Balkinization   |
Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The good of “religion in general.” No, Sam Brownback Doesn't Believe in Evolution A Review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," Part III Zelikow on "Legal Policy for a Twilight War" and an Alleged New Bush "Paradigm" Rationing Medical Care for the Poor Religion isn’t that good "Cool, Carefully Considered, Methodical, Prolonged and Repeated Subjection of Captives to Physical Torment, and the Accompanying Psychological Terror" A Review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," Part Two Politicizing the Selection of Immigration Judges One of Those Rare Instances in Which the Nazi Analogy is Unavoidable A Review of Bruce Ackerman's Holmes Lectures, "The Living Constitution", Part One Memorial Day Musings Is religion any good? Scientists prove that Adam Smith was right and that Dick Cheney is brain damaged The Constitutional Crisis Within
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Thursday, May 31, 2007
The good of “religion in general.”
Andrew Koppelman
In order to offer a coherent account of the religion clauses, I argued in an earlier post, it is necessary to define the Establishment Clause less abstractly than the Court has, in order to permit the special treatment of religion that is mandated by the Free Exercise Clause. I then argued that the answer is, as Justices Rehnquist, Scalia, and Thomas have suggested, that the state may promote “religion in general.” But, I argued, their solution needs modification, because their identification of religion with monotheism is naïve. Religion must be understood more abstractly than this. How ought this to be done? Religion is a category that is hard to delimit. Most of the best treatments of the problem of defining “religion” for constitutional purposes have concluded that no dictionary definition will do, because no single feature unites all the things that are indisputably religions. Religions just have a “family resemblance” to one another. In doubtful cases, one can only ask how close the analogy is between a putative instance of religion and the indisputable instances. Any solution to the free exercise/establishment dilemma that allows accommodations must permit the state, at some level of abstraction, to recognize the value of religion. Thus far Scalia is correct. In order to avoid the problem of sectarian preference, however, religion must be understood in a more abstract way than Scalia proposes. This difficulty can be handled in the following way. Begin with an axiom: The Establishment Clause forbids the state from declaring religious truth. One principal reason why it is so forbidden is because it is incompetent to determine the nature of this truth. This incompetence entails that the state may not favor one religion over another. It also bars the state from taking a position on contested theological propositions, such as whether God exists. (There is an exception for ceremonial deism, confined to public rituals of long standing whose religious content is sufficiently bland, but in its nature this exception cannot permit any new instances.) A second classic reason for barring the state from declaring religious truth is civil peace: In a pluralistic society, we cannot possibly agree on which religious propositions the state should endorse. The argument for government agnosticism is that, unlike government endorsement of any particular religious proposition, it is not in principle impossible for everyone to agree to it. Nonestablishment makes possible what John Rawls calls “civic friendship,” in which citizens share a conception of justice that all can reasonably be expected to accept, despite their widely differing moral, philosophical, and religious beliefs. A final reason for getting the state out of the religion business is that the individual’s search for religious truth is hindered by state interference. It is, however, possible for the state, without declaring religious truth, to favor religion at a very abstract level. The Court noticed this in Texas Monthly v. Bullock when it invalidated a law that granted a tax exemption to theistic publications, but not atheistic or agnostic publications. Justice Brennan’s plurality opinion thought that a targeted exemption would be appropriate for publications that “sought to promote reflection and discussion about questions of ultimate value and the contours of a good or meaningful life.” Justice Blackmun thought it permissible for the state to favor human activity that is specially concerned with “such matters of conscience as life and death, good and evil, being and nonbeing, right and wrong.” What is impermissible is for the state to decide that one set of answers to these questions is the correct set. The precise character of the good being promoted is itself deliberately left vague, because the broad consensus on freedom of religion would surely collapse if we had to state with specificity the value promoted by religion. “Religion” denotes a cluster of goods, including salvation (if you think you need to be saved), harmony with the transcendent origin of universal order (if it exists), responding to the fundamentally imperfect character of human life (if it is imperfect), courage in the face of the heartbreaking aspects of human existence (if that kind of encouragement helps), a transcendent underpinning for the resolution to act morally (if that kind of underpinning helps), contact with that which is awesome and indescribable (if awe is something you feel), and many others. The establishment clause permits the state to favor religion so long as “religion” is understood very broadly, forbidding any discrimination or preference among religions or religious propositions. This understanding makes it possible to defend accommodations without running into the free exercise/establishment dilemma. The state is recognizing the value of religion, but it is making no claims about religious truth. It is the making of such claims that violates the establishment clause. But it is possible to use the term “religion” intelligibly without making such claims. We don’t have a precise definition because we don’t want one. The vagueness is deliberate, and it is wise. No, Sam Brownback Doesn't Believe in Evolution
JB
Sam Brownback's essay in today's New York Times is an op-ed written by a skillful politician, trying to make the reader believe that he is merely attacking the materialistic and deterministic emphasis in science without doubting evolutionary processes, when in fact the real problem is that he just doesn't believe in evolution at all. The key passage is here: A Review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," Part III
JB
This is Part Three of my review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," 120 Harv. L. Rev. 1737 (2007), in which he revises his theory of constitutional moments. [You can read Part I here, Part II here, Part III here, and Part IV here.] Wednesday, May 30, 2007
Zelikow on "Legal Policy for a Twilight War" and an Alleged New Bush "Paradigm"
Marty Lederman
As noted below, the Times today reported on a lecture last month delivered by Philip Zelikow, Executive Director of the 9/11 Commission and, until recently, a close advisor to the Secretary of State. The lecture, entitled "Legal Policy in a Twilight War," was delivered at the University of Houston Law Center on April 26th and can now be read here. Rationing Medical Care for the Poor
Guest Blogger
Anne Alstott There is another sleazy game afoot in Washington, but this time both parties are complicit. The open secret is that Medicaid, the federal-state program that promises medical and dental care to poor children (among others), predictably fails to deliver promised services, because payment rates for providers are set at below-market levels. I have a piece in Slate discussing the horrific case of Deamonte Driver, a twelve-year-old Maryland boy who died for lack of dental care. Medicaid dental care is just one example of a formal entitlement that is undercut by below-market pricing. Economics 101 teaches that setting a price below the market-clearing level will produce a shortage. In that sense, the shortage of Medicaid dental care is not accidental – it is engineered. The Medicaid law uses the language of entitlement, and indeed, Deamonte was formally covered by Medicaid. But there is a disconnect between the concept of entitlement and the use of a market mechanism for allocating services. Markets don't understand entitlements; they understand pricing. My point isn't that rationing in any form should be condemned. Scarcity is omnipresent, and while I'd contend that redistributing resources to provide medical care to children is a social good, society has to fund other social goods as well. But hidden rationing permits political elites to engage in hypocrisy. The cynical corollary, of course, is that hidden rationing is pervasive in social welfare programs precisely because it has advantages for politicians. My visiting colleague, David Super, has an excellent 2004 article on hidden rationing in TANF and related programs. As he points out, "[s]ystems that lead to procedural denials of substantively eligible claimants, that discourage claimants from seeking or continuing to receive benefits, or that give third parties influence over whether a claimant will receive benefits also have a rationing effect." David's theme is that rationing in these ways shifts blame to individuals and makes their failure to access benefits a matter of personal choice: she didn't show up prepared for her fair hearing; he failed to submit his lease in triplicate by the first of the month; they refused to miss a day of work to wait in line all day to see a caseworker; and so on. Rationing in this way could in theory be benign, if the people who are filtered out are those for whom the benefits at stake are minimally valuable. But hidden rationing can also, perversely, screen out the most vulnerable – those unable to articulate their case at a hearing, or unable to understand complicated English paperwork, or frightened of being fired if they leave work for a day. In such cases it is the least advantaged who lose out. As I discuss briefly in the Slate piece, there are a number of possible solutions to the Medicaid dental coverage issue, including (obviously) setting payment rates at market levels. But thinking more broadly, one of the contributing pathologies is that government budgeting takes a libertarian form. The budget for Medicaid, TANF, or any other government program focuses on the outflow of "taxpayers' dollars." Politicians on all sides struggle to minimize budgetary cost, with the focus squarely on dollars spent and taxes raised. There is no reason to privilege the libertarian budget. An alternative form of budgeting might focus instead on services actually received by poor children in TANF or Medicaid. A services budget could reveal the level of care poor children actually receive (meals provided, trips to the doctor and dentist, and so on). To make the information intelligible, the measures might focus on gaps in the services received by poor children relative to a baseline of appropriate care. For instance, reading that fewer than a third of Medicaid children received any dental care at all in 2005 is a statistic that leaps out for any middle-class parent, who knows that their dentists expect to see every child twice a year. Today, this kind of information may or may not be available, but even when it is, it is left to advocacy groups to dig out the data and make their case. I am not naïve enough to suppose that a services budget could magically transform the libertarianism that underlies American social policy. But an alternative presentation could help disclose the gaps between nominal entitlements and real services. Posted 1:37 PM by Guest Blogger [link] (15) comments Religion isn’t that good
Andrew Koppelman
I argued in a previous post that, in order to offer a coherent account of the religious clauses, it is necessary to define the Establishment Clause less abstractly than the Court has, in order to permit the special treatment of religion that is mandated by the Free Exercise Clause. Among the members of the Supreme Court, Justice Scalia has pursued this strategy most assiduously. The solution he and others have proposed is to read both clauses at a much lower level of abstraction than the Court has read them. Justice Scalia, Chief Justice Rehnquist, and Justice Clarence Thomas have all suggested that the Establishment Clause should be read only to prohibit favoritism among sects, while permitting states to favor religion over irreligion. Of this group, Justice Scalia has offered the clearest formulation of the alternative rule: “[O]ur constitutional tradition . . . rule[s] out of order government-sponsored endorsement of religion . . . where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ).” Justice Scalia’s logic is powerful. He reasons as follows: The Free Exercise Clause singles out religion as such for special benefit. Therefore, it is not possible to coherently read the Establishment Clause as prohibiting the singling out of religion as such for special benefit. “What a strange notion, that a Constitution which itself gives ‘religion in general’ preferential treatment (I refer to the Free Exercise Clause) forbids endorsement of religion in general.” It must, then, be permissible for the government to favor religion as such. Accommodation, however, must not be sectarian; accommodations, if granted, must be extended evenhandedly to differing theisms. Thus Justice Scalia’s revision would free the Court’s reading of the religion clauses from self-contradiction. More recently, in McCreary County v. ACLU, dissenting from a decision barring one ceremonial display of the Ten Commandments, he frankly acknowledged that ceremonial theism would entail “contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs.” The Commandments “are assuredly a religious symbol, but they are not so closely associated with a single religious belief that their display can reasonably be understood as preferring one religious sect over another. The Ten Commandments are recognized by Judaism, Christianity, and Islam alike as divinely given.” Justice Stevens noted that “[t]here are many distinctive versions of the Decalogue, ascribed to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance.” Scalia (here joined by Rehnquist, Thomas, and Kennedy) retorted that “The sectarian dispute regarding text, if serious, is not widely known. I doubt that most religious adherents are even aware that there are competing versions with doctrinal consequences (I certainly was not).” Justice Scalia thus envisions a role for the Court in which it decides which articles of faith are sufficiently widely shared to be eligible for state endorsement (and in which judicial ignorance is a source of law!). Evidently, the state may endorse any religious proposition so long as that proposition is (or is believed by a judge unacquainted with doctrinal niceties to be) a matter of agreement between Judaism, Christianity, and Islam. It would, for instance, be permissible for the state to declare that Gabriel is the most important of the archangels. The interpretation of the establishment clause would then depend on the further development of the Moslem idea of the People of the Book – those who have received a revelation that is deemed (formerly by the Koran, now by the Supreme Court) to be reliably from God. Scalia’s solution will not work, because it discriminates among religions. Chief Justice Rehnquist thought that the establishment clause forbids “asserting a preference for one religious denomination or sect over others.” Justice Scalia agrees: “I have always believed, and all my opinions are consistent with the view, that the Establishment Clause prohibits the favoring of one religion over others.” Not all religions involve a belief in “a benevolent, omnipotent Creator and Ruler of the world.” Scalia’s formulation does discriminate among religions. Christians, Jews, and Moslems are in; Hindus, Buddhists, and atheists are out. And the outs are a lot of people. Justice Scalia defended his approach by noting that the monotheistic religions “combined account for 97.7% of all believers.” But it is difficult to see how statistics support endorsement at just the level of abstraction he proposes: official Christianity isn’t permissible, but official monotheism is. In a nation of 300 million, there are only 5,764,000 Jews, and 4,657,000 Moslems. There are 1,144,000 Hindus, 1,424,000 atheists, and 2,721,000 Buddhists. Will the Establishment Clause change when the number of Hindus and Buddhists approaches the number of Jews and Moslems? Scalia’s logical point, however, remains a sound one. If religious accommodation is to be permissible, then it must be possible to favor religion at some level of abstraction. How, then, can we define the “religion” that the state is permitted to promote? I’ll try to answer that in my next post. "Cool, Carefully Considered, Methodical, Prolonged and Repeated Subjection of Captives to Physical Torment, and the Accompanying Psychological Terror"
Marty Lederman
That's the description of the CIA "enhanced interrogation" program by someone who has studied it -- Philip Zelikow, the Executive Director of the 9/11 Commission and, until recently, a close advisor to the Secretary of State. In what the New York Times describes as a "blistering lecture" delivered in April, Zelikow called the program "immoral." A Review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," Part Two
JB
This is Part Two of my review of Bruce Ackerman's Holmes Lectures, "The Living Constitution," 120 Harv. L. Rev. 1737 (2007). It describes how Ackerman has made significant changes in his theory of constitutional moments in order to explain the Civil Rights Revolution. [You can read Part I here, Part II here, Part III here, and Part IV here.] Tuesday, May 29, 2007
Politicizing the Selection of Immigration Judges
Marty Lederman
Emma Schwartz and Jason McClure of Legal Times fill in most of the details, including about the civil lawsuit that prompted the Civil Division to object to the Bush DOJ view that the appointments were not protected by the civil service laws. One of Those Rare Instances in Which the Nazi Analogy is Unavoidable
Marty Lederman
Andrew Sullivan describes the uncanny and chilling correspondence between the Gestapo's "enhanced" (or "sharpened") interrogation techniques, and those that have been officially authorized and used by the United States over the past few years. Not only are the techniques, and the nomenclature, of a piece -- but so are the legal and ethical justifications offered in their defense. A Review of Bruce Ackerman's Holmes Lectures, "The Living Constitution", Part One
JB
My colleague Bruce Ackerman's Holmes Lectures have now been published in the Harvard Law Review as "The Living Constitution," 120 Harv. L. Rev. 1737 (2007). In my view, this is scholarly innovation of the first rank, as important as any in this very distinguished series of lectures. As I describe the major themes in this review, you will instantly see that they raise a new agenda for discussion about constitutional law and constitutional theory. They are generative scholarship in the best sense. Monday, May 28, 2007
Memorial Day Musings
Sandy Levinson
There are so many potential topics to write about on this Memorial Day. One of them is the subject of an excellent piece in Monday’s New York Times, by David Carr on the decreasing news coverage of the War (because of expense and danger), coupled with ever more authoritarian rules adopted by the military—one suspects at the behest of the civilian leadership in the Pentagon—with regard to pictures of the war that might, were they published in daily newspapers and shown on television, bring home the costs of this war to the people we profess to care about, both American and Iraqi. And even as George W. Bush pays yet another ostentatious visit to Arlington National Cemetery, he has obdurately refused to attend the funeral of a single fallen soldier over the past four years of his war (and, of course, the military continues to prohibit any photography of flag-draped coffins arriving in Dover, Delaware). Is religion any good?
Andrew Koppelman
The recent exchange between Rick Garnett and Jack Balkin on state support for religion brings to mind a familiar puzzle. In what sense, if any, is it permissible for the state to treat religion as a good thing? Let me focus the problem a bit more. The Supreme Court has declared that, under the Establishment Clause of the First Amendment, “[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” The Establishment Clause “mandates governmental neutrality between religion and religion, and between religion and nonreligion.” But the Court has also acknowledged that “the Free Exercise Clause, . . . by its terms, gives special protection to the exercise of religion.” This generates a puzzle. It is not logically possible for the government both to be neutral between religion and nonreligion and to give religion special protection. Some justices and many commentators have therefore regarded the First Amendment as in tension with itself. Call this the free exercise/establishment dilemma. The dilemma is pressing because religion is ubiquitously given special treatment. A classic case is Quakers’ and Mennonites’ objections to participation in war, which has been accommodated since Colonial times. But there are plenty of other cases. Persons whose religions place special value on the ritual consumption of peyote or marijuana (or wine, during Prohibition) seek exemption from drug laws. Landlords who have religious objections to renting to unmarried or homosexual couples want to be excused from antidiscrimination laws. Churches seeking to expand sometimes want exemption from zoning or landmark laws. The Catholic church wants to discriminate against women when ordaining priests. Jewish and Moslem prisoners ask for Kosher or halal food. These scruples have often been deferred to, and religious objectors have frequently been exempted from obligations that the law imposes on all others. (There is considerable dispute about whether the decision when to accommodate ought to be one for legislatures or courts, but that debate rests on the assumption, common to both sides, that someone should make such accommodations.) The problem is clearly presented by Jack’s challenge to Rick to offer any state support for religion other than accommodations from generally applicable laws. Rick conceded the strength of the point, but notice how important accommodations are. Religious people are not entitled to any special treatment, except that they get exempted from laws that everybody else has to obey. The exception has a rule-swallowing tendency that shouldn’t go unnoticed. The sentiment in favor of such accommodations is nearly unanimous in the One solution to the clash would be to say that the Free Exercise Clause states an exception to the Establishment Clause’s rule. Unless it is somehow bounded, this exception would, however, threaten to swallow the rule altogether. As Justice O’Connor has observed, “judicial deference to all legislation that purports to facilitate the free exercise of religion would completely vitiate the Establishment Clause. Any statute pertaining to religion can be viewed as an ‘accommodation’ of free exercise rights.” Another approach to reconciling the two clauses would be to define free exercise as minimally as possible. Even the narrowest definitions proposed would, however, forbid deliberate discrimination against religion. That in itself is a kind of special treatment. Most nonreligious beliefs do not and cannot receive such protection. The Free Exercise Clause simply cannot be redefined in a way that is consistent with the broadest possible reading of the Establishment Clause. It is therefore necessary to revise our understanding of the scope of the Establishment Clause. The most promising approach is to define the Establishment Clause less abstractly than the Court has, in order to permit the special treatment of religion that is mandated by the Free Exercise Clause. Is there a way to do this? I have offered an answer in some writings that can be found here and here, and I will try to summarize that answer in future postings. Today I just want to insist on the problem. Unless there is some sense in which it is consistent with the Establishment Clause for the state to treat religion as a valuable thing, the religion clauses are indeed incoherent. Scientists prove that Adam Smith was right and that Dick Cheney is brain damaged
JB
Take that, Immanuel Kant: Sunday, May 27, 2007
The Constitutional Crisis Within
Marty Lederman
After the White House Counsel and Chief of Staff had tried to shake down the sedated and ailing Attorney General in his hospital bed.
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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 |