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 Stanley Greenberg is the latest dot non-connector End the debt crisis now with a credit default swap! Lessons From the States on the Debt Ceiling Crisis Economic Class and Federal Judgeships Obama is already invoking the 14th Amendment Revising the Constitutional Text Some questions for Americans Elect Obama's Options An interesting disconnect "It's incredible" Political Brinksmanship Tom Friedman and David Patraeus Toward a parliamentary system? Imaginative Constitutional Histories, Executive Unilateralism, and the Debt Ceiling Science Communication vs. Soulcraft Why Obama won't invoke section 4, continued On "winning arguments" in constitutional law Looking more like Weimar (in the '20s) every day Professor Connell's Accusers A fight to the finish Further illustrations of why formal rules matter How the Constitution structures the debt crisis Why Bill Clinton would invoke Section 4 of the Fourteenth Amendment (and Obama won't) Obama's Top Secret Plan to Solve the Debt Crisis No More Secret Dossiers: We Need Full FTC or CFPB Investigation of "Fourth Bureau" Reputation Intermediaries The Constitutionality of the Debt Ceiling and the President's Duty to Prioritize Expenditures The Begolly Indictment and the First Amendment So are we moving toward a "constitutional crisis"? Latest wisdom of crowds Why Has the French Parliament, but not the American Congress, Voted on the Libyan Intervention? McConnell and the Separation of Parties, Not Powers Delegation run riot Intrade's latest How Law Schools are Helping the Elite The Meanings of "Lawfare" An anecdote from almost 50 years ago Laurence Tribe Responds to Secretary Geithner Guns, Butter, or Gambling Let's not absolutize the public debt Is Section 4 Alive?
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Sunday, July 31, 2011
Stanley Greenberg is the latest dot non-connector
Sandy Levinson
The Democratic pollster Stanley Greenberg has a very interesting piece in today's NYTimes in which the principal question is why a Democratic Party that in fact is the majority party issue-by-issue is in such precarious shape as a political party. I won't go through his whole argument; you should read it yourself. But I do want to highlight several of his specific statements: 1) I see clearly that voters feel ever more estranged from government — and that they associate Democrats with government. If Democrats are going to be encumbered by that link, they need to change voters’ feelings about government. Friday, July 29, 2011
End the debt crisis now with a credit default swap!
JB
Lest anyone be confused, what follows is not a serious proposal. It's designed to show the absurdity of the current debt ceiling crisis, which is based on faulty views of what a federal debt ceiling actually accomplishes. Lessons From the States on the Debt Ceiling Crisis
Guest Blogger
David Super Economic Class and Federal Judgeships
Jason Mazzone
At this time of year, many students are looking for law review note topics. I have a topic that would make for a nifty student note: how has the economic class of nominees to the federal bench varied over time? Or, put differently, how rich do you need to be today to be nominated to a federal judgeship? I was reminded of this topic (one I would investigate myself except I have too many other projects) by the news this afternoon that President Obama has nominated Ronnie Abrams (Upper East Side, the Dalton School, father a big firm partner) to the Southern District of New York. A student interested in this topic has easy access to the relevant data. Nominees to the federal bench are required to answer an extensive questionnaire and to disclose information about their employment history and net worth. A little sleuthing will turn up additional useful information, such as the occupations and educational backgrounds of the nominee's parents, that would allow for an analysis based on multiple criteria. The note could look at variations over some period of time--say the last twenty years--in the economic status of nominees. Differences between nominations made by Republican and Democratic presidents could be investigated, along with any differences between male and female candidates, among nominees of different racial backgrounds, between district court and circuit court nominees, between younger and older nominees, and so on. I hope that somebody will take up this topic--and if you do, please share your results.
Obama is already invoking the 14th Amendment
JB
Some Democrats in Congress, including Steny Hoyer, have called for President Barack Obama to invoke the 14th Amendment to resolve the debt ceiling crisis. Thursday, July 28, 2011
Revising the Constitutional Text
Gerard N. Magliocca
I just finished Pauline Maier's wonderful book on the ratification of the Constitution, which includes a section on the Bill of Rights. She notes that James Madison originally wanted to insert any amendments directly into the text and change any parts of the 1787 document that were inconsistent with them. Roger Sherman of Connecticut, however, objected to this approach. He wanted the amendments attached to the end of the Constitution. Why? His explanation was that the original document was "sacred" (he was obviously not reading Sandy's work) and should not be touched. Besides, Sherman said, Madison's approach would imply that the delegates who signed the Constitution in Philadelphia had agreed to any subsequent changes. Madison relented to Sherman's demand get the two-thirds supermajority that he needed in the House of Representatives. Some questions for Americans Elect
Sandy Levinson
The LA Times has an intersting story about Americans Elect, Tom Friedman's new enthusiasm as the way to provide a third (or perhaps fourth, should the GOP nominate Mitt Romney) party. Its own web site is stunningly unilluminating. AE appears to speak in the language of hi-tech populism, whereby all of the self-apponted "delegates" will choose, on a one-person/one-vote basis, the party's nominee sometime in the spring or early summer of 2012. A remarkable number of questions are left hanging that need answering before others follow the effervescent Friedman into Americans Elect: Obama's Options
JB
My piece on President Obama's options in the debt ceiling crisis-- ranging from jumbo coins to section 4 of the Fourteenth Amendment-- is on CNN.com, Here's the part about the most likely scenario if no deal is reached, and the role that section 4 would play: Tuesday, July 26, 2011
An interesting disconnect
Sandy Levinson
The current Intrade possibility of Congress passing a debt-limit increase by July 31 is 16.2% (i.e., roughly one in six). By definition, this means that Intrade participants believe there is an 83.8% probability of default. Yet the markets are behaving well within ordinary swings, and I suggested in my earlier post that traders basically don't believe the talk that there's really a "crisis," since it would be lunatic to default (and therefore it won't happen). (I assume that traders do not believe, like Michelle Bachman, that a default would be no big deal.) "It's incredible"
Sandy Levinson
I'm not referring to the idiocy that has taken over our national political system. That is all too credible, given both the contemporary zeitgeist, our defective Constitution, and the consequences of systematic congressional-district gerrymandering that has turned the Republican Party over to Tea Party lunatics. Political Brinksmanship
Gerard N. Magliocca
I was going to post something serious about the ongoing debt ceiling negotiations, but on reflection I think that this gem from the British comedy series "Yes, Prime Minister" that I put up on Concurring Opinions a while ago does a better job of describing where we are. The scene is a conversation between the Prime Minister, Jim Hacker, and the Cabinet Secretary, Sir Humphrey Appleby, on nuclear deterrence of the Soviet Union. Monday, July 25, 2011
Tom Friedman and David Patraeus
Sandy Levinson
Tom Friedman calls for a revolt by the "radical center," which takes the form of a thid party to be nominated by the equivalent of a multi-month "internet convention" that will winnow down candidates and then choose two, but not from the same political party, to run as candidates for the presidency and vice presidency in 2012. Apparently, this is well-funded, and steps are already on the way to get the candidates of Americans Elect on the ballots in all fifty states. There's much that could be said about this in terms of my repeated criticisms of Friedman for a basic unwillingness to connect the dots. (He does not, for example, seem to recognize that legislation emanates from the Congress, and his breathless endorsement of Americans Elect doesn't speak to this reality, nor to the the even more stunning reality that the most likely consequence of "success" is to throw the election into the House of Representatives, which votes, recall, on a lunatic one-state/one-vote basis (though, politically, I'm delighted that Vermont will balance out Texas, though less charmed that Allaska or Wyoming together will outweight California, but, hey, that's just our dysfunctional Constitution). Toward a parliamentary system?
Sandy Levinson
There is a growing perception that we are living in momentous times, certainly as we look around the world (e.g., the "Arab Spring") and, increasingly, at home as well. There has been much written about the move toward presidentialism by those (including myself) who have suggested that President Obama summon up "emergency power" to keep the US from defaulting. The most "exuberant" such arguments, of course, are found in the Vermeule-Posner op-ed, which basically calls for the President to exercise the powes of a Schmittian "commissarial dictator" by citing his duty to "save the nation" without citing any explicit constitutional authorization. ("Moderates" like myself believe that Section 4 of the Fourteenth Amendment could provide such authority, though Laurence Tribe, Marty Lederman, and Jack Balkin all provide good arguments as to why those arguments are weak) Saturday, July 23, 2011
Imaginative Constitutional Histories, Executive Unilateralism, and the Debt Ceiling
Marty Lederman
In the New York Times yesterday, Professors Eric Posner and Adrian Vermeule argue that if the President and Congress cannot agree upon legislation that will avoid largescale default on the debt, the President can and should "raise the debt ceiling unilaterally," presumably by creating new "obligations" (i.e., borrowing funds) beyond the limit that section 3101 of title 31 currently sets. They do not, however, argue that the President has the constitutional authority to do so by virtue of the Fourteenth Amendment, a possibility that has been the subject of many posts by Jack, Larry Tribe, Neil Buchanan and Mike Dorf, here and on Mike's blog -- and a constitutional argument that the President himself appeared to reject yesterday. Indeed, it's not obvious that Eric and Adrian think that default would result in a Fourteenth Amendment violation at all, or that they care about that question in the slightest -- their argument is, instead, that the President can take such unilateral action in violation of statute even if the default would not be unconstitutional. Friday, July 22, 2011
Science Communication vs. Soulcraft
Dan Kahan
Why Obama won't invoke section 4, continued
JB
At a town hall event in College Park, Maryland, President Obama swatted away suggestions that he invoke section 4 of the Fourteenth Amendment to issue new debt despite the debt ceiling, noting that he had "talked to [his] lawyers and "they are not persuaded that that is a winning argument." On "winning arguments" in constitutional law
Sandy Levinson
This just in, re President Obama's "town meeting" at the University of Maryland today: Looking more like Weimar (in the '20s) every day
Sandy Levinson
During the heyday of the late, unlamented Bush Administration, I wrote a number of posts suggesting the value of reading Carl Schmitt, the brilliant political and legal theorist of Weimar Germany (who ended up supporting Hitler in the '30s). In The Crisis of Parliamentary Democracy, written in 1923, he argued, among other things, that Parliament was incapable of functioning because of the nature of the German party system. There was no serious sense in which Parliament was a forum for "deliberation," which requires, for example, that people with opposing views actually listen seriously to one another and possibly even be influenced by reason-based arguments from their opponents. Instead, if parliamentarians spoke at all, they really were speaking to their base outside the halls of Parliament and trying to rev them up for the near-warfare among the central parties. Since no one party had control of Parliament, thanks to the system of proportional representation, this meant the frequent invocation of Article 48 of the Weimar Constitution, which effectively transferred decisionmaking power to the German President: "If public security and order are seriously disturbed or endangered within the Reich, the President of the Reich may take measures necessary for their restoration, intervening if need be with the assistance of the armed forces. For this purpose he may suspend for a while, in whole or in part, the fundamental rights provided in Articles 114, 115, 117, 118, 123, 124 and 153." Thursday, July 21, 2011
Professor Connell's Accusers
Jason Mazzone
According to a press release issued by his attorneys, law professor Larry Connell of Widener University has been cleared of all but one of the allegations of misconduct brought against him in connection with his classroom behavior. The press release reports that following a three-day "trial," the university committee hearing the allegations dismissed all of the charges of racial and sexual harassment against Professor Connell but found that he violated a university anti-retaliation policy by e-mailing his students to contest the charges and by issuing a press release about them. Earlier this year, Professor Connell filed a defamation lawsuit against the dean of Widener University School of Law School for allegedly filing false disciplinary charges against him. Professor Connell later amended his complaint to add as co-defendants two students from his Spring 2010 criminal law class, who, he alleged, made false statements to members of the Widener administration alleging sexist and racist conduct by Connell in the classroom. For more background on the case, see Orin Kerr' discussion here and here. Wednesday, July 20, 2011
A fight to the finish
Sandy Levinson
I begin with the fact that the folks who participate in Intrade currently see only a 21% chance (!) of Congress approving a debt limit increase by July 31 and a 60% probability of approval by the end of August. This obviously runs contrary to the complacence of the market, which appears to believe that the Kabuki will come to an end with the capitulation of Eric Cantor and his troops to the obvious necessity to increase revenues along with cutting expenditures. Tuesday, July 19, 2011
Further illustrations of why formal rules matter
Sandy Levinson
In 2008, I think it's fair to say, Barack Obama got the Democratic Party nomination and John McCainthe Republican nomination because of the basic rules bywhich delegates were assigned. That is, the Democrats followed a principle of proportional representation; the Republicans, with a few exceptions insome states, followed the traditional "winer-take-all" rule. This allowed John McCain to get 100% of Missouri's delegates by getting 34% of the primary vote, as against Mike Huckabee's 32%. (And, of course, a number of other candidates shared the other 32%). How the Constitution structures the debt crisis
Sandy Levinson
There are two distinct ways in which one has to understand how the Constitution strucures the current crisis. One obviously involves our tricameral legislative system and the fact that all three branches of the legislature--i.e., the House, the Senate, and the President--have to agree in order to get any legislation at all. So, as senators and the President are apparently giddy about a compromise reached by the Gang of Six that, according to NPR, could actually get the support of over 60 senators (i.e., a filibuster-proof majority), there is still the House, and whether Eric Cantor and his Tea Party minions will indeed capitulate and accept even one cent of added revenue. In the alternative, the question may be whether John Boehner junks the pernicious "rule" adopted by Dennis Hastert by which he refused to bring any bill to the floor of the House that didn't have the support of a majority of the Republican caucus (even if, by stipulation, it had the support of a majority of the House in general, once one added Democratic votes to a minority of the Republican caucus). Why Bill Clinton would invoke Section 4 of the Fourteenth Amendment (and Obama won't)
JB
In an interview, former President Bill Clinton stated that he would invoke section 4 of the Fourteenth Amendment in the debt ceiling crisis. Clinton stated that Monday, July 18, 2011
Obama's Top Secret Plan to Solve the Debt Crisis
JB
Secretary Tim Geithner had a troubled look as he was ushered into the Oval Office. Senate Majority Leader Harry Reid and Vice-President Joe Biden were already there. No More Secret Dossiers: We Need Full FTC or CFPB Investigation of "Fourth Bureau" Reputation Intermediaries
Frank Pasquale
There is a superb article by Ylan Q. Mui on the growth of new firms that create consumer reputations. They operate outside the traditional regulation of the three major credit bureaus. Mui calls this shadowy world of reputational intermediaries the "fourth bureau." The Federal Trade Commission (or the Consumer Financial Protection Bureau) should conduct an immediate investigation of the "black box" practices described by an industry leader in the article. This should be part of a larger political and social movement to stop the collection of "secret dossiers" about individuals by corporate entities. The Murdoch scandal now unraveling in Britain is only the most extreme example of a wholesale assault on privacy led by unscrupulous data collectors. Saturday, July 16, 2011
The Constitutionality of the Debt Ceiling and the President's Duty to Prioritize Expenditures
Guest Blogger
Larry Tribe Friday, July 15, 2011
The Begolly Indictment and the First Amendment
Marty Lederman
Is there a constitutional right to make posts to the Internet encouraging terrorism? To link to a bombmaking manual in hopes that some reader will use it for unlawful purposes? Wednesday, July 13, 2011
So are we moving toward a "constitutional crisis"?
Sandy Levinson
The New York Times is reporting that "tensions [are] escalat[ing]" in the negotiations to achieve a resolution to the debt limit debate. "Across Washington, officials were weighed down with a sense that they were hurtling toward a crisis." Nate Silver actually uses the magic words in his column that well spells out how much to the right the House Republicans majority is even as compared with ordinary Republicans in the polity, who are willing to accept modest tax increases, let alone non-Republicans, with regard to their fanaticism about "no tax increases" now or ever. Thus he writes that "a failure to raise the debt ceiling at all [would likely] result[]in some combination of a debt default, a government shutdown, and a Constitutional crisis." Latest wisdom of crowds
Sandy Levinson
The Intrade participants now predict only a 40% likelihood of Congress passing a debt limit bill by July 31, though the percentage goes up to a whopping 65% re a bill before August 31. That should reassure all of us. Why Has the French Parliament, but not the American Congress, Voted on the Libyan Intervention?
Bruce Ackerman
As Americans increasingly allow their president to break free of constitutional checks, the French are moving in precisely the opposite direction. The Constitution of 1958 created a presidency that gave DeGaulle truly extraordinary powers. Article 16 gave the president unchecked authority to declare an emergency and assert unlimited power for as long as he thought appropriate. And Article 35 authorized him to commit military forces abroad, without ever gaining parliamentary approval. Tuesday, July 12, 2011
McConnell and the Separation of Parties, Not Powers
Joseph Fishkin
Following up on Sandy’s post, McConnell’s trial balloon today was, I believe, several degrees more cynical than Sandy suggests. Far from handing the President the power to actually cut spending unilaterally, McConnell’s proposal amounts to a delegation to the President of the power to raise the debt ceiling without cutting spending at all. (The President must propose, and be on the hook politically for, some large cuts, but Congress need not enact them.) Delegation run riot
Sandy Levinson
Apparently, Mitch McConnell's secret plan to avoid a default is to delegate to the President the unrestricted power to cut whatever governmental programs he wishes, with no consultation with Congress, so long as his cuts reach the magic number of $2.4 trillion. If he does that, then he can also unilaterally raise the debt limit. This gives new meaning to the notion of "delegation run riot." Intrade's latest
Sandy Levinson
I note for the record that Intrade's latest prediction re Congress's passing a debt limit increase by midnight on August 31 is only 75% likelihood. This is down a full six points from yesterday's 81%. It is also interesting that the date is August 31, which presumably takes into account the possibility of a default in early August that would so roil that markets that even Republicans would come to their senses. Still, it seems fair to say that the actual markets are still refusing to take the possibility of default very seriously, though that seems less true in Europe re the possiblity of Greek and now Italian default. (Perhaps one difference is that European default is a reflection of truly deep and fundamental economic problems, whereas the American controversy is about the capture of the Republican Party by anti-tax fanatics.) How Law Schools are Helping the Elite
Brian Tamanaha
In 2010, tuition at Yale was $48,340, plus $18,900 in estimated living expenses. About 45 percent of the incoming students paid full price. In rounded terms, nearly 25 percent received a remission of half or more of tuition, 29 percent received less than half, and no student received a full tuition scholarship. At Harvard a bit more than half of the entering JD students paid full price; tuition was $45,026, with estimated living expenses of $22,874. At Stanford half of the students paid full price; tuition was $44,121, plus $23,739 in living expenses. Harvard and Stanford handed out a number of full scholarships, but otherwise their scholarship numbers were in the same range as Yale’s. The top schools, with some variation, distribute scholarships roughly along these lines: 50 percent of the students pay full fare, 25 percent get a discount of half or more, 25 percent get less than half off, and a handful of students enjoy full scholarships. Monday, July 11, 2011
The Meanings of "Lawfare"
Mary L. Dudziak
One characteristic of post-9/11 American legal thought has been the prominence of the idea of “lawfare.” A new blog is called simply Lawfare, and at the National Security Law Institute I attended this summer, one of our sessions was on Lawfare. Lawfare is thought to be of increasing importance, but it seems increasingly clear that the term itself means different things in different circles, and apparently sometimes different things in the same circle. What follows are various takes on lawfare from legal scholars, and then a military perspective. In the end, I think we’re left with muddiness on the issue of whether there is a normative component to lawfare, and if so whether that normative component is inherently negative. Sunday, July 10, 2011
An anecdote from almost 50 years ago
Sandy Levinson
In 1962 I entered the Harvard Government Department as a graduate student, intending to become a "defense intellectual," as the term was then used. (I had written a senior thesis at Duke about deterrence theory, including the logic of "the rationality of appearing irrational." Richard Nixon, incidentally, made use of this logic, by his own account, when he became President later in the decade.) Among other things, as a firsit-year graduate student, I took a "seminar" (with 90 students!) with Henry Kissinger. By the end of the year, for a variety of reasons, I had migrated to Robert McCloskey, a truly wonderful human being, and a future career studying constitutional law. But that's not the anecdote. Laurence Tribe Responds to Secretary Geithner
Guest Blogger
Larry Tribe Guns, Butter, or Gambling
Frank Pasquale
Sandy Levinson has posted interesting reflections on our tendency to "absolutize" the public debt. There is at least one good and one bad rationale for us to do so. The good rationale is straightforward: government is the ultimate risk manager. We rely on it to aid recovery after disasters, to defend US interests, and to provide for those who cannot survive using their own funds. In a world of advanced and expensive medical technology, that last category potentially includes nearly everyone, at some point in their lives. The debt ceiling debate is a wake-up call for us to choose more carefully between guns and butter. We need credit so that the government can borrow to, say, rebuild a city after a massive earthquake. Saturday, July 09, 2011
Let's not absolutize the public debt
Sandy Levinson
Many of the arguments, including perhaps my own, seem to be suggesting that there's something almost sacred about the public debt. But can that be the case? We allow repudiation of private debts all the time; that's what bankruptcy is about. And, for better or worse, Blaisdell (1934) significantly weakened the forced of the Contract Clause, which was supposed to give creditors a big axe to wield against states passing debtor relief laws that took the form of impairing "the obligations of contract." So maybe there's a difference between private and public debt. Surely there is, but one message of Perry is that the United States could in fact renege on its obligations to pay gold by virtue of basically presidential fiat based on the altogether accurate belief that sticking to the promise set out on the face of the currency itself was in fact not enforceable. (A majority did seem to suggest that repudiation was unconstitutional, but, as with Marbury, the majority also came to the conclusion that they didn't have the power to do anything about it. And it is well known that FDR was prepared simply to ignore the Court on the grounds basically of emergency power. I don't know if the Court was actually aware of that, but they may well have surmised it.) And there are many conservatives these days who are in effect calling for states to repudiate their solemn debts regarding public pensions, by declaring bankruptcy. (Conservatives are discovering the merits of Blaisdell after attacking that decision for some 75 years.) Friday, July 08, 2011
Is Section 4 Alive?
Jason Mazzone
My colleagues-in-blogging have taught me a good deal about section 4 of the 14th Amendment and they have given me a lot to think about during the debt ceiling debates. But a question continues to nag me: What is the reason for thinking that section 4 applies beyond the context of Union debts incurred during the Civil War? Put differently, is Section 4 even alive today?
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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 |