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 Three of the Most Significant Problems with the "Compromise"
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Friday, September 22, 2006
Three of the Most Significant Problems with the "Compromise"
Marty Lederman
Here's the Agreement Upon Common Article 3. And here's the Agreements on Classified Information, Self Incrimination and Coercion, and Hearsay, in military commission trials. Here's the bill as introduced.
Comments:
One additional avenue of attack on these provisions would seem to be at least theoretically possible. Perhaps it's time to re-think the "later in time" rule for resolving conflicts between treaties and statutes under the Supremacy Clause.
The international tax community has done a fair amount of grumbling over the years over revisions to the Internal Revenue Code that appeared to contravene the United States' obligations under one or more bilateral income tax treaties. However, no straight-forward challenge ever emerged. Perhaps now that the stakes will be more than merely monetary, someone will perceive themselves as having a reason to challenge this particlar piece of conventional wisdom.
Given Marty's analysis, and having worked through the onion layers of definitions myself, I now understand how this compromise likely excludes from the sanctions of the War Crimes Act several harsh physical techniques such as induced hypothermia and enforced standing.
In the context of the negotiation, did not the original Warner-McCain-Graham standard have a similar effect? (See Marty's comments about that bill here.) I do see that the new language, once the definitions are traced back to such dependencies as actual or threatened "bodily injury," allows such things more explicitly without triggering the War Crimes Act. But does anyone really think these negotiations were about whether or not we actually would criminalize such acts? Graham in particular has always talked about protecting officers from prosecution. With respect to cruel treatment short of "torture," both the original administration bill and the original Warner-McCain-Graham bill depended on general standards articulated in the 2005 McCain amendment, which in turn rest on the "shocks the conscience" criterion, which OLC apparently has interpreted expansively. It seems to me that the only stake that Warner, McCain and Graham actually put in the ground was that the standards of Geneva itself should not be reinterpreted. That is a more abstract legal issue, on which they did prevail. The question of defining criminal violations in the U.S. War Crimes Act has always been a different question. This act did not even exist before 1996, right?
All of this can't be good, but it seems like something obvious is being missed: What about extraordinary renditioning?
the architects of these "standards" ought to be FORCED to create "OK" and "NOT OK" lists, down to specific acts and techniques... that is the ONLY way anyone will ever be held accountable... this intentionally vague language is worthless for preventing torture...
I long for the good old days. Surely the CIA always tortured prisoners, but we never new about. And if they got caught oh well your on your own. (Re The Unit)
I truly feel this administration Fuc== up everything it touches. The can't shoot staight gang right out of HELL.
JaO,
Only the McCain bill would have amended the so-called "shocks the conscience" language to the War Crimes Act. That would at least allow the courts to pass judgement on whether those words cover Cold Rooms (assuming a criminal prosecution was conducted). Although the compromise bill does not explicitly alter Geneva, I would not call that a victory. Unlike the McCain bill, the President can alter Geneva and the courts cannot weigh in. Finally, there is a good faith argument that sometimes we should not follow a strict interpretation of Geneva. It may be worth it to expose our own non-uniformed agents to similar measures if we use rought treatment only when many people (oversight) agree it is justified in the name of uncovering an attack.
(other than pain or suffering incidental to lawful sanctions)
Yeah. As I suspected. They can't beat a confession out of the suspect, but if they "have to use force" to "ensure prisoner compliance", as a "lawful sanction", well... they just told the detainee to stand for 24 hours; the beatings were because the detainee wouldn't follow orders, not part of the interrogation.
Isn't this all just sashaying around the question of exactly how much torture is indeed "torture"?
You know, I don't like peeking in other people's bedrooms, and I really don't want to know exactly how much inhumane treatment would "shock [their] conscience". I think that should be legally irrelevant on any free but civilised society. Cheers,
Foreclosing a private right of action is perfectly legitimite. Many, many laws that are designed to protect people do not allow for a private right of action by those people. The exclusive remedy for "protection" is congressional review or independent suit by an independent counsel of the executive branch or regulatory agency. This is not new at all. Furthermore, the Geneva Conventions do not require it, nor does the US Constitution. Allowing private lawsuits against the Government is strictly the privilege of Congress, which appropriately declined to allow al-Qaeda to sue the Government. This is entirely an appropriate policy choice by the Congress.
First of all,
All the stuff Rosa Brooks mentioned ALREADY has happened to our gusya nd has been happening for years. Ask John McCain what happened to him and his buddies in Nam. WHat do you thin khappened to the hostages in Lebanon and the US Embassy in Tehran. To US prisoners of the Chinese and NoKors in Korea. To the guys captured during the Gulf War. The Geneva Conventions have NEVER protected out guys in the past an dit's foolish to think the ywill in the future. Further, all those things are things we ALREADY do to our own guys during training exercises. Please to think that cold rooms, standing up, slapping and the like is torture is absurd. Torture is when the Egyptians hook you up to the rack and stick cattle prods on your testicles. It's when drops sulfuric acid on you,. It's what they do in Jordan, Syria, China, etc... And if we did it I'd be perfectly fine with it. Here's one question liberals never answer. How do YOU propose to get information. And based on the Brian Ross ABC report and other rep[orts, the current tactics HAVE worked. KSM spilled the beans. Abu Zubaydah and BinAlshibh and others gave it up. Not everything they said turned out, but a lot of it did and we have repaed the benfits and saved lives. Let's say you've captured KSM. You know he knows things. What do YOU do? Do you just ask him nicely and if se says no, then that's it. You can just ask him his name, his age and his serial number? You have to give him a lawyer? WHat is the liberal startegy for interrogation and how will it work?
Here's how Rosa Brooks starkly makes the point:
Take any of the "alternative" methods that Bush wants to use on U.S. detainees and imagine someone using those methods on your son or daughter. If the bad guys captured your son and tossed him, naked, into a cell kept at a temperature just slightly higher than an average refrigerator, then repeatedly doused him with ice water to induce hypothermia, would that be OK? What if they shackled him to a wall for days so he couldn't sit or lie down without hanging his whole body weight on his arms? What if they threatened to rape and kill his wife, or pretended they were burying him alive? What if they did all these things by turns? Would you have any problem deciding that these methods are cruel? To start, many of the techniques referred to above are not legal under the compromise definitions of grave violations of the Geneva Conventions. Let us stick to the subject at hand without red herrings muddying up the discussion. Instead, let use as an example the most severe coercive interrogation technique approved by the government - water boarding. The definition of torture being adopted in this proposed legislation is nearly identical to the amended definition of torture to which the US agreed to in the Torture Convention - the intentional infliction of severe pain. Although this has been the subject of debate, I cannot see how the panic inflicted by water boarding is the equivalent of severe pain. Therefore, despite Senator McCain's protestations to the contrary, let us assume that water boarding does not fit under the proposed definition of torture under this agreement. Now, let us reframe the question in context. Unless your son or daughter is a foreign all Qaeda terrorist in the business of murdering our citizens, then that comparison is inapposite. Different persons have different rights. We grant our citizens, not foreign enemy combatants, constitutional rights. Historically, enemy combatants fighting in civilian clothing were summarily executed on the battlefield. There were never trials. Due process consisted of a battlefield determination that the subject was in fact an enemy combatant rather than a civilian. With all of this in mind, I would pose the following question to American voters: The interrogation technique of water boarding simulates the sensation of drowning and causes severe panic in the people subject to this technique. However, it has also been used successfully to force al Qaeda leaders like Khalid Sheik Muhammad to disclose the identity or several other al Qaeda leaders and to disclose several future plots to commit the mass murder of American citizens. Should Congress ban the technique of water boarding as too cruel to be used to interrogate captured al Qaeda detainees captured in the future? Do you want to guess what percentage of voters would answer "yes" to that question? The definition of torture is largely in the mind of the beholder and, in the end, is a policy decision to be made by our elected representatives. After a review of the rules laid out in this compromise, I can say with confidence that these interrogation limits are far more restrictive than those the average American would permit.
Foreclosing a private right of action is perfectly legitimite. Many, many laws that are designed to protect people do not allow for a private right of action by those people. The exclusive remedy for "protection" is congressional review or independent suit by an independent counsel of the executive branch or regulatory agency. This is not new at all. Furthermore, the Geneva Conventions do not require it, nor does the US Constitution.
The UN Convention Against Torture, signed by President Reagan, does require that signatories permit a private right of action: "Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given. Each State Party shall ensure in its legal system that the victim of any act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation." Allowing private lawsuits against the Government is strictly the privilege of Congress, which appropriately declined to allow al-Qaeda to sue the Government. This is an uncommonly silly statement. Nobody has suggested that "Al Qaeda" has any right of action. Victims of torture, on the other hand, SHOULD have such a right. In light of your post, you might want to change your posting name to something more appropriate. I suggest "Madame Dufarge".
Bart,
There may be consensus (see here and here) that while waterboarding is not torture, it is Cruel or Inhuman Treatment that would be prohibited when this compromise amends the War Crimes Act.
The more interesting legal question about waterboarding is not whether it is "torture," as Bart's strawman suggests, but whether it is "cruel or inhuman treatment" -- torture-lite, in the vernacular.
Of the various torture-lite practices reported to occur, waterboarding seems to be a practice that arguably does fall under the compromise definition. There are persistent reports that McCain believes that it does. But other practices -- including wrist-shackling a prisoner in a stressed, standing position for 40 hours, or inducing hypothermia by holding a naked prisoner in a frigid cell and dousing him with cold water -- seem likely not to be covered even as "cruel or inhuman treatment" under the compromise definitions.
Where does the section 8 (c), prohibition against cruel, inhuman and degrading treatment, fit in this? It is not part of the 8(b) definitions and is broader. Also, as a stand alone Federal law, it would not appear to be subject to the jurisdictional limits of Section 7. What am I missing, other than the lack of an enforcement mechanism?
JoshR:
There may be consensus (see here and here) that while waterboarding is not torture, it is Cruel or Inhuman Treatment that would be prohibited when this compromise amends the War Crimes Act. I am not seeing how. The proposed definitions for "torture" and "cruel and inhuman treatment" are nearly identical: (A) TORTURE.—The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind. (B) CRUEL OR INHUMAN TREATMENT.—The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.
FYI, I just heard Fox News report that McCain said today waterboarding is forbidden by the agreement. The paraphrased statement was attributed and on-the-record, but not on-camera.
GLN,
Section 8a1 specifies the scope of section 8c: it specifies acts which are prohibited by Common Article 3 but are not prohibited by the War Crimes Act. Thus, Section 7 stops any judicial remedy for violating 8c.
Quote:
------ (other than pain or suffering incidental to lawful sanctions) Yeah. As I suspected. They can't beat a confession out of the suspect, but if they "have to use force" to "ensure prisoner compliance", as a "lawful sanction", well... they just told the detainee to stand for 24 hours; the beatings were because the detainee wouldn't follow orders, not part of the interrogation. # posted by LongHairedWeirdo : 2:24 PM ------ Yes. Nothing in the "compromise" appears to define the parenthetical, leaving us to speculate about its intent. And the "compromise" makes it more difficult to refute an executive definition like the one you fear by by eliminating the right to invoke Geneva, and by prohibiting courts from considering Geneva precedent (and all other international and foreign precedent) when interpreting the parenthetical. Finally, the "compromise" broadly delegates to the President the power to "interpret the meaning and application of the Geneva Conventions." Courts may well view this as a reason to give great deference to a President's interpretation of the parenthetical. I think you've found the largest loophole in this bill.
Quote:
------ Ask John McCain what happened to him and his buddies in Nam. WHat do you thin khappened to the hostages in Lebanon and the US Embassy in Tehran. To US prisoners of the Chinese and NoKors in Korea. To the guys captured during the Gulf War. The Geneva Conventions have NEVER protected out guys in the past an dit's foolish to think the ywill in the future. ------ Obedience to Geneva often has been poor, but that doesn't excuse passing off misinformation as fact. In particular, none of the hostages Iran took in 1979 were assaulted, let alone tortured. Of course hostage-taking itself violates Geneva. It does seem that obeying Geneva ourselves gives our troops only marginal protection. However, I think codifying exceptions to Geneva will significantly worsen this picture, and will also tend to erode customary prohibitions on attacks on civilians (read: terrorism). Quote: ------ Here's one question liberals never answer. How do YOU propose to get information. And based on the Brian Ross ABC report and other rep[orts, the current tactics HAVE worked. KSM spilled the beans. Abu Zubaydah and BinAlshibh and others gave it up. Not everything they said turned out, but a lot of it did and we have repaed the benfits and saved lives. ------ Assuming, for the sake of argument, that the current tactics did yield benefits re: KSM et al, they also yielded much crap -- e.g., the al Libi "confessions" -- that were instrumental in driving us needlessly into Iraq. Based on the skimpy publicly-available record, coercive interrogation looks like a loss. And that's putting aside the morality issues. Quote: ------ Let's say you've captured KSM. You know he knows things. What do YOU do? Do you just ask him nicely and if se says no, then that's it. You can just ask him his name, his age and his serial number? You have to give him a lawyer? ------ You do the same things effective police officers do, including, of course, using feigned friendship and artful deception. As for "the ticking time bomb," which is the usual followup to the response I've given, what makes you think a tortured terrorist won't just lie and send you off on a wild-goose chase while the bomb ticks down to zero? He has no way out in any event, and he'd like to ensure that his bomb goes off. Why wouldn't he lie?
Although this law doesn't apply to domestic prisoners (say, somebody arrested for some sort of felony charge), it gives me the shivers to think about what it will mean in terms of an acceptable bar for treatment of prisoners here in the states.
After all, if none of this is cruel, inhumane, or unusual, what's to prevent this from eroding our own domestic, constitutionally provided-for protections? since it's just a matter of interpretation by the president?
This statute, if adopted, should likewise be the standard for every police department in the United States. It would be hypocritical to have anything more/better/less crueler domestically.
if someone did to my son or daughter what ms parks suggests, then i would shoot them in the head. but i don't suppose that's legal under the geneva convention, is it?
but if my son or daughter were a soldier, and i would expect them to be shot in the head, then it would be a welcome relief to know that they suffered, rather than died.
If you ask any normal person if they would want their son to live in a room 23 hours a day and only get 1 hour for exercise, they would call that cruel; however that is how we treat tens of thousands of prisoners in our domestic prisons, yet no one goes berserk about torture.
Vegetarians suffer tremendous mental anguish in our prisons because there is no such thing as a vegetarian diet available. I think you ask the wrong question. The question is, "your son or daughter is being held captive by Muslims who want to behead them and we think Hassan knows where they are being kept. What should we do to Hassan to get him to talk?" I'm afraid the same parents would have an entirely different, stark response to your question of what is proper torture. In fact, I have no doubt that they would say drilling a hole in Hassan's eye does not seem unduly cruel. Non?
Can you comment on whether you believe the legislation, if passed into law, would contravene the provisions of the Eighth Amendment which proscribes the infliction of cruel and unusual punishment?
Two meta-points, if you will:
1. I do not see, from a jurisdictional standpoint, how any "adjustment" of torture standards by Congress can stand up under international law, the laws of war or the Constitutional law. It is patently obvious the adjustments made in the new law are ad hoc and arbitrary and make no effort to show how they comport with the extensive web of existing law and precedent on this topic. Saying 2+2=5 does not make it so; and this is essentially what Congress has tried to do. For that reason, I think the entire thread of discussion that parses the new law is superfluous, dilatory and a waste of everyone's time. If I'm way wrong on this, please correct me. 2. The U.S. Supreme Court, when it reviews this new law for constitutionality, is going to focus on the massive and unprecedented jurisdictional issues this raises, not the parsing of what is torture and what is not. The jurisdictional and supremacy issues this law raises are 1,000 times more problematic than the torture vs. non-torture language. That's just salted peanuts for the rubes. The only real and important question here is under what authority can Congress legalize torture at all, regardless of how they define it. Not a single piece of law allows torture, period, not international law, the laws of war or the Constitution. The Administration's argument from day one has been that torture is allowed solely because "unlawful enemy combatants" fall outside any legal jurisdiction on the planet and therefore anything can be done to them. Pretty slim reed to hang a 1,000 pound anchor on.
The new law fails on the fundamental weakness of proving too much. The DOJ did this on the NSA spying case and Judge Anna Taylor nailed them on this issue. Taking their argument on its face, she found the DOJ saying the Executive is unbound by any law and found the argument severely wanting for authority. The torture law is based on the same fundamental flaw because it is based on exactly the same flawed reasoning and was probly cooked up by the same people.
The administration can cite no authority on the planet which deems human torture acceptable. All authorities which exist, in whatever jurisdiction one names, expressly and forcefully state the opposite. The only argument, therefore, is that none of these authorities "apply" in this specific set of circumstances. This is such an obvious shill. No legal principle exists to simply "create" a right to torture. The premise must be founded upon something, not a negative argument that it can arise solely because its specifics fall outside all known categories of "something." But apparently, thus far, this ridiculous argument is having its intended dilatory effect, based on material written here and elsewhere. It's stupid to argue the antecedents and conclusions if the premise itself has no foundation. In this case the premise has no foundation and the Administration already knows it. They are just making this garbage up off the top of their head to justify what they have already done. That turns the entire theory of law and sequence of logical analysis on its head. These guys have arrived at pre-determined conclusion and are now offering you a conceptual premise which magically supports it. What a surprise ! What a coincidence !
Although this law doesn't apply to domestic prisoners (say, somebody arrested for some sort of felony charge), it gives me the shivers to think about what it will mean in terms of an acceptable bar for treatment of prisoners here in the states.
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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 |