment’. Absent that commitment, the written text
becomes a hollow hope – a ‘parchment barrier’ devoid of authority and
force. Beneath the constitutional forms
lie norms; and beneath the constitutional architecture lie attitudes. Instead of embracing the formal idea of ‘constitution
as architecture’, my book explores the deeper terrain of ‘constitutionalism
as mindset’. Gardbaum
poses two key questions about this analysis.
First, if these norms are as foundational to all constitutional
systems, does this flatten out the differences between systems and make my
account ‘oblivious to context’? Second,
does my analysis overlook the consequential – and variable - impact of
constitutional design on how a system works?
In emphasising norms, do I underestimate forms? My
answer to both of those questions is ‘no’.
In drawing attention to ‘the ubiquity of
unwritten constitutionalism’, I do not underestimate the valence and
variability of constitutional design. As
Gardbaum observes, constitutional design creates different basic structures of
democratic politics. Fundamental design
choices – such as whether there is a parliamentary or presidential system -
makes a big difference to how institutions act and interact in a structured
constitutional scheme. I agree with
Gardbaum on this. Design matters - and design
differs - with myriad consequential effects for the success and sustainability
of any constitutional system. Friday, September 27, 2024
Imagining America’s Collaborative Constitution: Part I
Guest Blogger
For the Balkinization symposium on Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2023). Aileen Kavanagh In The
Collaborative Constitution, I argue that constitutional
government is a collaborative enterprise between all three branches of
government, where each branch has a distinct but complementary role to play,
whilst working together in a spirit of comity, civility, and collaboration. Rejecting the binary options of either
legislative or judicial supremacy, The Collaborative Constitution envisages
constitutionalism as a shared responsibility between multiple
institutions. On this vision,
protecting the Constitution is neither the solitary domain of a Herculean
super-judge. Nor is it the dignified
pronouncements of an enlightened legislature.
Instead, it is a complex, dynamic, and collaborative enterprise, where
each branch has a valuable – though limited – role to play in an
institutionally diverse constitutional order.
The branches must work together, whilst holding each other to
constitutional account. Envisaging
constitutional government as a system of ‘separated institutions sharing
powers’, my book strives to make sense of the shared responsibility, uncovering
the principled foundations and practical dynamics of collaborative
constitutionalism at work. The resulting
picture is one of diverse institutions interacting, counteracting, and
collaborating in a common project of governance in mutually respectful and
mutually responsive ways. Thursday, September 26, 2024
Law and the Critique of Political Economy
Guest Blogger
For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism. Talha Syed Jeremy Kessler’s “Law and Historical
Materialism” is bracing. Bracing in its unapologetic embrace of strong
explanatory ambitions for any theory of law, one that must be anchored in a
broader theory of society (and even of humanity’s interaction with the natural
world). And bracing also in its no-pulled-punches approach to articulating
dissatisfaction with existing legal theories, critical legal studies (CLS)
principally among them. Sharing both commitments—not only in the
content of the views, but also in the form of their unvarnished articulation—I will
use this platform of agreement as the basis for launching an unvarnished
critique of the alternative theory he offers. Wednesday, September 25, 2024
The Minimalism of the Minimalist Historical Materialist Approach to Law (MHMAL): A (Puzzled) Marxist View
Guest Blogger
For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism. Eva Nanopoulos For all the baggage that the label
carries, I would today self-identify as a Marxist. I was therefore very excited
to be approached to contribute to a symposium on Kessler’s ‘Law and Historical
Materialism’, given that historical materialism is usually understood to refer
to Marx’s theory of historical change, even though he himself did not use the
term. As I was reading, however, rather
than finding myself in familiar terrain, I began to feel a little puzzled. My puzzlement stemmed from three dimensions of Kessler’s intervention: a geographical one
– Kessler is intervening in what is essentially a US debate; a political one –
Kessler is writing for ‘left-leaning legal scholars’; and a theorical one –
Kessler is seeking to develop what he calls a ‘minimalist historical
materialist approach to law’ (MHMAL) as the best way forward for the left as
against Critical Legal Studies (CLS). My reaction may have had some roots
in my personal experience: I am based in the UK; I first encountered Marxism through
my political engagement – my investment in developing Marxist critiques of law
and Marxist legal theory came later, as one of the contributions I could hope
to make to the wider Marxist project as a legal academic; and by the Marxist
project I understood not only the principles of historical materialism as a
theory of history, but Marx’s critique of political economy (i.e. of
capitalism) and his revolutionary project. But they relate to and reveal
several deeper problems about MHMAL. Each of these dimensions of MHMAL
correspond to three types of minimalism – geographical, political and
theoretical from which, I argue, MHMAL suffers. I cannot elaborate on those in
detail in an informal blog post such as this. But I aim to show that, from a
Marxist perspective, MHMAL’s minimalism not only casts doubt about its
characterisation as historical materialist, but also as the best way forward
for the development of a radical legal theory on its own terms. Tuesday, September 24, 2024
The transhistorical dormitive principle at its foundation makes MHMAL the wrong social theory for LPE
Guest Blogger
For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism. Yochai Benkler Jeremy
Kessler has done the LPE movement a favor by producing such a lucid, clearly
defined theory of historical materialism for legal analysis. I reject his theory
from the ground up and think it must not be the theoretical path forward for LPE.
But the article is a model of clear definitions and explicit statements of the
kind we all need if we are to develop a social theory of law in capitalism that
we can all use as a common framework. Let
me start where we agree. Monday, September 23, 2024
A Vivid Illustration of the Impact of the Roberts Court's Radical New "Unitary Executive" Doctrine
Marty Lederman
Linking Capitalism and Legal Change: Function versus Form
Guest Blogger
Saturday, September 21, 2024
Some Notes on Historical Materialism, Naturalism and Legal Theory, Part II
Guest Blogger
For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism. Brian Leiter In this second post on Professor
Kessler’s “Law and Historical Materialism,” I comment critically on his
understanding of naturalism, of the relationship between historical materialism
(hereafter HM) and naturalism, and, briefly, on the situating of his project in
relation to what he calls “left-leaning legal thought.” Kessler begins his discussion of
naturalism by claiming that it is an “advantage” of his version of HM that it
is consistent “with the naturalistic worldview that undergirds the policy
commitments of left-leaning legal scholars” (39). How is this an advantage? What “left-leaning legal scholars” think is
of no scholarly interest; only what is true or at least justified matters. That would certainly have been Marx’s
view. I understand Kessler is trying to
offer a kind of “internal” argument to appeal to his political allies on the
left. That is fine, but in my view,
beneath the intellectual seriousness of his project and a distraction from it. Friday, September 20, 2024
Some Notes on Historical Materialism, Naturalism and Legal Theory, Part I
Guest Blogger
For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism. Brian Leiter I very
much appreciate Jeremy Kessler’s careful and well-informed exposition of “Law
and Historical Materialism,” and I also appreciate his lucid attention to Pashukanis,
who may not have been right, but who is worth revisiting as an intellectually
serious form of genuinely left legal theory (see esp. 12-14 of Kessler’s essay for
an excellent set of questions that Pashukanis’s analysis invites). In this first post, I will focus primarily on
some technical details about Professor Kessler’s understanding of historical
materialism (hereafter HM), and functional explanation in particular. In a second post, I will discuss his
treatment of naturalism, which seems to me more problematic. I will also say a bit in that second post
about Kessler’s framing of his project in relation to Critical Legal Studies
and other “left-leaning legal thought” as he calls it. Thursday, September 19, 2024
In Praise of Humble Social Theory
Guest Blogger
For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism. Paul Gowder I have a slightly embarrassing confession: I’ve always
been skeptical of Big Social Theory (BST)—or, to be more accurate, ambitious
Big Social Theory (aBST). It has always seemed to me that one of the major
problems with the academic left is its attraction to huge theoretical edifices
like historical materialism that purport to explain everything (no matter how
implausible such a creature might seem a priori). While that might sound like a prelude to a complaint about
Law and Historical Materialism, it’s actually praise: Jeremy Kessler’s careful
case for the superiority of historical materialism over CLS seems to me like an
excellent (if somewhat implicit) demonstration of a sensible role for BST, both
in the law and outside of it, but only so long as it is kept humble rather than
ambitious. Wednesday, September 18, 2024
Marxism as a Rallying Cry
Guest Blogger
For the Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism. Samuel Moyn
If I knew my tombstone would record that I had inadvertently
provoked Jeremy Kessler to attempt to bring Marxism into American legal theory
again, I could die a happy man. Because it is already such a privilege that Jeremy took my
own new essay
as the prime target in his masterful new piece, I mainly want to thank him. Jeremy’s
intervention is characteristically rich and stimulating. The fact that it
exists at all portends an exciting new phase for legal theory. Still, I cannot
help offering a few modest counterpoints. Marxism hasn’t ever figured all that prominently in the
history of American legal thought. If he is successful, Jeremy could “normalize”
our scholarship, so that conversations in the legal academy would not remain so
out of step with the contemporary renaissance of Marxist perspectives elsewhere
in the university and beyond it (and in the legal theory of some other
countries). Given his own premises, Jeremy might suspect there are objective
constraints on such normalization. But it is still possible that his essay will
have the salutary effect of prompting more teaching about Karl Marx and Marxism
in America, at least up to a point, which other capitalist societies have
permitted. And that is very good news. But what is “Marxism” anyway? Balkinization Symposium on Jeremy Kessler, Law and Historical Materialism
JB
This week at Balkinization we are hosting a discussion of Jeremy Kessler's forthcoming article, Law and Historical Materialism. Our terrific group of participants include Yochai Benkler (Harvard), Matthew Dimick (Buffalo), Paul Gowder (Northwestern), Brian Leiter (Chicago), Samuel Moyn (Yale), Eva Nanopoulos (Queen Mary - University of London), and Talha Syed (Berkeley). At the conclusion, Jeremy will respond to the commentators. Monday, September 16, 2024
We Are All Cafeteria Originalists Now (and We Always Have Been)
JB
I have posted a draft of my latest article, We Are All Cafeteria Originalists Now (and We Always Have Been), on SSRN. Here is the abstract. Americans are “cafeteria originalists." They pick and choose when to follow the views of the founders, framers, or adopters (as they understand them) and often artfully re-characterize these views to support contemporary political and legal arguments. Even self-described originalist judges are originalist only when they want to be. Cafeteria originalism is not a pathology or a falling away from a pure or correct version of constitutional interpretation. Instead, the persistence of cafeteria originalism in American constitutional culture reveals the deep rhetorical structure of American constitutional law. That is why non-originalists make originalist arguments all the time without thereby being converted to the originalist creed. And that is why conservative originalists have always had to leaven their theories with qualifications, exceptions, and epicycles. Cafeteria originalism is our law. The most plausible versions of interpretive theory — including the most plausible versions of originalism — make their peace with cafeteria originalism; indeed, they enjoy the smorgasbord. Cafeteria originalism has multiple uses in American legal thought. It offers a powerful rhetoric for legal reform. It clears the ground for new doctrinal development. And it helps people express their contemporary values through appeals to constitutional memory. Interpretive theories lie downstream from constitutional culture. Within that culture, originalist arguments are simply one element of a larger collection of rhetorical strategies. This produces the effect called cafeteria originalism. From the standpoint of conservative originalism, this fact is a problem. But from the standpoint of American constitutional culture, it is perfectly normal. It is just what we do around here. Collaboration “Devolved”
Guest Blogger
For the Balkinization symposium on Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2023). Erin F. Delaney Aileen Kavanagh has written a book that is beautiful in
both words and in sentiment. She deftly
paints a vision of the separation of powers that goes “beyond the forms to
norms” (p. 261) and privileges “inter-institution comity [or] ‘that respect
which one great organ of the State owes to another’” (p. 98). She has a normative and a positive
claim: In her view, the “long-term
working relationship” (p. 102) among the three branches of government ought
to be based on mutual self-restraint and mutual support, focused on reciprocity
and reputation. And Kavanagh argues, in
the United Kingdom, that is the nature of the constitution. Balkinization Symposium on Neil Siegel, The Collective-Action Constitution-- Collected Posts
JB
Here are the collected posts for our Balkinization symposium on Neil Siegel, The Collective-Action Constitution (Oxford University Press, 2024). 1. Jack Balkin, Introduction to the Symposium 2. Tara Leigh Grove, Restoring Faith in Congress 3. Jack Balkin, The Collective Action Constitution(s) 4. Richard M. Re, What is the “Collective-Action Constitution”? 5. Jessica Bulman-Pozen, The Administrative State and the Collective-Action Constitution 6. David A. Strauss, The Collective Action Constitution and the Conscientious Legislator 7. Guy-Uriel Charles, Democracy As Collective Action 8. Erin F. Delaney, The Collective-Action Constitution and Comparative Federalism 9. Neil Siegel, The Collective-Action Constitution and the Community of Legal Scholars
Sunday, September 15, 2024
The Preconditions for Collaborative Constitutionalism
Guest Blogger
For the Balkinization symposium on Aileen Kavanagh, The Collaborative Constitution (Cambridge University Press, 2023). Lawrence B. Solum Aileen Kavanagh’s important book, The Collaborative Constitution, offers a
deep, insightful, and optimistic analysis of constitutional theory that aims to
displace the conventional narrative that pits judicial supremacy and the
institution of judicial review against a form of legislative supremacy that
would take constitutions away from the courts. Kavanagh’s alternative is a
collaborative constitution—in which the constitutional order is structured via
interactions between judicial, legislative, and executive institutions and
actors. Kavanagh mostly explores these themes in the context of the United
Kingdom with less extensive discussion of Canada and other commonwealth
systems. Although the theoretical
chapters in the beginning of the book are framed generally, Kavanagh chose not
to engage in in-depth exploration of the implications of her theoretical
framework for other constitutional orders, including that of the United States.
A wise choice, given the effort required to apply a rich constitutional theory
to even a single constitutional system. 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. Carol Nackenoff, Move Over, Grant McConnell 8. Timothy P.R. Weaver, The Meanings and Pathways of American Political Development 9. Sarah Staszak, Debt Relief and the Multifaceted American State 10. Stephan Stoller, Ideas and Interest: or Why the Have-Nots Used to Come Out Ahead 11. 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.
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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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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 |