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 More Proof that Blogging Can Be a Form of Scholarship The Judge as POW Search Me. Please. Captain Fishback's Letter to Senator McCain The Problem With Skepticism: It's Hard to Believe The Joy of Money Genetics and Evolutionary Experiments Guest Blogger: Scott Horton Shirking Responsibility Robert Jackson, John Roberts, and the "Law/Politics" Distinction Searching For Osama? Give Back the Tax Cut “Just what the professor ordered” redux Originalism versus Living Constitutionalism, or, Do Akhil and I really disagree? Silver Linings (or, the Strange But True Fate of the Second (or was it the Third?) OLC Torture Memo) "We Don't Torture." "We Abide By Our Treaty Obligations." "We Treat Detainees Humanely." (Repeat as Needed.)
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Thursday, September 29, 2005
More Proof that Blogging Can Be a Form of Scholarship
JB
The University of Chicago Law School is starting its own faculty blog. I think it's a great idea, and hope that more faculties try it. If it catches on, I predict that it will reshape how legal scholarship is produced. People will visit faculty blogs for new ideas before they are shaped into articles and books; in some cases, the blog post will be the finished product, since it is immediately available and accessible to anyone who wants to read it. It has become increasingly obvious to me (and to many others as well) that some academic writing works perfectly well as a blog posting. Indeed, some of my blog postings have been cited in legal scholarship. Some blog postings work their way into books and articles I later write, but many if not most simply stay on my blog, and other people read them there. Like all media, the blog subtly (and not so subtly) shapes how ideas are expressed, and what sorts of ideas get expressed. Blogs rarely use footnotes (links are used instead), and they usually are best for short essays rather than long discussions. But many important ideas in legal scholarship can be stated in less than 4,000 words, and it is well worth learning the skills and discipline necessary to do this. You might think that the blog format would discriminate in favor of the trendy issues of interest to a general audience rather than the sort of issues of interest to dedicated scholars. To a certain extent this is surely the case. And yet, because of the fact that storage space is (relatively) unlimited, academics are free to write about highly technical topics on their blogs as well as popular ones. Blogging does not require that one engage in one kind of writing or the other; the real driver is the dialectic between authorial interests and audience expectations. On this blog, for example, our readers are used to (and expect) well-reasoned and detailed arguments about law and politics. As a result, we have no qualms posting long essays with an academic flavor, even if they are rather technical. Other blogs will attract different audiences with different expectations. Because the Internet does not require that bloggers have any particular type of audience, it does not require that blogs have any particular type of content. What happens to faculty blogs (and scholarship on those blogs) will depend on whether faculty can obtain a relatively sophisticated and loyal audience, even if fairly small, who want to read their ideas. So far, at least, this blog has developed such an audience, and all of us are grateful for it. Wednesday, September 28, 2005
The Judge as POW
Scott Horton
Yesterday I attended a tribute to Harold R. Tyler, Jr. at the New York City Bar. Tyler was a legendary figure in his own lifetime, a man of sardonic wit but also an overpowering kindness and humanity. I have never met a man who had a more powerful sense of justice or moral right and wrong. He was the veritable Jungian archetype of a judge. But his greatest service to the nation consisted, under President Ford, of restoring the reputation of a badly tarnished Justice Department in the period just after Watergate when America was undergoing one of its periodic crises of confidence. Tyler was also proud of another US institution: the Army. He served in the artillery in the Second World War, and his father had been a distinguished officer in the Great War. Search Me. Please.
JB
As an author who is always trying to get people interested in my books, including (Warning: shameless self promotion ahead) my first book, my second book, my third book, my fourth book, my fifth book, and my sixth book, I have to agree with Tim O'Reilly's op-ed: the Author's Guild suit against Google is counterproductive and just plain silly: Google promises an alternative to the obscurity imposed on most books. It makes that great corpus of less-than-bestsellers accessible to all. By pointing to a huge body of print works online, Google will offer a way to promote books that publishers have thrown away, creating an opportunity for readers to track them down and buy them. Even online sellers like Amazon offer only a small fraction of the university libraries' titles. While there are many unanswered questions about how businesses will help consumers buy the books they've found through a search engine for printed materials that is as powerful as Google's current Web search, there's great likelihood that Google Print's Library Project will create new markets for forgotten content. In one bold stroke, Google will give new value to millions of orphaned works. Captain Fishback's Letter to Senator McCain
Marty Lederman
The Washington Post today publishes the complete text of a September 16th letter (below) from Captain Ian Fishback (see Scott's post) to Senator John McCain. Juxtaposing this letter and Tim Flanigan's responses to the Senate on torture and inhumane treatment (discussed here), an accompanying Post editorial opines that "it is an odious thing that the top two law enforcement officers of the United States [Gonzales and Flanigan] will both be people who resort to evasive legalisms in response to simple questions about uncivilized conduct." Tuesday, September 27, 2005
The Problem With Skepticism: It's Hard to Believe
Brian Tamanaha
In his testimony Judge Roberts insisted that his personal views will be irrelevant to his legal decisions: The Joy of Money
Mark Graber
I've seen some version of the following post on a number of blogs recently (I stole this from the highly recommended ACS blog). "Irell & Manella and Quinn Emanuel have announced a raise in first-year associate salaries to $135,000. Higher salaries may induce more young lawyers to choose firms over public and non-profit jobs. " Folks, let's be realistic here. The vast majority of full professors at respectable universities (though not Harvard) who are in the social sciences and humanities do not make $135,000 (I'm nowhere near that). I have many good friends, 50ish, who teach in the public school system who make even less. Yet all of us live in housing that is not about to be condemned and manage to both feed and put clothes on our children. In short, the rest of the world does live or would live quite comfortably on a public interest law salary (such income is an unrealistic fantasy, even for most Americans). One virtue of a free enterprise system is you get to start at $135,000 if that is what someone is willing to pay you. Athletes do even better. But let's not fool ourselves. If a raise from 130,000 to 135,000 convinces a late 20 year old to forego public interest law, there was not much of a commitment to public interest law in the first place.
Monday, September 26, 2005
Genetics and Evolutionary Experiments
JB
This article in the Washington Post helps counteract an false assumption about evolution that many have made. This is the assumption that because evolution is a theory of historical change it can only be confirmed by the fossil record, rather than by performing experiments today that make potentially confirmable or falsifiable predictions. In fact that's not the case: But decoding chimpanzees' DNA allowed scientists to do more than just refine their estimates of how similar humans and chimps are. It let them put the very theory of evolution to some tough new tests. If Darwin was right, for example, then scientists should be able to perform a neat trick. Using a mathematical formula that emerges from evolutionary theory, they should be able to predict the number of harmful mutations in chimpanzee DNA by knowing the number of mutations in a different species' DNA and the two animals' population sizes. "That's a very specific prediction," said Eric Lander, a geneticist at the Broad Institute of MIT and Harvard in Cambridge, Mass., and a leader in the chimp project. Sure enough, when Lander and his colleagues tallied the harmful mutations in the chimp genome, the number fit perfectly into the range that evolutionary theory had predicted. Their analysis was just the latest of many in such disparate fields as genetics, biochemistry, geology and paleontology that in recent years have added new credence to the central tenet of evolutionary theory: That a smidgeon of cells 3.5 billion years ago could -- through mechanisms no more extraordinary than random mutation and natural selection -- give rise to the astonishing tapestry of biological diversity that today thrives on Earth. Evolution's repeated power to predict the unexpected goes a long way toward explaining why so many scientists and others are practically apoplectic over the recent decision by a Pennsylvania school board to treat evolution as an unproven hypothesis, on par with "alternative" explanations such as Intelligent Design (ID), the proposition that life as we know it could not have arisen without the helping hand of some mysterious intelligent force. Sunday, September 25, 2005
Guest Blogger: Scott Horton
JB
Scott Horton, a partner at Patterson, Belknap, Webb & Tyler LLP, President of the International League for Human Rights and a widely known international human rights expert, has graciously agreed to continue writing occasional posts on torture and related legal issues while Marty takes a breather. Please give him a warm welcome.
Shirking Responsibility
Scott Horton
"Command is a sacred trust. The legal and moral responsibilities of commanders exceed those of any other leader of similar position or authority. Nowhere else does a boss have to answer for how subordinates live and what they do after work." Saturday, September 24, 2005
Robert Jackson, John Roberts, and the "Law/Politics" Distinction
Mark Tushnet
I've just been reading the manuscript of William Wiecek's superb forthcoming volume in the Holmes Devise History of the Supreme Court, and found its reminder of what Robert Jackson had said in the Court's deliberations over Brown v. Board of Edcuation quite provocative, in light of the praise John Roberts heaped on Jackson (and the praise that was heaped on John Roberts for praising Jackson). Searching For Osama?
Mark Graber
Last month, the American Prospect published a short essay suggesting that the goal of American policy in the Islamic World ought to be to find Osama Bin Laden and bring him to justice. I'm no expert on the Middle East and anti-terrorism, but I wondered whether that was right. If the point of capturing bin Laden is that he plays a crucial role in Al-Quida, so that his capture is likely to save a great many innocent lives, I have no problem with risking military lives in an effort to realize this goal. But the essay seemed to offer a Kantian rationale, that Americans ought to continue efforts to capture Bin Laden because he deserves to be punished. Give Back the Tax Cut
JB
My colleague Dan Markovits has an elegant proposal that combines good works with an important political statement: He urges people to give back the amount they benefited under the Bush tax cuts to the victims of Hurricane Katrina If the politicians won't do it, we should do it ourselves. This act, he argues, is an expression of solidarity and shared sacrifice, something which the Administration has never asked of Americans but which is all the more necessary in these troubled times.
Thursday, September 22, 2005
“Just what the professor ordered” redux
Ian Ayres
I received hundreds of emails in response to my textbook oped and thought it might be worthwhile to share some of the feedback (I’m not sure whether it is kosher to reveal the names in these emails, so at least this time, I will leave them out. But most of the ideas posted here are from other people). Wednesday, September 21, 2005
Originalism versus Living Constitutionalism, or, Do Akhil and I really disagree?
JB
My colleague, friend and co-author, Akhil Amar argues in this essay in Slate that liberals and progressives should give originalism a chance. But when you read it more carefully along with my previous remarks here and here, it's not clear how much we actually disagree. The dispute may only be about the definition of "originalism." For example, I argue that Now look at Akhil's reading of Brown v. Board of Education. For Akhil, the key question is not whether the framers of the Fourteenth Amendment thought that segregation of schools and other facilities was constitutional. What counts are the *principles* enunciated by the constitutional text: But the Reconstructionists never said that segregation would always and automatically be constitutional. The Constitution's text does not say that all citizens are equal "except for segregation laws." Rather, it uncompromisingly demands equality of civil rights‚—no ifs, ands, or buts. In fact, most Reconstructionists understood that a law whose statutory preamble explicitly proclaimed whites superior to blacks would be plainly unconstitutional. Perhaps Akhil is worried that focusing on original meaning to the exclusion of historical context will lead to interpretations that are divorced from the larger principles which the text was designed to articulate and enforce. If that is his concern, you can see why he is worried about what he calls "pun-games." Without a focus on the history that produced the text, you could take the text, apply the original meanings of each separate word, put them together in a creative way, and come up with a principle completely foreign to the historical purposes of the people who framed the text and those who adopted it. If that's Akhil's concern, then we still don't disagree. That's because focusing on the original meaning of the text requires that we focus not on each word in isolation, but rather in the context of what the words chosen by the framers and adopters are trying to convey. So Akhil would argue that the purpose of the Fourteenth Amendment is to secure civil equality before the law for all citizens, and the purpose of the due process and equal protection clauses is to extend basic rights to persons who are not citizens. Again, this seems right to me. Original meaning requires a focus on underlying principles which are to be derived from a study of the historical record. History counts. It also allows (or even requires) supplementation by structural principles. And finally, it also allows the interpreter to reason from past precedents if they are reasonable ways of fleshing out the meaning of the constitutional text and the principles that underlie the text. Those precedents need not be consistent with the original expected application of the text if they better articulate the larger purposes of the Constitution. Moreover, note that Akhil's method requires that sometimes you must read the purposes behind the text at a fairly high level of generality. Akhil's view is that the sex equality cases in the 1970's are correct because the Fourteenth Amendment's guarantee of civil equality, together with the Nineteenth Amendment's guarantee of suffrage secured equal rights for women. That is so despite the fact that there is evidence that the framers of the Fourteenth Amendment did not wish to disturb the coverture rules which effectively denied married women almost all of their civil rights, and the Nineteenth Amendment applies to voting, not to coverture. To reach this conclusion Akhil must construe the principle of equal citizenship and the principles behind the text of the Nineteenth Amendment at a fairly high level of abstraction; even if the framers thought the coverture rules were perfectly constitutional in 1868 such rules would be unconstitutional today. Again, I have no problem with this line of reasoning. But if one is willing to read constitutional texts in that (in my view enlightened) way, the differences between people who call themselves "originalists" like Akhil and people like me who believe in a Living Constitution start to vanish. To be sure, there are plenty of people who consider themselves originalists, like Justices Scalia and Thomas, who would reject reading the Fourteenth Amendment at that level of generality, arguing instead that we are bound by the expected application of the text at the time of its adoption. Akhil, I believe, rejects that view. Does that mean that he is not an originalist? He would strongly disagree. So is there a real disagreement here? There might be two. First, as the case of sex equality suggests, I am often more skeptical than Akhil that we can justify current doctrine by reference to the original understandings of the framers and ratifiers, preferring to ground my arguments about the best interpretation of the Constitution on a combination of original meaning, pre- and post enactment history, structure, and precedent. Since Akhil also looks to all of these modalities, it's not clear if this is more than a disagreement about emphasis. Second, we might disagree about why the best interpretation of the Constitution changes over time. Akhil sometimes sounds as if changes in facts explain all legitimate changes in constitutional interpretation; the principles themselves never change, only their application to a new set of facts. Thus, Robert Bork once said that Brown was justified because it became clear later on that you couldn't have segregation and equality, as if a change in facts occurred between 1868 and 1954 which made segregation unconstitutional (or as if the framers in 1868 were simply innocently naive in their belief that segregation was consistent with equality). This account of changed circumstances-- variations of fact against eternal principles-- is a traditional common law conception that you will find in thinkers before Cardozo. Cardozo is among the first jurists to suggest that common law evolution involves changes both in factual understandings and in the values that are used to understand those facts. (Akhil, I should add, does not believe that all constitutional principles are timeless. Some constitutional principles are modified by later amendments which supplement or alter them. This is the point of his book on the Bill of Rights; he argues that the meaning of the Bill of Rights was modified by the ratification of the Fourteenth Amendment. His point is that constitutional principles are not properly supplemented or altered in any other way than subsequent amendment). I tend to look at constitutional change somewhat differently. My view is more like Cardozo's: Changes in facts only become salient or relevant against the backdrop of certain values, so that changes in factual understanding go together with alterations in underlying values. What happened between 1868 and 1954 was not just changed circumstances, but political and social movements that changed people's minds about what the principle of equality before the law encompassed. For me, post-ratification social movements like the struggle for civil rights (which, by the way, goes back long before the direct action phase of the Civil Rights Movement in the 1960's) reshape our understandings of changing facts-- and of facts that have not changed-- by simultaneously reshaping our values. So unlike Bork, I do not think that many or most of the framers and ratifiers in 1868 naively believed that segregation was consistent with equality. Rather, I believe that most of them were simply not comfortable with full equality for a race so newly freed from slavery, and they wanted to preserve the greater social status that came with being white. But they were wise enough and foresighted enough to choose language that could be read more broadly than what they expected or perhaps even wanted. And we should take them at their word rather than be controlled by their concrete expectations or intentions. That is why I have written: Now the standard way that one can avoid saying that there has been a change in values as well as facts is to articulate the relevant constitutional principles at a fairly high level of generality. I think that this is what Akhil sometimes does. He would deny it; rather he would say that he looks at the historical principles at the appropriate level of generality contemplated by the framers and ratifiers, subject to change by later amendments. Perhaps our most significant disagreement then, is not about originalism versus living constitutionalism, but a disagreement about what is actually going on in this process of constitutional interpretation. Silver Linings (or, the Strange But True Fate of the Second (or was it the Third?) OLC Torture Memo)
Marty Lederman
Back in January I began posting on this blog about the law of interrogation and torture. What prompted me to do so was not an expertise or interest in that area of the law; nor was it even the infamous Office of Legal Counsel "Torture Memo" of August 1, 2002, which had been leaked to the public several months earlier. Instead, I was motivated to blog here because of a very promising development at the office in which I had previously worked—namely, the superseding OLC memo issued on December 30, 2004, eight days before my first post here. "We Don't Torture." "We Abide By Our Treaty Obligations." "We Treat Detainees Humanely." (Repeat as Needed.)
Marty Lederman
Timothy Flanigan was the Assistant Attorney General for the Office of Legal Counsel (OLC) in the George H.W. Bush Administration. In the George W. Bush Administration, he was Deputy White House Counsel. He left the Government in December 2002, and has now been nominated to be the No. 2 officer at the Department of Justice -- the Deputy Attorney General.
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Books by Balkinization Bloggers Jack M. Balkin, Memory and Authority: The Uses of History in Constitutional Interpretation (Yale University Press, 2024) Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023) Jack M. Balkin, What Roe v. Wade Should Have Said: The Nation's Top Legal Experts Rewrite America's Most Controversial Decision - Revised Edition (NYU Press, 2023) Andrew Koppelman, Burning Down the House: How Libertarian Philosophy Was Corrupted by Delusion and Greed (St. Martin’s Press, 2022) Gerard N. Magliocca, Washington's Heir: The Life of Justice Bushrod Washington (Oxford University Press, 2022) Joseph Fishkin and William E. Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022) Mark Tushnet and Bojan Bugaric, Power to the People: Constitutionalism in the Age of Populism (Oxford University Press 2021). Mark Philip Bradley and Mary L. Dudziak, eds., Making the Forever War: Marilyn B. Young on the Culture and Politics of American Militarism Culture and Politics in the Cold War and Beyond (University of Massachusetts Press, 2021). Jack M. Balkin, What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press, 2020) Frank Pasquale, New Laws of Robotics: Defending Human Expertise in the Age of AI (Belknap Press, 2020) Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020) Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020). Andrew Koppelman, Gay Rights vs. Religious Liberty?: The Unnecessary Conflict (Oxford University Press, 2020) Ezekiel J Emanuel and Abbe R. Gluck, The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America (PublicAffairs, 2020) Linda C. McClain, Who's the Bigot?: Learning from Conflicts over Marriage and Civil Rights Law (Oxford University Press, 2020) Sanford Levinson and Jack M. Balkin, Democracy and Dysfunction (University of Chicago Press, 2019) Sanford Levinson, Written in Stone: Public Monuments in Changing Societies (Duke University Press 2018) Mark A. Graber, Sanford Levinson, and Mark Tushnet, eds., Constitutional Democracy in Crisis? (Oxford University Press 2018) Gerard Magliocca, The Heart of the Constitution: How the Bill of Rights became the Bill of Rights (Oxford University Press, 2018) Cynthia Levinson and Sanford Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (Peachtree Publishers, 2017) Brian Z. Tamanaha, A Realistic Theory of Law (Cambridge University Press 2017) Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (University Press of Kansas 2016) Sanford Levinson, An Argument Open to All: Reading The Federalist in the 21st Century (Yale University Press 2015) Stephen M. Griffin, Broken Trust: Dysfunctional Government and Constitutional Reform (University Press of Kansas, 2015) Frank Pasquale, The Black Box Society: The Secret Algorithms That Control Money and Information (Harvard University Press, 2015) Bruce Ackerman, We the People, Volume 3: The Civil Rights Revolution (Harvard University Press, 2014) Balkinization Symposium on We the People, Volume 3: The Civil Rights Revolution Joseph Fishkin, Bottlenecks: A New Theory of Equal Opportunity (Oxford University Press, 2014) Mark A. Graber, A New Introduction to American Constitutionalism (Oxford University Press, 2013) John Mikhail, Elements of Moral Cognition: Rawls' Linguistic Analogy and the Cognitive Science of Moral and Legal Judgment (Cambridge University Press, 2013) Gerard N. Magliocca, American Founding Son: John Bingham and the Invention of the Fourteenth Amendment (New York University Press, 2013) Stephen M. Griffin, Long Wars and the Constitution (Harvard University Press, 2013) Andrew Koppelman, The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2013) James E. Fleming and Linda C. McClain, Ordered Liberty: Rights, Responsibilities, and Virtues (Harvard University Press, 2013) Balkinization Symposium on Ordered Liberty: Rights, Responsibilities, and Virtues Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, 2013) Brian Z. Tamanaha, Failing Law Schools (University of Chicago Press, 2012) Sanford Levinson, Framed: America's 51 Constitutions and the Crisis of Governance (Oxford University Press, 2012) Linda C. McClain and Joanna L. Grossman, Gender Equality: Dimensions of Women's Equal Citizenship (Cambridge University Press, 2012) Mary Dudziak, War Time: An Idea, Its History, Its Consequences (Oxford University Press, 2012) Jack M. Balkin, Living Originalism (Harvard University Press, 2011) Jason Mazzone, Copyfraud and Other Abuses of Intellectual Property Law (Stanford University Press, 2011) Richard W. Garnett and Andrew Koppelman, First Amendment Stories, (Foundation Press 2011) Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011) Gerard Magliocca, The Tragedy of William Jennings Bryan: Constitutional Law and the Politics of Backlash (Yale University Press, 2011) Bernard Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Harvard University Press, 2010) Bruce Ackerman, The Decline and Fall of the American Republic (Harvard University Press, 2010) Balkinization Symposium on The Decline and Fall of the American Republic Ian Ayres. Carrots and Sticks: Unlock the Power of Incentives to Get Things Done (Bantam Books, 2010) Mark Tushnet, Why the Constitution Matters (Yale University Press 2010) Ian Ayres and Barry Nalebuff: Lifecycle Investing: A New, Safe, and Audacious Way to Improve the Performance of Your Retirement Portfolio (Basic Books, 2010) Jack M. Balkin, The Laws of Change: I Ching and the Philosophy of Life (2d Edition, Sybil Creek Press 2009) Brian Z. Tamanaha, Beyond the Formalist-Realist Divide: The Role of Politics in Judging (Princeton University Press 2009) Andrew Koppelman and Tobias Barrington Wolff, A Right to Discriminate?: How the Case of Boy Scouts of America v. James Dale Warped the Law of Free Association (Yale University Press 2009) Jack M. Balkin and Reva B. Siegel, The Constitution in 2020 (Oxford University Press 2009) Heather K. Gerken, The Democracy Index: Why Our Election System Is Failing and How to Fix It (Princeton University Press 2009) Mary Dudziak, Exporting American Dreams: Thurgood Marshall's African Journey (Oxford University Press 2008) David Luban, Legal Ethics and Human Dignity (Cambridge Univ. Press 2007) Ian Ayres, Super Crunchers: Why Thinking-By-Numbers is the New Way to be Smart (Bantam 2007) Jack M. Balkin, James Grimmelmann, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman and Tal Zarsky, eds., Cybercrime: Digital Cops in a Networked Environment (N.Y.U. Press 2007) Jack M. Balkin and Beth Simone Noveck, The State of Play: Law, Games, and Virtual Worlds (N.Y.U. Press 2006) Andrew Koppelman, Same Sex, Different States: When Same-Sex Marriages Cross State Lines (Yale University Press 2006) Brian Tamanaha, Law as a Means to an End (Cambridge University Press 2006) Sanford Levinson, Our Undemocratic Constitution (Oxford University Press 2006) Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge University Press 2006) Jack M. Balkin, ed., What Roe v. Wade Should Have Said (N.Y.U. Press 2005) Sanford Levinson, ed., Torture: A Collection (Oxford University Press 2004) Balkin.com homepage Bibliography Conlaw.net Cultural Software Writings Opeds The Information Society Project BrownvBoard.com Useful Links Syllabi and Exams |