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 Judge Alito and the Concerned Alumni of Princeton Justice O'Connor to the rescue? Ayotte Luban and the real debate about torture The "Deemed Export" Rule and the First Amendment Will The Threads Start To Unravel? Padilla Indicted New Orleans in the Spin Cycle CIA "Enhanced Interrogation Techniques" Revealed The BOGSAT anxiety and the Rule of Five Social Movements and Constitutional Change Nuremberg at Sixty: Is Jackson's Poisoned Chalice Now at Bush's Lips? The Assumption that Judging On the Supreme Court (and Elsewhere) is Politics Advice to Thurgood Marshall Why Habeas at GTMO is So Important Confusing Developments Senate-Side on GTMO Detention, Commissions and Habeas Tipping is un-American? No Need to Fret About Waterboarding: It's Merely a Psychological Ploy Hamdan, Rasul, et al., Imperiled
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Wednesday, November 30, 2005
Judge Alito and the Concerned Alumni of Princeton
Marty Lederman
There's a good deal of discussion recently about Judge Alito's membership twenty years ago in the Concerned Alumni of Princeton, a group apparently devoted to the retention of quotas that had long excluded women and minorities from Princeton. Justice O'Connor to the rescue?
JB
The oral arguments for Ayotte can be found here and here. The liberal justices gave both Ayotte and the Solicitor General a hard time; Chief Justice Roberts wanted to throw out the challenge and have doctors bring a brand new "pre-enforcement as-applied challenge" that would test the constitutionality of New Hampshire's lack of an emergency health exception. The liberal Justices wanted to know what the difference was between that case and the present one, other than changing the plaintiff's name. (In fact, since the doctors, like Planned Parenthood, would be invoking third party standing, and because they would be bringing the challenge before any emergency had actually occurred, it's hard to see what the difference would have been. The real difference, one assumes, is the kind of relief that could be offered-- total invalidation versus partial invalidation-- but, as I shall describe in a moment, several of the Justices didn't think that there should be a difference even with respect to that question.). The most important moment came during Planned Parenthood's argument when Justice O'Connor said in the exasperated tone that usually indicates which way she is going to come down on a case (at about 5:40 in the second mp3 file): "What resulted here was the invalidation of the entire statute and all of its applications. . . . So the question you're being asked is how can that be narrowed... The statute may well have a majority of valid applications, and what of our doctrines allow a narrower application. Obviously it's a matter of concern." The discussion that followed among the Justices concerned how to remand the case to the 1st Circuit so as to authorize it to issue a narrower injunction that would hold the statute inapplicable to situations where a doctor in good faith believes that there is a medical emergency that gives insufficient time to engage in a judicial bypass of the parental notification requirement. That is, they wanted to know how to send the case back down to keep the statute in place but hold it inapplicable to certain situations. From Justice Breyer's remarks, it looks as if a majority of the Court was warming to the task: Salerno wouldn't apply precisely, but courts in situations like that in Ayotte would be authorized to issue injunctions that got rid of certain applications of a statute while leaving the rest of the statute enforceable. It would be an ad hoc pragmatic sort of doctrine, not quite a full facial challenge, and not quite a traditional as-applied challenge, whose parameters are wildly uncertain, just the sort of thing that Justice O'Connor likes. If the liberals go along with reversing and remanding, the conservatives surely will too, albeit for different reasons. So it looks right now as if Planned Parenthood loses the case to the extent that it goes back to the 1st Circuit, which will be instructed to consider how and whether to issue a narrower injunction. But if Justice O'Connor gets her way, Planned Parenthood will also win, because it will be allowed to ask the 1st Circuit for an injunction that holds the statute inapplicable to health emergency situations. Moreover, Planned Parenthood has additional challenges to the statute which it now may raise again, and so it's possible that the 1st Circuit could get rid of other parts of the statute (or even the whole thing) on those other grounds that it didn't find it necessary to reach in the previous round of litigation. So everbody wins and everybody loses-- a classic O'Connor result. It will be quite interesting to see whether O'Connor can cobble together one last majority and get the opinion written and handed down quickly before she leaves. Of course, if she can get Justice Kennedy and the four liberals to go along with her pragmatic solution, her vote won't be necessary, and the case can come down later. Ayotte
JB
Today the Supreme Court will take up Ayotte v. Planned Parenthood of Northern New England, its first significant abortion case in five years. On the surface, the case concerns whether New Hampshire's parental notification law must include an exception for emergencies when a minor's health is at risk. Beneath the surface, however, are two key issues that will determine the direction of abortion regulation in the future. Earlier cases from Roe onward have held that states must allow women to preserve their health when it is threatened, even in the late stages of pregnancy; Stenberg v. Carhart, the 2000 case that struck down Nebraska's partial birth abortion statute, holds that states may not require women to adopt less safe methods of abortion when professional medical opinion holds that a safer method is available. From these precedents, it might seem that New Hampshire must include an exception from parental notification requirements where there is a health emergency as diagnosed by a competent physician. Were the Supreme Court nevertheless to uphold the New Hampshire law, one way it might do so is by changing the doctrinal understandings of the importance of health, or by offering a narrow view of what types of health risks implicate the abortion right. That decision, in turn would have significant implications for future abortion regulations that make limited or no exceptions for a pregnant woman's health, that trade off health concerns for other goals, or that require women to adopt less healthy methods for terminating their pregnancies. In particular, such a change in constitutional doctrine might affect the constitutionality of the 2003 Federal Partial Birth Abortion Act. That act includes a declaration by Congress that partial birth abortions are never safer than other methods, but that conclusion is disputed within the medical profession. See my earlier discussion here. The second, more technical issue in Ayotte is what plaintiffs have to show to get an injunction against a newly passed abortion statute. The Supreme Court's 1992 Casey decision suggests that if a new abortion law poses an undue burden to some signficant class of women to whom the regulation applies (or as the Court put it, "it operates as a substantial obstacle" to a "large fraction" of the cases to which the regulation is "relevant"), a court may enjoin it immediately. That is what the Supreme Court itself did in Casey with Pennsylvania's spousal notification provision. The Attorney General of New Hampshire argues that the correct procedural rule is the rule of United States v. Salerno-- that when plaintiffs bring facial challenges to enjoin a new statute, the court should reject the challenge unless the statute has no constitutional applications. Salerno was a 6-3 decision upholding a federal statute that allowed detention of criminal suspects awaiting trial. Because the pre-trial detention statute had at least some constitutional applications, a facial challenge (and an injunction) were inappropriate. If the Court applied the Salerno rule to abortion cases, it would mean that plaintiffs could not directly challenge new abortion regulations as soon as they were passed. Instead, a series of plaintiffs would have to go to court and prove that the law was unconstitutional as applied to their individual circumstances. This process would be time consuming and expensive, and it would take years to produce a jurisprudence limiting the statute's unconstitutional reach. Thus, the effect of applying Salerno (as opposed to what the Court actually did in Casey) would be to allow states to pass significant restrictions on abortion and keep them in force for long periods of time until a series of time consuming and expensive cases gradually eliminated their unconstitutional features. Indeed, precisely because creating an appropriate factual record for an individual as-applied challenge by a pregnant woman may be time consuming and expensive, the series of suits may never be brought, with the result that a whole host of abortion limitations that are actually invalid under the undue burden test will remain in force and will be applied to limit women's right to abortion. Applying Salerno to abortion litigation, in short, would drain much of Roe's and Casey's practical applicability to the real world. And because this will be achieved through an abstruse and technical doctrine of court procedure, many members of the public will not even realize that Roe and Casey have been effectively gutted. For these two reasons, but particularly, the second, Ayotte promises to be a major abortion decision. Sunday, November 27, 2005
Luban and the real debate about torture
JB
David Luban's article in today's Washington Post is an excellent summary of key issues in the debate about torture. Here is the introduction: Real intelligence gathering is not a made-for-TV melodrama. It consists of acquiring countless bits of information and piecing together a mosaic. So the most urgent question has nothing to do with torture and ticking bombs. It has to do with brutal tactics that fall short -- but not far short -- of torture employed on a fishing expedition for morsels of information that might prove useful but usually don't, according to people who have worked in military intelligence. After Time magazine revealed the harsh methods used at the Guantanamo Bay detention facility to interrogate Mohamed Qatani, the so-called "20th hijacker," the Pentagon replied with a memo describing the "valuable intelligence information" he had revealed. Most of it had to do with Qatani's own past and his role in the attacks of Sept. 11, 2001. Other parts concerned al Qaeda's modus operandi. But, conspicuously, the Pentagon has never claimed that anything Qatani revealed helped it prevent terrorist attacks, imminent or otherwise. The real torture debate, therefore, isn't about whether to throw out the rulebook in the exceptional emergencies. Rather, it's about what the rulebook says about the ordinary interrogation -- about whether you can shoot up Qatani with saline solution to make him urinate on himself, or threaten him with dogs in order to find out whether he ever met Osama bin Laden. And the trouble is that this second debate is so wrapped up in legalisms, jargon and half-truths that it is truly hard to unravel. The most recent issue is Arizona Sen. John McCain's amendment to a defense appropriations bill, designed to plug loopholes in current anti-torture law. It has passed the Senate, and the House is scheduled to vote on it sometime next month. President Bush has responded that we do not torture, we treat prisoners humanely, and we follow our legal obligations. But what, exactly, are the politicians arguing about? A Nov. 18 ABC News report quoted former and current intelligence officers and supervisors as saying that the CIA has a list of acceptable interrogation methods, including soaking naked prisoners with water in 50-degree rooms and making them stand for 40 hours handcuffed and shackled to an eyebolt in the floor. ABC reported that these methods had been used on at least a dozen captured al Qaeda members. All these techniques undoubtedly inflict the "severe suffering" that our law defines as torture. Consider the cases of Abed Hamed Mowhoush and Manadel Jamadi. Mowhoush, an Iraqi general in Saddam Hussein's army, was smothered to death in a sleeping bag by U.S. interrogators in western Iraq. Jamadi, a suspected bombmaker, whose ice-packed body was photographed at Abu Ghraib, was seized and roughed up by Navy SEALS in Iraq, then turned over to the CIA for questioning. At some point during this process, according to an account in the New Yorker magazine, someone broke his ribs; then he was hooded and underwent "Palestinian hanging" until he died. The CIA operative implicated has still not been charged, two years after Jamadi's death. And the SEAL leader was acquitted, exulting afterward that "what makes this country great is that there is a system in place and it works." He got that right. Shamefully, it is a system that permits cruel, inhuman and degrading treatment, smudges long-standing lines about what is and is not permitted in routine interrogations -- and then expresses hypocritical horror when soldiers and interrogators cross the blurry line into torture and murder. Saturday, November 26, 2005
The "Deemed Export" Rule and the First Amendment
Marty Lederman
The New York Times reports this morning that the Commerce Depatment is on the verge of promulgating new regulations restricting the ability of U.S. institutions, including universities, to expose foreign students to "sensitive technology." Thursday, November 24, 2005
Will The Threads Start To Unravel?
JB
This New York Times article confirms something I suspected as soon as Padilla's indictment was announced. The Bush administration is desperate to avoid accountability on its detention and interrogation policies not because of what it may need to do in the future but rather because of the illegality of what it has already done. As a result, Administration officials dropped any mention of the previously touted "dirty bomb" plot against Jose Padilla, because prosecuting that theory would lead to inquiries about what exactly it had done to get the information that formed the basis of the accusation. "They took him to Morocco to be tortured," said Clive A. Stafford Smith, the lawyer for the suspect, Binyan Mohammed. "He signed a confession saying whatever they wanted to hear, which is that he worked with Jose Padilla to do the dirty bomb plot. He says that's absolute nonsense, and he doesn't know Jose Padilla." It seems that the Administration's decision to flout the Constitution and the rule of law has come home to roost. The Administration assumed all along that it was entitled to do whatever it wanted, and that no one should object, because, after all, it was fighting evil. But the best way to fight evil is not to do evil yourself. And what about Padilla's own treatment while in military custody? "There's no way you could use what he said in military custody against him," a former senior government official said. Statements in the district court litigation in New York suggest that Padilla was subjected to psychological techniques designed to break him; indeed, the Administration initially argued that he could not be given a right to see an attorney precisely because it would undermine the effectiveness of those techniques. See Padilla ex rel. Newman v. Rumsfeld, 243 F. Supp. 2d 42, 46, 50 (SDNY 2003). If so, it is worth knowing what sort of techniques were used. Are the threads of the Administration's coverup starting to unravel? Stay tuned. Tuesday, November 22, 2005
Padilla Indicted
JB
Today the U.S. government formally indicted Jose Padilla, an American citizen arrested in the United States who had been held as an enemy combatant for three years outside the reach of the criminal justice system. Originally the Justice Department claimed that Padilla had planned to detonate a "dirty bomb" (i.e., one that would explode radioactive nuclear waste) in the United States. Later the Justice Department changed that to an allegation that he planned to set fire to (or blow up) an apartment building in Chicago. In today's indictment, the Justice Department alleges neither act; instead it claims that Padilla had traveled abroad to become "a violent jihadist" and that he had conspired to send "money, physical assets and new recruits" overseas to engage in acts of terrorism." Since 9/11 the Bush Administration has sharply criticized others for daring to suggest that citizens accused of terrorism should be dealt with through the criminal justice system. It has insisted that 9/11 changed everything and that terrorism must be dealt with through novel methods that dispense with the ordinary protections that the Constitution affords the accused. Now it has backtracked in one of the most prominent cases and done precisely what it said it could not do-- treat Padilla as a criminal defendant. The reason is not difficult to discover. The Administration counted votes and figured that even with a replacement for Justice O'Connor, it would likely lose in the Supreme Court. (The four dissenters in Rumsfeld v. Padilla thought Padilla was unconstitutionally confined, while Justice Scalia, who joined the majority, made clear that the September 18, 2001 Authorization for the Use of Military Force did not justify detaining a U.S. citizen, because the AUMF was not a legitimate suspension of the writ of habeas corpus). By indicting Padilla now, The Bush Administration moots Padilla's appeal to the Supreme Court. It also leaves standing the Fourth Circuit's decision in the Padilla case, which broadly upheld the President's power to detain U.S. citizens like Padilla as unlawful combatants. (See Marty Lederman's post here for an analysis). That result is particularly worthy of note, for the Fourth Circuit opinion may yet come in handy if the Administration needs to hold another U.S. citizen within the geographical boundaries of that circuit. The Administration now knows that the Fourth Circuit is a Constitution-free zone. It can, if it needs to, declare someone an enemy combantant, thrown them into a military prison, and interrogate them at its leisure. It will take years for a citizen to exhaust his appeals and reach the Supreme Court; and when the citizen finally gets to the Supreme Court, the Administration has the option to indict and moot the case (as it did with Padilla) or, if the Court's personnel have changed sufficiently in the interim, risk an appeal to the Supremes. You may recall that, following the Hamdi decision last year, the Administration decided not to give Yaser Hamdi a hearing, but instead released Hamdi to Saudi Arabia, extracting in return a surrender of Hamdi's U.S. Citizenship and a promise that he would not sue. Now it has indicted Padilla to avoid facing a simliar rebuff by the U.S. Supreme Court. In both cases, the Administration argued that that it was of the utmost necessity to detain them indefinitely and that it could not give these men the constitutional protections ordinarily afforded criminal defendants without severely damaging national security. These assertions now ring hollow-- Hamdi is free, and Padilla is in the criminal justice system. The Padilla case is a sobering lesson in how much leeway the President has to imprison and detain people for long periods of time in violation of the Constitution. The fact that the government's story about why Padilla was a threat has changed so frequently should give us pause the next time the government asserts that we should trust it when it rounds up U.S. citizens and claims the right to hold them indefinitely for our protection. Padilla may well be a very bad fellow, but we have a method of dealing with such bad fellows. It is called the rule of law, and we should not surrender it so readily merely because the President desires it. Monday, November 21, 2005
New Orleans in the Spin Cycle
Anonymous
The last few days of the media cycle have not been kind to New Orleans. Locals spent today complaining about the “60 Minutes” report last night that had the city turning into an island surrounded by the Gulf of Mexico in perhaps 80 years. The report did indeed have some problems. It tended to equate the coastal erosion problem with the breach of the levees, two different events. It passed over experts and a National Academy of Sciences report suggesting that the eroding coast could be restored to an extent. But it did highlight a point of view that citizens here thought would never turn up in a reasonable public debate – that the city ought not to be rebuilt, at least not on anything like the same scale. CIA "Enhanced Interrogation Techniques" Revealed
Marty Lederman
On Friday, ABC News broke a very important story; and yet it seems that no one has noticed (or perhaps no one cares). The BOGSAT anxiety and the Rule of Five
Ian Ayres
In modern military jargon, “to bogsat a problem” means to informally discuss and kick around possible solutions. The term is an acronym for “bunch of guys sitting around a table.” Social Movements and Constitutional Change
JB
A draft of my new article on social movements and constitutional change is up on SSRN. It was originally given as the Donahue Lecture at Suffolk Law School. Here's the abstract: Social movements have two basic strategies for influencing constitutional interpretation. First, they can exert influence on the major poltical parties who control the system of judicial appointments. Influencing judicial appointments increases the chances that the movement's constitutional claims will receive a sympathetic ear. Instead of convincing existing judges, this strategy attempts to replace older judges with newer ones more likely to share elements of the movement's basic outlook and ideology. Second, social movements can attempt to change public opinion, and especially elite opinion. This strategy attempts to convince judges already on the bench by appealing to the values they share with other relatively affluent, educated legal elites. Appeals to elite opinion are risky, however, because they encourage populist reprisals and countermobilizations led by political entrepreneurs. Without sustained popular support, social movement victories may not prove lasting. The article applies this analysis to the New Departure, a period immediately following the ratification of the Fourteenth Amendment when the movement for woman suffrage attempted to persuade judges and politicians that the Fourteenth Amendment gave women the right to vote. The New Departure failed because it was not able to adopt either of the two strategies described above. The case of the New Departure suggests that social movements are most likely to receive protection from the federal judiciary when they are already influential in the political process. Sunday, November 20, 2005
Nuremberg at Sixty: Is Jackson's Poisoned Chalice Now at Bush's Lips?
Scott Horton
For the last twenty years, it’s been common practice among law professors to view modern human rights law, and in a sense the entire international law system, as something that started with the gavel that convened the first of the Nuremberg criminal tribunals. That gavel fell sixty years ago today. These tribunals gave force to the concept that international law was not just about relations between nations. International law also created obligations for individuals, who could be subject to trial and severe sanction. America was the most aggressive proponent of this course, and the American prosecutor, Justice Robert Jackson, was extremely conscious of what this meant for his country. “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.” Friday, November 18, 2005
The Assumption that Judging On the Supreme Court (and Elsewhere) is Politics
Brian Tamanaha
Everywhere you look it seems to be almost taken for granted that the personal values or political views of judges have a determinative impact on their decisions. That is the assumption behind the daily search to dig up and scrutinize anything that might bear on Judge Alito's political views. Thursday, November 17, 2005
Advice to Thurgood Marshall
Mark Graber
Dear Thurgood: Wednesday, November 16, 2005
Why Habeas at GTMO is So Important
Marty Lederman
A remarkable post over at Obsidian Wings. Read it . . . and then ponder the fate of those (and other) wrongly identified, i.e., non-terrorist, detainees, if the Graham/Levin habeas-stripping compromise is enacted into law.
Tuesday, November 15, 2005
Confusing Developments Senate-Side on GTMO Detention, Commissions and Habeas
Marty Lederman
(Cross-posted in part at SCOTUSblog.) Monday, November 14, 2005
Tipping is un-American?
Ian Ayres
My ties to tipping continue. Saturday, November 12, 2005
No Need to Fret About Waterboarding: It's Merely a Psychological Ploy
Marty Lederman
OK, it's the Wall Street Journal editorial page, so one has to expect that nothing's beyond the pale. But still. Today's apologia for torture is a bit much. Friday, November 11, 2005
Hamdan, Rasul, et al., Imperiled
Marty Lederman
Cross-posted from SCOTUSblog.
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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 |