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 Padilla Indicted
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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.
Comments:
Pardon my rusty recollection re this particular nook of federal appellate jurisdiction, but couldn't Padilla and counsel continue the appeal as clearly "capable of repetition, yet evading review"? Seems to me a pretty transparent effort to deny Supreme Court review, just as you describe.
Is the case really moot? Has the government promised that it will not send him back to the brig if he is found innocent or they will not rearrest him after he serves a sentence?
Issues regarding the legality of his confinement are still relevant to any trial. It would be hard to claim he has been given a speedy trial after three years of delay. A remedy might be appropriate if the initial classification of enemy combatant was unconstitutional. And the bar for mootness is lower than that for standing.
Might Padilla be able to vacate the 4th Circuit's decision? See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 25 (1994)(noting general rule of vacatur where appeal is mooted as result of "unilateral action of the party who prevailed below").
Padilla has been indicted for actions that he took prior to joining the armed forces associated with Al Qaeda. About the last action attributed to him in the inditement is his enlistment in Afghanistan. Padilla has been held in military custody because he became an enemy combatant after all of the actions and time frame covered in the indictment. So actually these are two entirely different cases. He is charged as a criminal under domestic criminal law, and has been held as a POW under internation military law.
If the Geneva Convention applies to Padilla (and the Hamdan case depends on the assumtion that it may)then Article 84 would prohibit the transfer or remand of Padilla to face trial in a civilian court, even for acts that occured before his enlistment. Furthermore, the convention does not allow protected persons to waive its protection, even under legal advice. If the 4th Circuit is awake, they might hold up before approving the motion before them to transfer jurisdiction and clarify the prisoner's status. Is he now a non-combatant, a protected enemy combatant, or an unlawful enemy combatant whose transfer is permitted because he is not protected by the Geneva Convention. If so, why? The answers to these questions determine if the appeal is moot and what might happen after the criminal trial.
Can Padilla have the indictment dismissed on Sixth Amendment "speedy trial" grounds?
Would (or could) such a request be appealed up to the Supremes?
"Can Padilla have the indictment dismissed on Sixth Amendment "speedy trial" grounds?"
It's unlikely. The true "speedy trial" time period doesn't actually start until the defendant is indicted. It's possible to get a dismissal based on the pre-indictment length of time, but that involves a vague balancing test that defendants almost never win.
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's worse than that. They can arrest and detain anyone outside of the 4th circuit and transfer them to a military penal facility in the 4th circuit. Don't forget that Jose Padilla was originally held in New York. He was transferred to a brig in South Carolina to get away from New York judges--without giving his attorney a chance to object: After a month of detention in New York City, Padilla was transferred from civilian to military custody pursuant to an order, from President Bush to Secretary of Defense Rumsfeld, that identified Padilla as an “enemy combatant.” Padilla was transferred to a Navy Brig in Charleston South Carolina, where Commander Melanie Marr became his custodian. Two days later, on June 11, 2002, Newman filed a habeas petition in the district court of New York challenging the legality of Padilla’s detention. At the time, she did not know that Padilla had been transferred to military custody and was in South Carolina.
"At the time, she did not know that Padilla had been transferred to military custody." Curious because on the previous day Ashcroft held a press conference and said so. I go to library.yale.edu and check the online newspaper file for articles on Padillia on June 11, 2002. There are 656 and all mention that he was just transferred to military custody. Example headline: ASHCROFT SAYS; MAN ARRESTED MAY 8 AT O'HARE IS PLACED IN MILITARY CUSTODY
St. Louis Post-Dispatch, 11 June 2002, 1119 words, By Karen Branch-Brioso Post-Dispatch Washington Bureau.
Could the president issue an executive order declaring the attacks on 9/11 by those legally in this country constitute a Rebellion or Invasion and therefore Habeas Corpus has been suspended? No, just as congress declines to actually declare war, the administration would rather try to have its cake and eat it too.
Professor Balkin's analysis strikes me as the most pessimistic possible view of the case. It is true that Mr. Padilla has already been deprived of his freedom for three years. On the other hand he was not thrown in an oubliette and forgotten. His case received a lot of attention in the courts and in the public forum. Now he has what he asked for. The length of time it took is onerous. On the other hand, this is a novel and uncertain area of the law for the executive, the courts and the defense bar. The system worked slowly but it worked. In my view, the Congress and not the courts are to blame for the lack of clarity on the protection of American citizens on American soil -- to put it more strongly, I think it is a disgrace that we even need to mention the Geneva Convention in the context of American citizens arrested by American authorities. But the bottom line in Mr. Padilla's case is that it is not at all clear that he has been denied due process so far and he will have his chance in the trial court to demonstrate whether he has been treated unjustly.
One hundred percent right for those thinking along the lines of "Capable of repetition, yet evading review" - this case is the definition of that term if it ever had one. Remember, Roe was one of the (many) cases that enunciated that standard.
If the rule on vacating appellate opinions is the law - and I'm not sure one way or the other - the easy way for the S.Ct. to drop this hot potato is to issue a GVR - Grant Cert., Vacate Decision below (which makes the 4th circuit opinion like it never happened!), Remand to the District Court. Remember, the District Court wrote a scorching opinion in favor of Padilla. Called the gov't's actions Un-American and such. Once back in the District Court, Padilla can amend his complaint, too. You're not thinking of the obvious. He can now sue Bush and all the others for money damages, for false arrest, false imprisonment, all the other common law torts they committed against him by holding him incommunicado (and probably beating the stuffing out of him, mentally and physically) for three years. If he doesn't already have damages claims in his complaint. The beauty of that is in Clinton v. Jones coming back to bite the Republicans in the ass. Can you see a video dep of Bush, Rumsfeld, Ashcroft, Hanft, Padilla's interrogators, and all the rest? Sauce for the goose, on Thanksgiving. A good argument can be made that because the indictment is on different grounds than the reasons previously given for detaining Padilla, those prior grounds did not exist. The prior grounds would obviously be germane to a civil suit and, therefore, are (a) susceptible of being the proper subject of discovery and (b) not subject to abstention while the criminal case progresses. Apples and oranges the reasons are, says the government. Professor, there are times you should think like a lawyer hunting money (fling theories at the defendants, and one or more of them will slip somewhere), and not limit yourself to thinking like a law professor, looking for The One silver bullet argument.
An American citizen born in Norwich, CT steps from a boat onto the dock in New London. Is it possible that he is an enemy combatant? Could he be captured and held for years without charge? Could he be charged for a crime he committed before he became an enemy combatant?
If the date is Sept 6, 1781 then the person in question is Benedict Arnold. After fleeing West Point when his treason was discovered, he became a British Brigier General and on that day led an attack on New London that ended up burning the town to the ground. However, had he been captured then he certainly would have been an enemy combatant who could at least have been held as a POW without charge for as long as the war lasted. However, the US had a pre-existing charge of Treason to lay against him. Despite the fact that he would have been a British officer captured in uniform, could they have, as they are doing with Padilla, ignored his circumstances at capture and proceeded with a trial on the Treason charge from the previous year? That appears to be what international law prohibits. A soldier "belongs" to his unit and army and must be held in military custody until he is exchanged, paroled, or repatriated. The British would have had a legitimate cause to object if we decided to try a captured British officer for something he did before he joined their army. The same issue now surrounds the decision to try Padilla for a crime he allegedly committed before becoming a soldier.
Everyone seems to have overlooked the possibility that Padilla simply did some talking in exchange for a deal. Common criminals do it every day, and Jose Padilla certainly knows how.
Scribe, there is no cause of action personally against federal employees acting under color of federal law. Sovereign immunity. A claim for damages is allowed against the United States herself in its place. As somebody who has walked into a courtroom more than a few times, I would love to be the attorney defending such a claim before twelve jurors. Mr. Padilla is in no way a sympathetic plaintiff and he has no Fifth Amendment rights in a civil action he has initiated. I could probably get the jury to award me his organs for transplantation in my counter-claim for the costs of his arrest, incarceration and prosecution. Professor Balkin is hunting exactly where the ducks are -- the protection of American citizens from the power of the executive in the war against terror. I simply think that he is taking too pessimistic a view of our legal system and our government. To paraphrase Hamlet, "What is Padilla to Bush [although only Padilla knows what Bush is to Padilla]". Why should our government waste its resources on the harmless? I believe that the executive in good faith identified a danger to the people of the United States but the legal framework did not exist for its efficient and expeditious abatement within the protections we have come to take for granted as Americans. As I said in my previous coment, I blame the Congress.
To say that "the system worked slowly, but it worked" is an evasion of the realities that we don't yet know whether the system works in the Padilla matter or not; and insofar as it has worked to this point, this is because Padilla has attracted the services of legal representatives whose normal fees would have burned out this new defendant's financial resources a couple of years back.
This week's announcement by Attorney General Gonzales is only one more of several indications that the administration is uncertain of its constantly shifting ground in this case, and possibly, others. The newly revealed uneasiness about what the Supreme Court might rule -- consensus is that this is exactly what the Gonzales announcement means -- follows years of using the nation's financial resources to stall any prosecution of Padilla for as long as possible. This is not how confident prosecutors proceed. The Padilla case continues to remind one of the conversation between Alice and Humpty Dumpty in Through the Looking Glass. HD: ‘When I use a word, it means just what I choose it to mean—neither more nor less.' A: ‘The question is whether you can make words mean so many different things.' HD: 'The question is which is to be master — that's all.' This seems a close match to the current situation. Padilla's lengthy and unprecedented imprisonment suggests that the current administration has been the master to date. Appearance before the Supreme Court could settle public understandings about whether the master is, instead, the Constitution; and this is the understanding that the administration is at present trying to duck. cannot come before SuIt has use
Scribe, there is no cause of action personally against federal employees acting under color of federal law. Sovereign immunity.
Hello? Bivens? "Allowed a plaintiff to seek monetary damages from individual federal officers for their alleged violation of the plaintiff's rights arising under the Fourth Amendment to the United States Constitution," quoth Chemerinsky?
If Padilla can be imprisoned without charge for three years, none of us is safe. And I say this as a sometime Bush supporter. I am wondering where the outrage is (in the MSM)?
Please see Harlow v. Fitzgerald, 457 U.S. 800 (1982) for a very good overview of the application of absolute vs. qualified immunity to federal officials following Bivens.
"If Padilla can be imprisoned without charge for three years, none of us is safe."
The "he's a US citizen arrested in the US" fact that dissenters harp upon is accurate but misleading, since SCOTUS in 1942 drew the line slightly differently. Under ex parte Quirin, the fact that he was arrested upon entering the country is key. If that precedent did not exist, they could have arrested him before boarding, or redirected the plane; some difference. "A good argument can be made that because the indictment is on different grounds than the reasons previously given for detaining Padilla, those prior grounds did not exist." If you take bad faith as your premise, the "argument" will look good. On the other hand, if you presume the government is acting in good faith you will believe that the initial charges needed to stay out of open court for practical reasons such as not burning sources.
Nk, et al.
Re Bivens, Harlow and all those immunities. Fine, I acknowledge their existence and their force. I know the success percentages on a Bivens claim. I know how unsympathetic Padilla is and will be to a jury. All well and good. Now, please tell me what "color of law" these folks were acting under? What "color of law" was Ashcroft acting under when he defamed Padilla? Compare his conduct to Fitzgerald's in his Libby indictment press conference; which one comports more with DoJ guidelines for prosecutorial behavior? Was there some negligence here on the part of a government official? Can we move this into an FTCA area? Heaven knows we've seen the current administration have more than enough "oops!" moments in dealing with intelligence. The underlying points which will have to be made, and which I was trying to make are: (1) take a shot at these jokers. You'll likely lose, but you will certainly lose if you don't take the shot. (2) take some discovery. Make these jerks answer questions under oath. (3) think creatively and be aggressive. One can push the envelope, lose, and still win. The point is, if no one tries to even game out an aggressive strategy, the possibility of redress dies aborning.
Nk, et als.
On further reflection, the Fifth Amendment waiver on filing the civil suit is The Difficult Issue. I had simply forgotten that one. This gives me even greater chagrin, since I used that argument to get rid of a civil rights suit against my client. In fairness to myself it was more than five years ago, but I should have remembered telling the plaintiffs' lawyer "You're going to drop this case. If not, I'll take your client's deposition and, since my client is the prosecutor, not only is he entitled to be there, he's going to be feeding me questions. By the time the dep is over, your client will be looking at the business end of a needle." This does not, however, change my opinion on the aggressiveness counsel should exhibit....
Suppose Padilla goes to Florida, is tried and convicted of his pre-Afghan activities, and then is sent back to the superceeding military POW jurisdiction in Charleston. This way we allow Padilla to participate in the trial of the conspirators, but avoid the problems in International Law that would occur if a POW were transferred to a civilian prison.
Is the case moot? Not in the sense that the legal issues presented to the court in the cert petition have been resolved. However, the government has conformed both to the Trial Court insistance that Padilla be criminally charged (though technically it is a different charge for a different crime) and to the reversing 4th Circut decision that he can be held as an enemy combatant. The Supreme Court is being asked to review a decision overturning a summary judgement. If they don't hear the appeal now, it just returns the case to District Court for civil trial. The pending criminal trial in Florida may leave the civil legal issues unresolved, but it also undermines the argument that the civil case must be reviewed before trial. The Supreme Court may be more inclined to let both trials proceed and sort the mess out at the end.
It appears that the 4th Circuit is awake (see comment above). They didn't just roll over and permit the transfer of Padilla from military to civilian custody. As I suggested last week, they are ordering the Government to explain the legal basis for the transfer and Padilla's subsequent legal status. See scotusblog.com for details.
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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 |