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 The Future of State Politics: How Can We Get to a Good State? John Bingham Event in Ohio Pension Underfunding is Just a Form of Debt Budget Deal as Rorschach Test Planning for Fiscal Resiliency in a Fragmented World Response to In a Bad State Can Courts Resolve the Trilemma? State Constitutions as Fiscal Fulcrum David Schleicher’s Trilemma Trilemma Historical Empiricism and the Schleicher Trilemma Balkinization Symposium on David Schleicher, In a Bad State: Responding to State and Local Budget Crises Losing Big
|
Wednesday, June 07, 2023
The Future of State Politics: How Can We Get to a Good State?
Guest Blogger
John Bingham Event in Ohio
Gerard N. Magliocca
On Friday, I will be in Cadiz for the official renaming of the town Post Office for John Bingham. This is the first national honor for Bingham. I will speak at the ceremony along with Representative Bill Johnson (R-OH) and Richard Aynes, the former Dean of the University of Akron Law School. I hope to share some pictures from the event next week. Tuesday, June 06, 2023
Pension Underfunding is Just a Form of Debt
Guest Blogger
For the Balkinization symposium on David Schleicher, In a Bad State: Responding to State and Local Budget Crises (Oxford University Press, 2023). Amy Monahan State and local finance has an enormous impact on the lives
of nearly all Americans, yet is too often ignored in favor of splashier or more
digestible areas of public life. I was therefore delighted to see David
Schleicher’s new book, In a Bad State: Responding to State and Local Budget
Crises, take a sustained look at both the complex world of state and local
finance, and how federal actors might think through whether and how to respond
to state and local fiscal crises. I will begin with a few disclaimers. First, there were so
many interesting issues raised by this book that I had a difficult time
limiting myself to a length appropriate for this online symposium. I have
therefore chosen to highlight just one of many potential discussion points,
which I hope will be of broad interest to readers. Second (and maybe in
contradiction to my first disclaimer regarding broad interest), I am going to
focus my comments on In a Bad State’s treatment of distressed state and
local employee pension plans (referred to as “public pensions” for the sake of simplicity). Monday, June 05, 2023
Budget Deal as Rorschach Test
David Super
A month or so ago,
I expressed
skepticism that Speaker McCarthy had the authority to reach a budget deal that
could get the Democratic votes necessary to pass. Obviously, I was wrong. Accordingly, I am doing what any serious academic
does when events prove them wrong: I am
writing a long-form scholarly article explaining why I was actually correct
after all. (I say that only half-kidding.) In the meantime,
however, it seems useful to consider what factors allowed the deal to surmount
the obstacles that polarization posed. This
analysis draws little from the “inside
accounts”
in the popular media that are almost entirely spin: almost no disinterested parties are present
in these discussions so what they tell the media is instructive only as to what
they want the public to think about their side’s role in the process. So, for example, Republican accounts
emphasize White House staff’s role to further their narrative about President
Biden’s incompetence; Democratic stories try to make this process sound as
different as possible from the negotiation in 2011 – when Speaker John Boehner
bullied and manipulated President Obama and his vice president – to fend off
criticism that they learned little and repeated unpleasant history. The biggest
surprise to me was Speaker McCarthy’s willingness to make himself dependent on
Democratic votes – and most House Republicans’ willingness to allow that. The rule that House Freedom Caucus negotiated
in exchange for allowing Rep. McCarthy to become speaker allow a single Member
to move to declare the speaker’s chair vacant.
If Democrats were to follow ordinary practice and vote against the
Speaker, the Freedom Caucus’s votes would be more than enough to carry the
motion to victory even if the vast majority of House Republicans stayed
loyal. One might expect Democrats would be
pleased to vacate the speaker’s chair:
with no obvious replacement, House Republicans could become locked in
another divisive and embarrassing public fight, supporting Democrats’ narrative
that House Republicans are beholden to extremists. The reason no Freedom
Caucus Member has filed such a motion is clearly that they understand that
Democrats have Speaker McCarthy’s back.
If forty or so Democrats abstain, the same Republican Members that
backed him throughout the votes in January would be enough to preserve his gavel. A Republican official depending on Democratic
votes would ordinarily be disqualifying, but apparently the majority of their
Members have wearied of the Freedom Caucus enough to accept it. Rep. Thomas Massie, a right-wing Member added
to the House Rules Committee at the Freedom Caucus’s insistence, recognized how
embarrassing this situation is for the Speaker and voted to bring the deal to
the floor so that the Speaker would not need Democratic votes in
Committee. But everyone knew Democrats
would help if needed. This does not mean
that Speaker McCarthy is now a coalition speaker or that he will not zealously advocate
for many extreme Freedom Caucus positions.
But it does mean that on issues where many of his Members agree with
Democrats, such as aid to Ukraine, he has some latitude to bypass the Freedom Caucus. Even without the Freedom Caucus, however, several
election cycles of primaries and forced retirements have yielded a quite extreme
set of House Republicans so little true moderation is likely. Also surprising
about the final budget deal was how effectively leaders on both sides managed
to induce and manipulate wishful thinking by their Members. On issue after issue, each leader managed to
find just the right kind of complexity or ambiguity to allow Members to see
what they wanted to see. For example, the
deal has six years of spending caps that will force huge real cuts in what the
federal government
is able to do domestically. Two of those
caps are backed with the threat of sequestration; the other four are not. Speaker McCarthy accordingly claimed that he
had won six years of caps and calculated huge savings numbers. Because his Members were seeking big numbers and
had not bothered to identify particular policies to achieve those numbers, this
went over well. President Biden, on the
other hand, played to the legalism of many Democrats by claiming that the final
four years’ caps were “non-binding”, suggesting that he had outmaneuvered the
Speaker. In practice,
because appropriations levels always require bipartisan agreement no matter who
controls Congress or the White House, Republicans can, and presumably will,
insist that Democrats agreed to these out-year caps and reject any appropriations
bills that exceed them. But Democrats like
to think of Republicans as stupid so the outmaneuvering narrative stuck. Similarly, Speaker
McCarthy won imposition of a three-month time limit on food assistance to unemployed
and underemployed 50- to 54-year-old childless adults – what Republicans call “work
requirements” even though they offer no
chance to work for assistance. The White
House, again playing on Democrats’ conceit that they are more sophisticated than
Republicans, included three exemptions that it claimed would actually increase
the number of people eligible for food assistance. This claim is incorrect for several reasons,
most obviously that states are terrible at recognizing and applying those
exemptions. The largest group the White
House claimed to have protected was the homeless, yet USDA issued guidance
several years ago advising states that homeless people already were generally
exempt. States face audit penalties for
providing food assistance to people who should be disqualified, they face no sanctions
for denying food to people who should be exempt. Finally, I was
surprised at the willingness of Members of both parties to trust their leaders
on the contents of side agreements not included in the legislation on which
they were voting. The explicit cut to
IRS funding appears fairly moderate, but Speaker McCarthy claimed to have a
side agreement for much deeper cuts that would hobble the agency’s ability to
audit affluent tax cheats. This question
could potentially have a huge impact on the deficit as well as on the morale –
and propensity to pay – of non-affluent taxpayers. Similarly, the two sides appear to be contradicting
one another on how much the appropriations caps in the first two years will be softened
by side deals on “adjustments”. On these
issues and others, the vast majority of Members of both parties were content to
tout their leader’s story despite clear evidence that the other side believed
something very different. For all both
sides’ mutual distrust and demands for transparency, opacity won the day. A side note is
that nobody should put any real weight on how either representatives or
senators voted. Speaker McCarthy
promised 150 Republican votes. He missed
that level slightly, but even if he had missed by a great deal the Democrats
would have supplied whatever was needed (including some who took advantage of
the solid majority for passage to vote “no”).
In the Senate, the Democrats’ majority made them responsible for corralling
most of the needed votes. Minority
Leader McConnell was responsible for supplying only enough Republican votes to
invoke cloture, plus a few more to cover for dissents from a few Democrats (who
likely would have voted “yes” if Senator McConnell had stumbled). Perhaps most
interesting was the failure of Sens. Mike Lee or Rand Paul to filibuster: Leaders Schumer and McConnell had the votes
to end debate, but doing so would have taken several days, possibly preventing
final passage before the June 5 deadline Secretary Yellen had announced. They likely concluded that no viable vehicle
existed for locking in additional concessions from Democrats so they would reap
little reward from keeping their colleagues in Washington through the weekend. Finally, after
months of complaining that the debt limit’s validity under the Fourteenth
Amendment should be tested in court before he asserted it – not a terribly
realistic expectation – President Biden threw away a perfect opportunity to
obtain that ruling. He had more than
enough time for Treasury to auction off a token amount of bonds in excess of
the debt limit, enabling a legal challenge, and then to sign the legislation
and hold a regular Treasury auction to meet the government’s on-going
expenses. On each individual occasion,
it may seem more beneficial to pay protection money than to rid oneself of extortionists,
but the cumulative long-term effects are devastating. @DavidASuper1 Planning for Fiscal Resiliency in a Fragmented World
Guest Blogger
Sunday, June 04, 2023
Response to In a Bad State
Guest Blogger
Saturday, June 03, 2023
Can Courts Resolve the Trilemma?
Guest Blogger
For the Balkinization symposium on David Schleicher, In a Bad State: Responding to State and Local Budget Crises (Oxford University Press, 2023). Clayton P. Gillette David Schleicher’s
terrific new book, In a Bad State,
offers a novel and cohesive account of the various objectives (bailout,
austerity, measured default) that the federal government might pursue in the
face of state and local fiscal crisis, and compellingly analyzes the
impossibility of simultaneously achieving all of those goals. By providing a roadmap to the manner in which
academics and policy makers must think about actual and potential distress,
David’s insight, which amounts to an Arrow’s Theorem for fiscal crisis, stands
as a major contribution to the literature.
I want to focus on the
role of courts in addressing or resolving David’s trilemma. David treats the courts, especially the
Supreme Court, as an equal partner in structuring a federal response. I am less confident that courts play the role
that David attributes to them, in part because of the limited function of
courts and in part because of their relationship with the executive and
legislative branches. In short, I want
to suggest that while David is certainly correct in focusing on courts as major
players in confronting the trilemma, they are structurally and functionally
different from the other relevant actors.
And those differences bring into question whether courts can play a
coherent, intentional role in resolving the trilemma, or whether their
contributions only fortuitously coincide with one or more of the objectives of
other federal branches. Friday, June 02, 2023
State Constitutions as Fiscal Fulcrum
Guest Blogger
For the Balkinization symposium on David Schleicher, In a Bad State: Responding to State and Local Budget Crises (Oxford University Press, 2023). Daniel B. Rodriguez
David Schleicher’s outstanding new book is an
instant classic, in its breadth and erudition on the highly complex topics of
fiscal policymaking in times of crisis and also in its handiness as a
one-stop-shopping for students and scholars who hanker for a comprehensive
resource in understanding these issues from both positive and normative
perspectives. As he concedes at the end
of the book, one’s ultimate views on the sense of one or another scheme of
addressing crises will turn on one’s fundamental principles of the role of
government. How to resolve the tradeoffs
Schleicher describes requires judgments that are “deeply ideological.” [121] Still and all, the book makes and explains
the essential point – that We the People cannot have our cake and eat it
too. There is an unavoidable
trilemma. Feds want to avoid the harms
that come with spending cuts and tax increases, to avoid moral hazards, and
ensure that states and cities can continue their access to capital markets so
as to invest in infrastructure projects.
That they cannot implement all of these goals simultaneously is a hard
constraint on policy choice; and so the federal government needs to navigate
this trilemma by conspicuous awareness of and accounting for this trilemma. The principal focus, and hence the audience, for
this book is the federal government. There
is plenty to manage with respect to these complex issues just at the federal
level. And yet what I am dying for is
really a sequel, one that fills out the analysis that Schleicher gestures
toward at the very end of the book, in a section entitled “Why States are
often Bad?” Herein lies a profound statement
of his: “[T]e primary responsibility for
addressing state and local fiscal problems lies with state and local
governments.” [167]. This point is not
developed in this book, for Schleicher’s focus is here on the feds. There are many things to say about state and
local governments in this space, as the robust body of scholarship by political
scientists, economists, and legal scholars, indicates. Moreover, this vein of research is likely to
expand as on steroids, given the greater interest among public law scholars in
matters state and local (we might see Dobbs and the post-2020 election
cases as major engines of this renewed interest, but that’s a story for another
time). Just to surface a small sampling
of the questions that the trilemma raises for scrutiny of state and local
decisionmaking, consider: Thursday, June 01, 2023
David Schleicher’s Trilemma Trilemma
Guest Blogger
Wednesday, May 31, 2023
Historical Empiricism and the Schleicher Trilemma
Guest Blogger
For the Balkinization symposium on David Schleicher, In a Bad State: Responding to State and Local Budget Crises (Oxford University Press, 2023). Vince Buccola The
principal object of David Schleicher’s slim, new book, In a Bad State, is
to set out a conceptual schema for mapping policy options with respect to state
and local financial distress. The Schleicher Trilemma states that no policy
response can simultaneously vindicate each of three commonsense values that
(national) political actors are apt to hold, and the book is devoted to
elaborating this core insight. There is much more to the work, of course. As anyone
who knows Schleicher even a bit will expect, the book’s 171 pages (sans notes)
brim with fascinating data and anecdotes. (Schleicher aficionados will,
however, be disappointed not to find an index entry for “Stillman, Whit.”) By
word count, much of the book (pp. 33–117) is historical. Schleicher offers a
fresh account of each major wave of state and local financial distress in the
United States, from the aftermath of the Revolutionary War through Covid-19.
The historical vignettes alone more than justify the cover price. In the
context of the book’s analytical purpose, though, they serve didactic and
argumentative functions, on one hand to illustrate the Trilemma through
real-world application and on the other to verify the causal relationships it
posits.
The Schleicher
Trilemma turns on a mismatch between policy levers and policy goals. In
Schleicher’s typology, there are three generic strategies national policy can pursue
in relation to local (in which category I’ll include state) government
financial distress. The national government can (1) bail out the local government
and its creditors; (2) encourage the local government to default on its
creditors; or (3) force the local government to pursue an austerity path—raising
taxes, cutting spending—to pay its creditors. And there are three generic
political values at stake. National policy makers will want to (A) reduce moral
hazard (for future leaders of, and lenders to, local governments); (B)
encourage future lending to local governments (to further infrastructure
investment); and (C) avoid social fallout from local collapse of services or
tax hikes. The rub is that each policy attitude sacrifices one of the values. The
choices are A(2,3), B(1,3), or C(1,2). It is
a tremendous heuristic. Like all great heuristics, it manages simultaneously to
encompass the wide universe of relevant possibility and to be, for lack of a
better word, true. One doesn’t need to indulge game-theoretic axioms or harbor
an unrealistic notion of rational expectations to see that the trade-offs Schleicher
posits are inevitable. Grasping them is fundamental for those interested in the
connection between national policy and state and local investment, and I
therefore predict that In a Bad State will long prove a starting point
in policy analysis of local financial distress in the same way that
Modigliani-Miller is still the beginning of interesting questions in corporate
finance. Balkinization Symposium on David Schleicher, In a Bad State: Responding to State and Local Budget Crises
JB
At the conclusion, David will respond to the commentators. Sunday, May 28, 2023
Losing Big
David Super
President Biden
got owned. Nominally, he got owned by Speaker
Kevin McCarthy. In reality, he got owned
by Rep. Matt Gaetz. Rep. Gaetz had a clear,
well-developed long-term strategy that he followed with great discipline. The Administration had only a set of half-formed,
often contradictory, impulses that it followed haphazardly, rarely thinking
even one move ahead. It likely thinks it
won several news cycles and is hard at work trying to win another. Rep. Gaetz set out to win on substance, and
the wailing and moaning we are now hearing from the Freedom Caucus is precisely
what they ought to do to lock in their huge substantive victories and set the
stage for more. Surely the Members that
are paying attention know that they won. But by withholding their votes, they can force
even more Democrats to vote for this deal. The details have
yet to emerge, but from media accounts it appears the President agreed to a substantial
nominal-dollar cut in non-defense discretionary spending for next fiscal
year. When roughly five percent
inflation is considered, this will be a deep reduction in the capacity of the
federal government to perform its basic functions. For the following year, nominal non-defense
discretionary spending would rise one percent, which after the effects of inflation
will mean several additional percentage points of real cuts in its ability to
do its job. But it gets
worse: a lot worse. Media accounts say that veterans’ health
care, one of the larger accounts within that category, will be protected. That means that everything else will have to
absorb proportionately deeper cuts to make up for those not going to veterans’
health care. Numerous other government
functions (e.g., Border Patrol, protective details for high officials, utilities
for federal buildings) will not be cut, forcing still-bigger cuts in what remains. In addition, if
Congress and the President do not agree upon all twelve annual appropriations
bills by January 1, the agreement apparently would impose a year-long
continuing resolution (CR) with a one-percent across-the-board nominal
cut. This will give Republicans – who can
effortlessly hold back one or more bills – enormous leverage in negotiating the
content of those appropriations bills.
So not only will the levels be far below those needed to maintain
government functions, but the money that is spent will almost certainly be
badly misallocated. It remains to be
seen how these pieces fit together, but even the best-case scenario is pretty
grim. This result has
enormous long-term significance. First,
and most obviously, each year’s appropriations discussions start with the prior
year’s spending level. Merely restoring a
program to its now-current level of effectiveness will require the President and
Congress to go far above that baseline and invite the label “big spenders.” Many programs still have not recovered from
the “sequestration” cuts President Obama agreed to over a decade ago. More insidiously, underfunding
government programs will cause them to function less well. National parks will close off areas for lack
of resources for operations and maintenance.
People will miss flights as TSA lines lengthen, or those flights will
get cancelled when air traffic control is overstretched. People will get sick when contaminated meat
gets past USDA inspectors even more overwhelmed than they are today. The FDA will hold up approvals of anticipated
drugs for lack of examiners to review applications. All this will support the Republican
narrative that government is incompetent and “deserves” more funding cuts. Beyond that, the
Biden Administration passively accepted – at times even reinforced – Republicans’
profoundly tendentious framings of the issues.
Rather than working to gain public acceptance of the legal theories that
could end debt limit hostage-taking once and for all, the Administration
planted stories about how it was having trouble taking seriously “out there”
theories and the President himself pledged not to use them (and thus
obliterating his negotiating leverage). People who would
never be foolish enough to say that de-indexing the Internal Revenue Code was
not a tax increase are nonetheless accepting the inflation-denialist demand to
discuss spending programs only in nominal dollar terms. The Administration
ceded without serious contest the mantle of “fiscal conservatives” to Members
of Congress proposing huge unfunded business tax cuts that would swamp the
effects of these spending cuts. The
approach of Presidents Ronald Reagan and George W. Bush was to ram through large
unfunded tax cuts and then later “discover” a “fiscal emergency” that “required
shared sacrifice” to address. Today’s
Republicans believe they can get away with pursuing these contradictory agendas
simultaneously. And the Biden
Administration is telling them they are right. Perhaps most insidiously,
the Administration continually accepted Republicans’ characterization of
eligibility purges from basic assistance programs as “work requirements.” None of the Republicans’ main proposals for
the Temporary Assistance for Needy Families (TANF) block grant had anything to
do with putting anyone to work: they simply
sought to increase the quotas for families that states must purge from their already-shrunken
assistance programs in order to avoid creating the work programs states almost
unanimously are unwilling to operate. And the so-called
SNAP “work requirement” would cut off food assistance after just three months
to low-income people between ages 50 and 55 who cannot prove that they are
working at least half-time every month. Minimally
skilled people in this age range, which the Social Security Administration describes
as “closely approaching advanced age,” commonly see their employment prospects
dwindle as they are unable to compete with younger people at hard physical
labor. They may make ends meet with several
jobs, often with volatile
hours. If they cannot collect adequate
verification of all those hours each month, or if their total hours ever dip
below half-time, they are cut off.
Nothing in current law or the Republicans’ proposal requires states to give
individuals in need the opportunity to work for continued benefits. And despite generous financial incentives to offer
work slots, only a handful of states even purport to do so. Yet when most reporters hear about “work requirements,”
they assume that only the willfully idle are affected. And the Biden Administration has made little
effort to educate them otherwise – making its capitulation all but inevitable. President Biden had
a front-row seat for the Obama Administration’s short-sighted, strategically
clueless approach to Republican debt-limit extortion. Apparently he learned very little from
it. He had plenty of time to raise the
debt limit on a budget reconciliation bill after the election, needing no Republican
votes. All candidates for Chair of the House
Budget Committee last fall were publicly promising debt limit extortion to radically
transform the federal government. Failing to raise
the debt limit in December might have made sense as part of a plan to invoke
the 14th Amendment or to employ one of the several available
technical means of avoiding it.
Unfortunately, the Administration had no plan. This is the result. The President should tip his hat to Matt
Gaetz. @DavidASuper1
|
Books by Balkinization Bloggers ![]() Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) ![]() Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) ![]() Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) ![]() Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). ![]() Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). ![]() Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) ![]() Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) ![]() Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) ![]() Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). ![]() Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) ![]() Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) ![]() Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) ![]() Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) ![]() Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) ![]() Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) ![]() Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) ![]() Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) ![]() Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) ![]() Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) ![]() Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) ![]() Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) ![]() Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) ![]() Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution ![]() Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) ![]() Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) ![]() John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) ![]() Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) ![]() Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) ![]() James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) ![]() Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) ![]() Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) ![]() Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) ![]() Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) ![]() Jack M. Balkin, Living Originalism (Harvard University Press, 2011) ![]() Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) ![]() Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) ![]() Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) ![]() Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) ![]() Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) ![]() Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic ![]() Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) ![]() Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) ![]() Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) ![]() Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) ![]() Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) ![]() Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) ![]() Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) ![]() David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) ![]() Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) ![]() Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) ![]() Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) ![]() Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |