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 Dean David Levi's Response to the New York Times Constitutional Theory is Like Toothpaste Is Constitutional Theory Like Toothpaste? A Reply to Jack Why Sigh . . . . About Originalism? Sigh . . . Originalism Unconditional Bailouts: Capitalism’s Undoing Bread, Freedom and Social Justice Gary Jeffrey Jacobsohn on “Rights and American Constitutional Identity” An Invitation to the Editorial Board of The New York Times Understanding Wealth Defense: Direct Action from the 0.1% Reforming legal education A Growing 'Civilian-Military' Gap, and its Consequences David Segal on Law Schools: A Note on the Published Correction Politics, Cognition and "Pepper" Spray The Last Days of Laissez-Faire Our notably unpardoning President The Responsibility of Yale Law School for the Rise of Tuition Nationwide--And What It Can do to Help New York Times Financial Advice: Be an Unpaid Intern Through Your 20s (Then Work till You're 100) David Segal on Law Schools Constitutional Email
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Wednesday, November 30, 2011
Dean David Levi's Response to the New York Times
Neil Siegel
I have read with great interest the several recent posts responding to a news article and an editorial in the New York Times on the state of legal education in America. Dean David Levi of Duke Law School recently wrote a letter to the editor of the Times on this subject, which the paper did not print. He has given me permission to post it here: Constitutional Theory is Like Toothpaste
Gerard N. Magliocca
We have now found the heart of our disagreement. Jack and some other scholars view originalism (in its more expansive form) as an interpretive theory that is doing meaningful work. I believe, by contrast, that it is now just a brand name that is getting close to becoming a generic term for interpretation. Indeed, originalism may be the most powerful brand ever developed by constitutional theory, which explains why it is being embraced by so many and why it is probably inevitable that it will lose its distinctiveness. Is Constitutional Theory Like Toothpaste?
JB
Gerard's last post helpfully clarifies our disagreement. He writes: "there is considerable value in retaining a sharp distinction between constitutional theories. . . It just seems to me that once anything can be labelled as originalist, then that term is no longer useful and may just obscure the truth." Tuesday, November 29, 2011
A Reply to Jack
Gerard N. Magliocca
I want to respond briefly to Jack's post, though I would like to think more deeply about his points over the next day or two. It is true that I am not an originalist, and it is also true that Jack's account of originalism is gaining traction in the academy. Now he asks why I should care about what originalism is (at least before I convert to the true faith). Why Sigh . . . . About Originalism?
JB
Gerard's post Sigh . . . Originalism proposes a test for what should properly termed originalism: "an argument is originalist only if the application of the text under consideration was contemplated by somebody at the time the provision was ratified." Sigh . . . Originalism
Gerard N. Magliocca
Richard Nixon once said that "we are all Keynesians now," and constitutional theory is approaching the point where we are will all be originalists. Steve Calabresi is the co-author of a forthcoming article claiming that gender discrimination violates the original understanding of the Fourteenth Amendment. Jack defends the Court's abortion decisions as an originalist reading of the same amendment. Michael McConnell claims that racial segregation was contrary to the original understanding (and so on). No doubt someone will soon tell us that a decision upholding the individual mandate is originalist. Monday, November 28, 2011
Unconditional Bailouts: Capitalism’s Undoing
Frank Pasquale
What are we to make of Bob Ivry, Bradley Keoun and Phil Kuntz's blockbuster report on the Fed's bailouts? The three journalists conclude that "taxpayers paid a price beyond dollars as the secret funding helped preserve a broken status quo and enabled the biggest banks to grow even bigger." Yves Smith argues that "banks lied" and grabbed $13 billion in profit. She also notes that their favorite water carrier, Timothy Geithner, "told Congressmen they were too stupid to be able to shrink banks, and they should leave those questions to the Basel Committee (which has no interest in making big banks smaller)." Sunday, November 27, 2011
Bread, Freedom and Social Justice
Guest Blogger
Nagla Rizk Gary Jeffrey Jacobsohn on “Rights and American Constitutional Identity”
Ken Kersch
For those interested in the constitutional understandings of one of the leading political scientists (and constitutional comparativists) writing in the field, the journal Polity has just posted a podcast interview I did with Gary Jeffrey Jacobsohn, the H. Malcolm McDonald Professor of Constitutional and Comparative Law in the Government Department at the University of Texas-Austin. Saturday, November 26, 2011
An Invitation to the Editorial Board of The New York Times
Jason Mazzone
I extend to the members of the editorial board of The New York Times an invitation: come to the law school where I teach and I'll show you around. Understanding Wealth Defense: Direct Action from the 0.1%
Frank Pasquale
The OWS protests have provoked reflection on the morality of direct action and civil disobedience. How far should the police go to spy on, disrupt, or punish peaceful protesters? Is pepper spray a dangerous chemical agent or "a food product, essentially?" Does current American inequality merit a direct action follow-up to the Civil Rights Movement, whose mass-arrestees and water-cannoned marchers are now viewed as heroes? Friday, November 25, 2011
Reforming legal education
Sandy Levinson
The New York Times has an editorial in tomorrow's (Saturday, Nov. 26) paper on reforming legal education. The key sentences, I think, are the following: A Growing 'Civilian-Military' Gap, and its Consequences
Mary L. Dudziak
"A smaller share of Americans currently serve in the U.S. Armed Forces than at any time since the peace-time era between World Wars I and II," according to a new report from the Pew Research Center (hat tip New York Times). Wednesday, November 23, 2011
David Segal on Law Schools: A Note on the Published Correction
Jason Mazzone
On Saturday evening I posted a response to David Segal's article in The New York Times on legal education. One of my points was that Segal didn't seem to know much about the law given his complaint that criminal procedure involved "case studies of common law crimes — like murder and theft" rather than training in plea bargaining. The Times has now revised Segal's article to substitute criminal law for criminal procedure and the following statement accompanies the online version of the article: "An article on Sunday about the emphasis on theoretical over practical learning in law schools misidentified a first-year course about common law crimes. It is Criminal Law, not Criminal Procedure." Politics, Cognition and "Pepper" Spray
Dan Kahan
Does “pepper spray” really hurt? The answer probably depends on the relationship between the ideology of the person who was sprayed and the ideology of the person asking/answering the question. There is an internet buzz emerging over the suggestion by Fox news commentators & equivalent that “pepper” spray (it’s orders of magnitude more irritating than habanero) isn't all that painful. The debate is politically polarized along predictable lines. If the demonstrators who were sprayed had been protesting abortion rights outside an abortion clinic, would there be an ideological inversion of the perceptions of how much the spray stings? The answer is that we are unlikely even to get to that point in the discussion before we are already tied in knots over other facts relating to the behavior of the protesters and the police. Tuesday, November 22, 2011
The Last Days of Laissez-Faire
Ken Kersch
Spirited laissez-faire arguments peppered the media and other popular outlets in the decades leading up to the New Deal. These in many ways anticipate those now being used by the Tea Party and others on the contemporary Right. Monday, November 21, 2011
Our notably unpardoning President
Sandy Levinson
Justin Smith, a philoosphy professor from Montreal, has an excellent posting on the New York Times web site denouncing the "parody" of mercy by which President Obama will shortly "pardon" a turkey, who will therefore be allowed to live. Smith notes the fact that the United States is almost unique among the self-proclaimed "enlightened" countries of the world in its use of the death penalty. Rick Perry, of course, garnered huge applause from telling a Republican audience that he has let literally dozens of prisoners go to their deaths without his exercising his gubernatorial prerogative even to delay the sentence for 30 days. (Pardons and commutations are in the hands of a separate pardoning board in Texas.) This included his sending to death a very-likely innocent man who had been railroaded by junk-science testimony about arson, and Perry thereafter torpedoed a a post-execution attempt to find out the full facts. Moreover, Mitt Romney has publicly praised himself for never once using his own authority as Massachusetts governor to pardon anyone. The Responsibility of Yale Law School for the Rise of Tuition Nationwide--And What It Can do to Help
Brian Tamanaha
Yale Law Professors Akhil Reed Amar and Ian Ayres (a fellow Balkinization contributor) recently posted a thoughtful essay on Slate noting the problems with tuition and debt. Tuition at private law schools has more than doubled in real terms in the past quarter century, average debt among law graduates is approaching $100,000, many graduates are not getting jobs as lawyers, and many who do get lawyer jobs do not earn enough to manage their monthly loan payments. Their main proposal, which they are urging their dean to implement, is to encourage law schools to offer law students a one-half tuition rebate to drop out of law school after the first year. By then, students will know whether they are interested in a legal career and their likelihood of landing a decent-paying job. Sunday, November 20, 2011
New York Times Financial Advice: Be an Unpaid Intern Through Your 20s (Then Work till You're 100)
Frank Pasquale
Jason Mazzone has already addressed the main shortcomings of the latest N.Y. Times article by David Segal on law schools. I'd like to situate it as part of a neo-liberal ideology developing at the Times and other scriveners for the powerful. Saturday, November 19, 2011
David Segal on Law Schools
Jason Mazzone
David Segal has an article in The New York Times called "What They Don’t Teach Law Students: Lawyering." The article rehashes some old complaints about legal education: law schools emphasize the theoretical over the useful; professors don't have practice experience and spend too much time writing law review articles; and employers have to train law school graduates before they can work for clients. Constitutional Email
Ken Kersch
The Washington Post reported a few days ago on the heavy involvement of conservatives in the world of viral political chain emails.
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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 |