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 A bleg on the Supreme Court and novel technologies Obama's National Security Speech--Eloquence, Yes; Change, Less Certain More on compromise How (and why) rotten compromises are made (and justified?) "Declare Victory and Get Out?" The Future of the AUMF David Ignatius can't connect the dots, either Meaningless Arithmetic Northwestern Symposium on Martin Redish 3D Printers and Guns The CIA and Drone Strikes How “Robust” is Appellate Review of Courts-Martial? John Bingham and Racial Preferences Announcing Long Wars and the Constitution Why Everyone Should Read Jack Goldsmith, "The Trust Destroyer" Erie Railroad v. Tompkins and the New Deal Constitution Must We Be Faithful to Original Meaning? The Left's Failure and the Mismatch Effect Why everyone should read Steve Coll's review in the New Yorker: A point on Mary's side The Health Care Case -- The Book! Defining "the recess" A Reconstruction of Conventional Understandings of Jurisprudence A Leftist Critique of the Left
|
Friday, May 31, 2013
A bleg on the Supreme Court and novel technologies
Mark Tushnet
Thursday, May 23, 2013
Obama's National Security Speech--Eloquence, Yes; Change, Less Certain
Jonathan Hafetz
President Obama's speech today at the National Defense University represents a renewed effort to frame U.S. national security policy and to impose a sense of order and coherence amid mounting criticism of drone killings and Guantanamo. While the speech could help shift the direction of U.S. counter-terrorism policy, the President's rhetorical eloquence masks deep and unresolved divides. More on compromise
Sandy Levinson
Two friends made important points about m previous post. Dennis Thompson, co-author of The Spirit of Compromise, notes that the term "rotten compromise," used by the Israeli philosopher Avashi Margalit in hid book On Compromise and Rotten Compromise, identifies those compromises that are truly evil and basically to be ruled out categorically save for truly exceptional circumstances. In my own book Framed, when discussing compromises, I distinguish between the compromises on slavery, arguably truly "rotten," and that on the Senate, which was simply truly awful, but not "rotten." Wednesday, May 22, 2013
How (and why) rotten compromises are made (and justified?)
Sandy Levinson
The Times reported earlier today on the truly disgraceful decision of Senate Democrats on the House Judiciary Committee to capitulate to Republican homophobia by withdrawing an amendment by Senator Leahy that would have allowed, in the Times's language "United States citizens to apply for permanent resident status, known as a green card, on behalf of their same-sex partners." Thursday, May 16, 2013
"Declare Victory and Get Out?" The Future of the AUMF
Stephen Griffin
Today the Senate Armed Services Committee is conducting a hearing into the future of the September 2001 AUMF. Over at the informative Lawfare blog, the two options on offer are to replace it with an authorization tailored to the new circumstances of a dispersed war against many different terrorist groups or, in the words of Steve Vladeck and Jennifer Daskal in yesterday's NYT, to "declare peace" and get out. In a world in which we did not have to contend with political parties, I would favor the latter option. What my book Long Wars and the Constitution calls the "9/11 War" against al-Qaeda and the Taliban is overdue for a breathing space in which we can assess it from a distance. Presidents Bush and Obama certainly haven't helped -- try to recall a fundamental policy statement in which either president set forth meaningful criteria for success or failure. It's as if the presidents don't want the war to end. Why might that be? In Long Wars, I reject answers based on eighteenth-century theories about presidential motivation. In other words, it's not because they are power-hungry or want to expand the so-called "imperial presidency." Wednesday, May 15, 2013
David Ignatius can't connect the dots, either
Sandy Levinson
David Ignatius is simply the latest leading pundit who demonstrates an incapaity to connect the dots relevant to his own analysis. In a column in the May 16 Washington Post, he says many altogether correct things. Writing of the current scandals, he says, "What should frighten the public is not the federal government’s monstrous power but its impotence....." The only thing that Congress can do is engage in highly partisan "investigations" most of which simply can't be taken seriously (such as the sudden emergence by non-libertarian Republicans as stalwart defenders of the press after earlier behaving like mad dogs with regard to "security leaks" and demanding that no stones be left unturned in efforts to catch leakers." No doubt there is some criminal stupidity worth investigating vis-a-vis the IRS, but equally worth investigating, of course, iw the ability of big money to game the IRS system by corrupting our political system and getting tax exemption for doing it. No doubt the response of the cowed IRS will be shutting down any serious investigation of 501(c)4) groups at all, so that the American taxpayer can in effect subsdizaie our own further descent into plutocracy. Meaningless Arithmetic
Mark Tushnet
Sunday, May 12, 2013
Northwestern Symposium on Martin Redish
Andrew Koppelman
My
Northwestern Law colleague and friend Martin Redish has been hugely influential
in the free speech area. His work has
been cited by the Supreme Court a number of times, and he is probably more
influential than any other scholar in transforming the Court’s approach to
commercial speech and campaign finance. Friday, May 10, 2013
3D Printers and Guns
Gerard N. Magliocca
The State Department's order (or "request") to takedown software that would let people print guns on a 3D printer raises some fascinating issues. The Government wants to see whether making this software available violates certain arms export statutes, in part because 100% plastic guns would be very hard for airport security to detect. Thursday, May 09, 2013
The CIA and Drone Strikes
Stephen Griffin
One of the main themes of my forthcoming book Long Wars and the Constitution is that we can gain insight into the unconventional and seemingly novel “war on terror” by looking closely at the history of the cold war. This approach is especially helpful now in assessing the charges being leveled against the CIA because of the ongoing drone war being carried out in multiple countries under the auspices of the September 2001 AUMF. It is doubtful anyone is entirely happy with the results of the drone war and the civilian casualties that are its foreseeable consequences. But the drone war illustrates several things at once about the relationship between the “9/11 War” (my preferred term for the “war on terror”) and the cold war. Wednesday, May 08, 2013
How “Robust” is Appellate Review of Courts-Martial?
Eugene R. Fidell
Labels: courts-martial, military justice, sexual assault Monday, May 06, 2013
John Bingham and Racial Preferences
Gerard N. Magliocca
With the Court's decisions on racial preferences and on the Voting Rights Act looming, I was mulling over something that I found in a letter that John Bingham wrote in 1877. When the briefs were being written in the University of Texas case, I was asked by some attorneys whether Bingham said anything about the subject that they could use. I said no. Upon reflection, though, I suppose he he did say one thing that was interesting. Friday, May 03, 2013
Announcing Long Wars and the Constitution
Stephen Griffin
Why Everyone Should Read Jack Goldsmith, "The Trust Destroyer"
Sandy Levinson
Another must-read piece, also, like Steve Coll's New Yorker essay, a review of Mark Mazzetti's The Way of the Knife: The CIA, a Secret Army, and a War at the Ends of the Earth, is Jack Goldsmith's "The Trust Destroyer," in the current New Republic. Goldsmith (a friend and sometime colleague at the Harvard Law School) is usually thought of as being on the more conservative side of the spectrum from Coll, but their take on the book, and on the deficiencies of the Obama presidency--again, this is relevant to Mary Dudziak's critique--is remarkably similar. The Administration is obsessed with secrecy and fundamentally unwilling to work with Congress (perhaps understandably, in terms of contemporary partisan politics), and the cost is (justified) erosion of trust in the presidential apparatus, including Obama himself. Should we have a genuinely public debate about what forms new congressional legislation might take with regard to regulation of drones and the use of special forces in countries with which we are not at war, I'm not positive how I'd come out, but I agree with both Goldsmith and Coll that the quality of our democracy is being eroded by the coy nature of such debate as occurs, where an Administration official makes a speech, at Oxford, Harvard, or wherever, or the President says something cryptic at a news conference, or, most notoriously, someone leaks the "White Paper" without, however, publicly addressing what many of us view as its near-bizarre notion of "imminence" with regard to justifying assassination. [UPDATE: A major theme of Steve Griffin's fine new book, which I happily blurbed, is that we have never truly thought through the legal doctrines required to justify what has become basically common practice since Truman's intervention in Korea. Steve emphasizes not only the changing nature of the challenges facing the US and its presidents, but also, crucially, the remarkably enhanced capabilities that presidents have in their capacity as "commanders-in-chief." In addition to weaponry that even Truman, who "dropped the Bomb," could not have envisioned, there is also the creation of "special operating forces" and the parallel airforce now apparently under the control of the CIA. Erie Railroad v. Tompkins and the New Deal Constitution
JB
Last week Richard Epstein and I were on a panel at AEI on the New Deal Constitution, commemorating the 75th anniversary of the decisions in Erie Railroad v. Tompkins and United States v. Carolene Products. The video is available here. Michael Greve kicks it off with a fifteen minute introduction to the two cases; Richard's talk begins about 14:30, and my talk begins about 24:55. I discussed both Erie and Carolene Products in my talk; in this blog post, I will say a few words about Erie. Thursday, May 02, 2013
Must We Be Faithful to Original Meaning?
JB
I've posted my latest article, "Must We Be Faithful to Original Meaning?" on SSRN. The essay came out of a May 2012 conference on Living Originalism held at Hebrew University in Jerusalem. It expands on some of the arguments I made in the book for my version of original meaning originalism. The essay closes by discussing a few analogies between different versions of originalism in American legal theory and different theories of Biblical and Talmudic interpretation in Jewish law. Here is the abstract: The Left's Failure and the Mismatch Effect
Jason Mazzone
Brian Tamanaha's essay, "The Failure of Crits and Leftist Law Professors to Defend Progressive Causes" is characteristically provocative. Here is one especially interesting nugget from Brian's essay: Wednesday, May 01, 2013
Why everyone should read Steve Coll's review in the New Yorker: A point on Mary's side
Sandy Levinson
Anyone interested in the more ominous side of the Obama presidency, where it is reasonable, as Mary Dudziak has recently suggested, to focus more on the contingency of who is President than on the deep structures established by the Constitution, should read Steve Coll's review in the current (May 6) New Yorker of two recent books on the rise of targetted assassinations (and much else) by Mark Marzetti (The Way of the Knife) and Jeremy Scahill (Dirty Wars). The single most depressing line is a (purported) quote of the President made during a Situation Room meeting in which a member of the Joint Chiefs of Staff questioned the rise of a parallel airforce controlled by the CIA: According to Marzetti, Obama said, "The C.I.A. gets what it wants." (One assumes that this was a performative utterance, expressing Obama's own preferences, rather than a merely descriptive statement made by a man lamenting that he did not have the power, as President of the United States, to prevent the CIA getting "what it wants.") Were this a statement of George W. Bush, I presume that many people would be up in arms (so to speak). Coll suggests that the message of the two books, and much contemporary journalism, is that the Obama Administration, far more than its predecessor Bush Administration, has adopted a policy of cold-blooded assassination without any public disclosure, save for the "White Paper," of even the general criteria, let alone the specifics, that have resulted in de-facto capital punishment for an undisclosed, by obviously non-trivial, number of America's enemies. (At one point, the CIA claimed, preposterously, that there was no collateral damage in the drone attacks, that everyone attacked was in fact an enemy, a position similar to that taken in Vietnam during Operation Phoenix.) The Obama Administration's position is ultimately "Trust Us" (and accept the fact that we're leaving a legacy of remarkably unconstrained powers, at least in conventional terms where we look to courts, Congress, or an informed press to supply some constraints). The Health Care Case -- The Book!
Nate Persily
Oxford Press has just published The Health Care Case: The Supreme Court's Decision and Its Implications, which I edited along with Gillian Metzger and Trevor Morrison. Many Balkinization bloggers have contributed chapters. The Table of Contents appears below: Defining "the recess"
Gerard N. Magliocca
The Noel Canning case addressing the President's recess appointment power should be the star of the next Supreme Court Term, assuming that certiorari is granted. I want to raise the following question about the panel opinion's interpretation of "the recess" to mean only an intersession recess. A Reconstruction of Conventional Understandings of Jurisprudence
Brian Tamanaha
The Third Pillar of Jurisprudence: Social Legal Theory, available here. A Leftist Critique of the Left
Brian Tamanaha
"The Failure of Crits and Leftist Law Professors to Defend Progressive Causes," available here.
|
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 |