Balkinization   |
Balkinization
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 LevinsonFest on Wrestling with Religious Diversity -- Collected Posts Wrestling with Diversity in the Contemporary World Can We All Get Along? A Tribute and a Question Climate change and the Supreme Court’s version of police abolitionism Wrestling with Religious Opposition to Leviathan E Unum Pluribus: Comparative Textualism & Constitutional Faiths Wrestling with Religious Diversification Stiff Joints Don’t Bend Anymore The Parliamentarian’s Curious Definition of “Merely Incidental”
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Sunday, August 07, 2022
LevinsonFest on Wrestling with Religious Diversity -- Collected Posts
Guest Blogger
Ashley Moran Below are the collected posts on the LevinsonFest 2022 roundtable constitutional faith
and veneration: 1. Ashley Moran, LevinsonFest on Wrestling
with Religious Diversity 2. John Adenitire, Wrestling with
Religion in Law 3. Douglas Laycock, On Friendship,
Tolerance, and Religious Liberty 4. Carol Nackenoff, Stiff Joints Don’t
Bend Anymore 5. Jaclyn Neo, Wrestling
with Religious Diversification 6. Intisar Rabb, E Unum Pluribus: Comparative
Textualism & Constitutional Faiths 7. Mark Scarberry, Wrestling with
Religious Opposition to Leviathan 8. Nomi Stolzenberg, Can We All Get Along? A Tribute and a Question 9. Sanford Levinson, Wrestling with
Diversity in the Contemporary World Ashley Moran is a Postdoctoral Fellow with the Comparative
Constitutions Project and Distinguished Scholar with UT’s Robert Strauss Center
for International Security and Law. You can contact her at
ashleymoran@utexas.edu. Friday, August 05, 2022
Wrestling with Diversity in the Contemporary World
Guest Blogger
Sanford Levinson This post was prepared for a
roundtable on Wrestling with Religious
Diversity, convened as part of LevinsonFest 2022. I begin by expressing
my deepest gratitude first to Richard Albert and Ashley Moran for organizing
this event and to the irreplaceable Trish Do for actually making it happen,
technologically. And, of course, I’m grateful to each and every one of you of
the participants. I am delighted that their appearance on Balkinization will
bring them to the attention of a wider community that will much benefit from
reading and thinking about them. I want to engage in a
special recognition of Doug Laycock. It’s not only that we’ve been friends and
colleagues now for forty years. It’s also true that there is probably no single
individual in the academy who has so obviously affected the way I think about
the general issues surrounding law and religion. That being said, I find myself
even more perplexed and ambivalent than usual at the present moment about what
the relationship between law and religion should be, not least because of a lot
of developments over these forty years or even more recently. I published a
group of essays, Wrestling with Diversity, in which I expressed a
variety of quite “Laycockian” views about how best to treat that relationship. But
it turns out that the wrestling match has not ended! I am increasingly
dissatisfied with the relevance of most standard-form legal doctrine, which
seems to me to evade many central questions, beginning, for that matter, with the
Supreme Court’s almost insouciant inability to offer a cogent definition of
“religion.” I suspect that Carol Nackenoff is correct in some of her comments
about the present (and future) Court, but, save for their obvious power in the
American legal order, I’m increasingly uncertain why I should take any of their
opinions truly seriously, even when I might agree with the particular outcome. It
is worth noting that our gathering occurred before the late-June blockbuster of
the Court and, particularly with regard to Carol’s paper, its opinion in the Kennedy
“praying coach” case. Many of us were perplexed why the Court took the case
at all, given that its facts were quite peculiar and there was nothing close to
a “conflict in the circuits” that demanded judicial intervention. It appears
quite clear, though, that the majority of the Court was quite determined to
intervene in order to write a broad opinion that served to upend many basic
understandings of religion and state built up over the past half century. In no
sense does the present Court seem interested in displaying any “passive
virtues.” It has power and it seemingly wishes to use it. It is foolhardy to
deny the continued relevance of W. E. B. DuBois’s emphasis on the importance of
the “color line,” even in the 21st century. But Jaclyn Neo’s fascinating paper about religious
diversification across the world demonstrates that, whatever may have been our
expectations fifty years ago, “the religion line” will play an ever more
important role. Perhaps academics are becoming ever more secular and
“cosmopolitan,” but that definitely does not seem to be the case for the nation
or world at large. And Nomi Stolzenberg’s remarkable survey of my work over
many years asks a truly crucial question: Is it possible for intellectually
committed “secularists” and what might be called the “seriously religious” to
get along at the present time, which I must say is very different from, say,
the world in which the central law-and-religion case was Yoder? Thursday, August 04, 2022
Can We All Get Along? A Tribute and a Question
Guest Blogger
This post was prepared for a
roundtable on Wrestling with
Religious Diversity, convened as part of LevinsonFest 2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law. Nomi Maya Stolzenberg On March 3, 1991, Rodney King, an African
American man driving on a Los Angeles freeway, was chased and then savagely
beaten by the police. A videotape of the beating ignited widespread criticism
and charges were brought against the participating police officers for assault
and excessive use of force. The trial, which took place one year later,
culminated in acquittals of the four officers who were charged,[1] in reaction to which thousands
of people took part in five days of civil disturbances known variously as the
LA Uprising or the LA riots of 1992. On the third day of the uprising, King
gave an impromptu news conference, deploring the shooting of a security guard
that had taken place and pleading for an end to the violence. The speech is
famously remembered for one line, oft-misquoted as: “Can’t we all just get
along?” In fact, the question that Rodney King posed was not “can’t we get
along?,” but rather, “can we get along?” The latter conveys the same longing
for peaceful coexistence that the mistaken paraphrase does, and indeed, King
went on to say, wishfully, “we can get along. We all can get along. We just
gotta. We gotta. I mean, we’re all stuck here for a while. Let’s, you know,
let’s try to work it out.” But unlike the mistaken paraphrase, “can’t we get
along?,” “can we get along?” is less a rhetorical question to which the answer
must be yes than it is a genuine question, the answer to which remains very
much in doubt. In roughly the same time period, Professor
Sanford Levinson—Sandy, to his friends—published a set of essays posing
essentially the same question, with one key difference. Whereas Rodney King
expressed the desire to overcome the racial divisions that scar American
society, these essays that Sandy wrote in the early 1990s were focused on the
problem of religious division.[2] More precisely, they examined
the divide that exists between what Sandy described as “secularist,
accommodationist liberals like myself”[3]
and “those who are religious.”[4] They gave voice to his concern
about whether these groups can get along, as opposed to splintering apart into
mutually indifferent, or worse, warring camps. And they expressed the desire
not just to confront the divide between secularism and religious belief but to
explore the possibility of bridging it. Climate change and the Supreme Court’s version of police abolitionism
Andrew Koppelman
West
Virginia v. Environmental Protection Agency, which in June gutted
the Biden Administration’s ability to reduce the electrical power industry’s
carbon emissions, may be the Supreme Court’s most reckless and lawless decision
(in an extremely competitive field). The Court comes close to anarchism,
crippling Congress’s capacity to protect the country from disaster, and
undermining the fundamental purpose of the Constitution. I explain in a new column at The Hill, here. Wednesday, August 03, 2022
Wrestling with Religious Opposition to Leviathan
Guest Blogger
This post was prepared for a
roundtable on Wrestling with
Religious Diversity, convened as part of LevinsonFest 2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law. Mark
S. Scarberry[1] This
paper considers Professor Levinson’s (Sandy’s) treatment of Federalist No. 2 in
his book on the Federalist,[2]
and also his inaugural lecture at Touro Law School’s Jewish Law Institute,
“Divided Loyalties: The Problem Of ‘Dual Sovereignty’ and Constitutional
Faith.”[3]
The Federalist extolls American religious unity as a basis for maintaining and
deepening the American union. Sandy’s Touro lecture explores the conflict
inherent in a religiously diverse nation, where loyalty to God and loyalty to
the State—loyalty pledged pursuant to every government official’s oath (or
affirmation) to support the Constitution—may conflict. (In this regard, we
could consider the addition of “under God” to the Pledge of Allegiance during
the Cold War struggle against totalitarian adversaries that demanded total
loyalty to the State, but that would be a different paper.) I
would like to say something about the role of minority Christian faiths—key
elements of our religious diversity—in the development of First Amendment
principles. I will suggest that the contribution of those faiths in wrestling
with “Leviathan” may have made it possible for us all to live in peace, with a
degree of unity. Little
of this will be original. On an irreligiously religious note, consider Mark
Twain’s Notebook comment on Adam in the Garden of Eden: “How lucky Adam was. He
knew when he said a good thing, nobody had said it before.” Whether this paper
includes any “good thing[s]” will be for others to say. In
Federalist No. 2, John Jay, writing of course as Publius, asserted that the
Constitution had to be ratified, or else the unity of the United States, such
as it was, would be lost. The result? Separated, vulnerable and potentially
hostile states or confederations. Unity was possible because Americans were
“one united people”—setting aside the native American population and the
enormity of the evil of slavery—who, among other commonalities “profess[ed] the
same religion.” Sandy points out that “it would be easy to demonstrate the utter
fatuity” of Publius’s assertion of these commonalities.[4]
Most free Americans indeed were Christians of various sorts, though one might
doubt that persecuted Baptists and Quakers considered themselves to be united
by faith with Anglicans and Congregationalists. Nor, of course, would Jews. And
the English Civil War, with its religious struggle—not nearing in ferocity the
religious wars on the Continent but ending in the same year as publication of
Hobbes’s Leviathan—would not have been far from their minds. Tuesday, August 02, 2022
E Unum Pluribus: Comparative Textualism & Constitutional Faiths
Guest Blogger
This post was prepared for a
roundtable on Wrestling with
Religious Diversity, convened as part of LevinsonFest 2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law. Intisar
A. Rabb From one text comes many interpretations: e
unum pluribus. This formula is of course an inversion of e pluribus unum
(“from many, one”)—the motto for American democracy emblazoned on our money
to provide as often a reminder to [property-owning] adherents of America’s
“civil religion” of shared constitutional ideals, constitutional aspirations, constitutional
faiths.[1] By making faiths
plural, I am in part ceding the about-face that Sandy Levinson, former
adherent, made in his Foreword to a new edition of his book Constitutional
Faith. There, he concluded that, although the Constitution’s generalities
are still fluid and thus negotiable, many of its structural elements have
settled in ways that make governance and addressing problems of injustice hard.[2]
The Supreme Court’s Term this year perhaps proves the point.[3] Taking
up Sandy’s charge that scholars rarely discuss the general elements that make
interpretation hard, I offer some comparative perspective from a seemingly
unlikely place—Islam’s pluralistic legal system—to suggest that in any legal
interpretation, including the most controversial in the U.S., difficult interpretive
elements are never about a single constitutional faith. Nor are they even about
religion, per se, even when they seem to be. They are about a plurality of
constitutional faiths despite a single legal text. Those elements motivate core
differences in the Court’s interpretive debates over fundamental privileges
versus promises, textualism versus purposivism, status quo-preserving
originalism vs. rights-promoting pragmatism.[4] I
aim to explore those elements with an eye to the plurality of opinions that
emerge from shared legal texts, now that stare decisis is in question as
a way to settle them and now that interpretations of history and tradition
matter a lot toward the same end. Consider
Dobbs v. Jackson Women’s Health Organization, the Court’s recent
decision overturning its 1973 decision Roe v. Wade and its companion
1992 decision Planned Parenthood v. Casey.[5]
Differing interpretive approaches and conclusions in its majority and
dissenting opinions display competing visions of “history and tradition.”[6]
Those competing visions reflexively drive the interpretive approaches that
dictate which history and which traditions to adopt—in Dobbs,
a supermajority adopted an originalism that somehow excluded the history of
slavery and its ongoing consequences, as well as the Constitution’s
Reconstruction Amendments meant to address it, as Professor Michelle
Goodwin has powerfully pointed out.[7]
And both sides reveal competing accounts of the otherwise agreed-upon common
law doctrine of stare decisis and when to forego it. In the end, all of
these disagreements about history and interpretive method reveal differing
value commitments in the guise of competing beliefs, not explicitly in
religious faith (despite its obvious relevance to abortion),[8]
but in the Constitution and the role of the Court: that is, competing constitutional
faiths, plural.[9] As
with the popular religious and political polarization about abortion,
interpretive polarization was evident in the questions presented before the
Court, with no room for nuance, discussion, or compromise. Each side was at
pains to point out that only one position should and could reign supreme, and Justice
Alito was happy to oblige in Dobbs.[10]
But in reality, on the court, judges must wrestle with diversity.[11] Monday, August 01, 2022
Wrestling with Religious Diversification
Guest Blogger
This post was
prepared for a roundtable on Wrestling
with Religious Diversity, convened as part of LevinsonFest 2022—a year-long series
gathering scholars from diverse disciplines and viewpoints to reflect on Sandy
Levinson’s influential work in constitutional law. Jaclyn
L. Neo In the introduction to Sandy Levinson’s book Wrestling
with Diversity, he states that his “principal goal” is “to examine the
various ways that we attempt to come to terms with—to ‘wrestle’ with—the
complex issues presented by contemporary life in a decidedly diverse,
multicultural, and culturally pluralistic society.” This is a noble aim. We
live in a diverse society with multiple sources of divisions (e.g., culture,
language, ideology, and religion). In this post, I want to specifically orient
our minds towards religious diversification as a social dynamic that requires
critical attention in the public eye. This means that with increasing religious
diversification, the old constitutional settlements of asserting the
privatizing of religion, and ideologically bracketing religion, may no longer be
sufficient. Sunday, July 31, 2022
Stiff Joints Don’t Bend Anymore
Guest Blogger
This
post was prepared for a roundtable on Wrestling with
Religious Diversity,
convened as part of LevinsonFest 2022—a year-long series
gathering scholars from diverse disciplines and viewpoints to reflect on Sandy
Levinson’s influential work in constitutional law. Carol Nackenoff ‘there is room for play in the joints’ between what the Establishment Clause permits and the Free Exercise Clause compels.[1] It is an honor to
participate in this celebration of Sandy Levinson’s 40 years at the University
of Texas at Austin. Sandy’s enthusiasm for interacting with smart
undergraduates led him to accept my invitation to serve as an examiner for my
Constitutional Law honors seminar at Swarthmore, and he has also been
Swarthmore’s Constitution Day speaker. In Wrestling with Diversity (2003), Sandy
Levinson is especially concerned with the arrangements through which Americans
might interact peaceably with other Americans with religious and cultural
worldviews different from their own. Even in the founding era, a number of
influential people thought those in the new United States were diverse enough
to be worrisome—there were those German-speakers in Pennsylvania; there were
Quakers, Catholics, and Jews; people living in southern states and those on the
western frontier were seen as having such different values from those in the
northern Atlantic states that it was hard to imagine how they might form a
single union.[2]
Sandy argues there was no singular “People” in whose name the Constitution of
1787 was created. Since 1787, more elements of the population have been
included in the U.S. citizenry, and the nation is comprised of a much more
diverse array of people (religiously, culturally) than at the founding. Sandy
searches for solutions that might achieve “some kind of unum among the pluribus
of American society.”[3]
Toward this end, he finds exposure to other worldviews necessary—secular
perspectives for those in insular religious communities and diverse religious
perspectives for those who live in highly secular ones. Today, this looks
like an increasingly tall order, and the Court might even be impeding, rather
than aiding, such goals. A focus on recent constitutional struggles illuminates
some difficulties and stakes in wrestling with religious diversity and diverse
views about the place of religion in the public realm. The Court has weighed in
on quite a few blockbuster religion clause cases since Wrestling was published. Not only are Establishment and Free
Exercise Clause cases favorites on the Roberts Court’s docket, but many cases
involve their intersection. Friday, July 29, 2022
The Parliamentarian’s Curious Definition of “Merely Incidental”
David Super
Now that Sens. Schumer
and Manchin have reached agreement on the Inflation Reduction Act (IRA), the
Senate Parliamentarian’s role again comes to the fore. She will have two crucial functions. First, she will
rule on which provisions on the agreed legislation meet the Congressional
Budget Act’s requirements for inclusion in a “reconciliation” bill (the
so-called “Byrd Rule”). This is crucial
because, with united Republican opposition, the IRA can only pass through the narrow
exemption from filibusters that the Act provides to budget reconciliation
bills. And second, the Parliamentarian
must decide which amendments to that legislation may be offered on the Senate
floor. Although the Act caps the amount
of time that may be spent on floor debate, it does not limit the number of
amendments put to a vote so long as those amendments comply with the Act’s rules
for germaneness and its restrictions on the contents of reconciliation
bills. Senate Republicans have expressed
no interest in improving the legislation, but they do seek to force Democrats
to cast politically damaging votes to defeat their amendments. And because the Democrats’ majority is so
narrow, every single Democrat must vote against every single “poison pill”
amendment for the legislation to survive.
Several of the Congressional
Budget Act’s restrictions on reconciliation legislation enforce the congressional
budget resolution that authorized the bill.
Because the budget resolution under which Democrats are moving this bill
passed over a year ago, when hopes were much higher, the IRA will easily fall
within all budgetary constraints. Republican
amendments could theoretically be ruled out of order for breaching budgetary
ceilings, but Democrats likely would be only too happy to vote down “budget-buster”
amendments that would shrink the $300 billion in deficit reduction the IRA
contains. As a result, the provisions
of the Congressional Budget Act most likely to affect the IRA debate are those
designed to keep non-budgetary matters from hijacking the reconciliation vehicle
when they lack the support to move as regular legislation. In particular, she will have to apply section
313(b)(1)(D), which declares that “a provision shall be considered
extraneous if it produces changes in outlays or revenues which are merely
incidental to the non-budgetary components of the provision”. Neither the Parliamentarian
nor the Senate as a whole have articulated a clear definition of what it means for
a budgetary effect to be “merely incidental” to non-budgetary components. Obviously one could not rewrite the
Endangered Species Act or the Civil Rights Act of 1964 and slip it into a reconciliation
bill by adding some trivial fee somewhere.
But how should less extreme cases be decided? No minimum dollar threshold
can do the job: small revenue increases or
spending cuts can add up to have a significant impact on the deficit. And surely a small fiscal effect could be
merely incidental to an overhaul of the nation’s telecommunications statutes
yet not merely incidental to the treatment of import duties on day-minders. Several years ago,
the Parliamentarian rejected Republican efforts to exclude Planned Parenthood
from Medicaid on reconciliation legislation.
She acknowledged that doing so might save some money but believed that
restricting abortion, rather than lowering Medicaid’s costs, was the primary
motive of the provision’s authors. On the other hand,
she allowed Republicans to gut protections for the Arctic National Wildlife
Refuge on the 2017 reconciliation act. A
strong argument could be made that aiding oil and gas companies, and weakening
environmental protection generally, were far more central to the proponents’
multi-year campaign to drill in the refuge than the relatively meager federal
revenues anticipated. The
Parliamentarian concluded, however, that the revenues were enough to defeat a “merely
incidental” point of order. Throughout much of 2021, the Parliamentarian batted down several proposals to liberalize
immigration laws as part of the Build Back Better reconciliation bill under consideration
at that time. Legalizing undocumented
immigrants outside of reconciliation is very difficult because the
Congressional Budget Office scores many such measures as having a large cost because
it believes the immigrants’ family members (many of whom are U.S. citizens) would
then feel more at ease accessing human services programs. This would seem a
classic case of the nation deciding on its fiscal priorities, the very purpose
of the reconciliation vehicle. The
Parliamentarian ruled, however, that because many people passionately support helping
immigrants and are largely indifferent to the fiscal impact of doing so, those
fiscal effects were “merely incidental” to the non-budgetary effects on
immigrants. I disagreed
with that ruling at the time – and uncertainties about its basis contributed to
Democrats’ disastrous decision to delay moving the Build Back Better
reconciliation bill – but it is now established precedent.
Republicans seem
unlikely to try to provoke votes on abortion next week, but the other two
precedents could be important. The deal between Sens.
Schumer and Manchin contains so provisions for oil and gas leasing on federal
lands. Many environmentalists could do
without expanding fossil fuel consumption, but leading groups recognize that
these provisions are essential to holding the whole package together, with its
transformational initiatives supporting renewable energy development. Based on her ruling on the Arctic Refuge, the
Parliamentarian ought to allow this provision.
Republicans surely
would like to force Democrats to vote on various anti-immigrant measures. For example, they may try to force the
Administration to restrict persecution victims’ ability to claim asylum in this
country, as international law requires.
The fiscal effects of these provisions are likely to be quite trivial. Moreover, much of their fiscal impact is
likely to be on programs funded with discretionary appropriations, which does
not count for reconciliation purposes because those programs budgets are fixed
in appropriations bills. These would seem
to be straightforward examples of proposed changes in law with a large
real-world impact and a “merely incidental” fiscal side. These also would fit the Parliamentarian’s
rationale for rejecting immigration proposals a year ago: their motivation is hostility to immigrants –
or, more precisely, seeking to mobilize voters who are hostile to immigrants –
rather than any impact on the public fisc. More broadly, if
the Parliamentarian were to allow any anti-immigrant amendments to come to a
vote after blocking all pro-immigrant legislative proposals a year ago, she
would create a procedural regime with a deeply unbalanced substantive effect: immigrants’ opponents may pursue their
passions through reconciliation while immigrants’ supporters may not. For a Parliamentarian who cares more than some
judges about avoiding the appearance of favoritism, deviating from her strict
exclusion of immigration law changes from reconciliation could raise serious
concerns. Once the current
legislation has been completed, the Parliamentarian could do a great service to
the Senate – and to those (including the House of Representatives, the White
House, the Congressional Budget Office, and the Joint Committee on Taxation)
who depend on the Senate – if she would publish a clear, systematic statement
of how she interprets “merely incidental”.
Whatever the merits of a case-by-case method of statutory interpretation
may be in the courts, her failure to issue opinions explaining her rulings is
causing considerable confusion and wasted effort while damaging confidence in
her office. @DavidASuper1
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Books by Balkinization Bloggers ![]() 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). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |