Balkinization   |
Balkinization
Balkinization Symposiums: A Continuing List                                                                E-mail: 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 What's in a Name Overruled: A (Third) Response To Professor Adler Disturbing reversal of hate-crime convictions in Amish hair-cutting case The methodological absurdity of isolated textualism: Halbig, King, and how not to read "Poverty Capitalism" Sara Mayeux, We Are All Law and Economics Now The Augmented Contraception Coverage Regulations (and an NPRM on extension of the accommodation to some for-profit employers) Is life "priceless"? Ferguson and Foreign Relations New Paper on the Fourteenth Amendment. Taking Liberties with the Last Word War and Peace in Time and Space The Future as a Concept in National Security Law Texas Prosecutor Indicts Ham (you fill in the blank) Politics By Other Means The Historical Resonance of Ferguson Lubet on Free Speech and Salaita The Assault on Journalism in Ferguson, Missouri Dana Milbank on the death of American optimism Thomas on the Seventh Amendment in Puerto Rico ObamaCare Plaintiffs’ 2012 Supreme Court Briefs Read the Act Exactly As They Now Say It Cannot be Read (and Why that Matters for Chevron) Lawrence Summers on constitutional reform
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Thursday, August 28, 2014
What's in a Name
Mark Graber
My down and dirty research indicates that the Dow Jones Industrial Average has more than doubled while President Obama has been in office. The Dow began the day at 17,044. When Obama took office, the Dow was at 7,949. The result is unprecedented gains for anyone slightly above middle-class or better. Is there any reason why no one refers to the remarkable returns on investments (include 401(k)'s) as "the Obama Market?"
Overruled: A (Third) Response To Professor Adler
Guest Blogger
Disturbing reversal of hate-crime convictions in Amish hair-cutting case
Marty Lederman
Yesterday a divided panel of the U.S. Court of Appeals for the Sixth Circuit overturned the convictions of 16 members of the Bergholz Old Order Amish community in Ohio under the 2009 federal hate-crimes law, even though it was undisputed that over a three-month period in 2011, the assailants--under the direction and approval of the Bishop of the Bergholz community, Samuel Mullett--attacked nine other Amish individuals by forcibly slicing off the men’s beards and cutting the women’s hair. A critical part of the majority's decision is based upon its conclusion that the evidence did not necessarily prove that the victims' religion was a but-for cause of the assaults. That conclusion strikes me as untenable--indeed, deeply disturbing in its implications. I'm curious whether others have a similar reaction. Wednesday, August 27, 2014
The methodological absurdity of isolated textualism: Halbig, King, and how not to read
Guest Blogger
"Poverty Capitalism"
Sandy Levinson
If there is any one article that everyone should read and think deeply about, it is Thomas Edsall's piece in the NYTimes (online) on the rise of what he calls "poverty capitalism," i.e., the privatisation of government functions that has the consequences of imposing huge financial costs on the poor. One cannot possibly understand the realities of Ferguson, Missouri, for example, without understanding the depth of this problem. Edsall ends his column thusly: Saturday, August 23, 2014
Sara Mayeux, We Are All Law and Economics Now
Mary L. Dudziak
For your Saturday, I thought I'd share a post from the U.S. Intellectual History Blog by Sara Mayeux, who is currently a Sharswood Fellow at the University of Pennsylvania Law School. Sara looks at law and economics from the perspective of intellectual history, asking "how did law and economics go from an oddball preoccupation of a few
Chicago professors to one of the dominant intellectual frameworks for
thinking and talking about law?" You will think, of course, that Steven Teles already answered the question, but Sara compares Teles' work with landmark intellectual historian Dan Rodgers' Age of Fracture, and also legal historian Brad Snyder. Friday, August 22, 2014
The Augmented Contraception Coverage Regulations (and an NPRM on extension of the accommodation to some for-profit employers)
Marty Lederman
As promised, the federal government today issued an an interim final rule in which it has augmented the secondary accommodation for nonprofit religious employers that have religious objections to including contraceptive coverage in their employee (or student) insurance plans. The augmented regulation responds directly to the Supreme Court's suggestion in its Wheaton College order that the Government might "rely[] on [a nonprofit employer's] notice [to HHS of its religious objection] . . . to facilitate the provision of full contraceptive coverage under the Act,” and in so doing guarantee that the employees of that objecting organization would continue to receive cost-free access to contraceptive services while at the same time eliminating any religious objection that such organizations might have had to the requirement that they file "Form 700" in order to opt out. Is life "priceless"?
Sandy Levinson
Ferguson and Foreign Relations
Mary L. Dudziak
My take on the international reaction to the crisis in Ferguson, Missouri, is at Foreign Affairs this morning. Here's a snippet: Wednesday, August 20, 2014
New Paper on the Fourteenth Amendment.
Mark Graber
I have just posted "Constructing Constitutional Politics: Thaddeus Stevens, John Bingham and the Forgotten Fourteenth Amendment" on SSRN. The abstract of the paper is as follows: Taking Liberties with the Last Word
Guest Blogger
War and Peace in Time and Space
Mary L. Dudziak
My new paper War and Peace in Time and Space was inspired/provoked by the indomitable Yxta Maya Murray, who invited me to participate in a symposium on Law, Peace and Violence: Jurisprudence and the Possibilities of Peace at Seattle University Law School. Yxta's commitment to peace as something that does or can truly exist in the world helped me to see that, in my work on wartime, I was not taking peace seriously enough. This led me to revisit the question of what peace might be in a nation engaged in ongoing armed conflict. My answer to this puzzle is to turn to geography/spaciality. I will keep working on this in my next book, but here's my take so far. Tuesday, August 19, 2014
The Future as a Concept in National Security Law
Mary L. Dudziak
I will follow up soon on Frank Pasquale's thoughtful post on history and the crisis in Ferguson, Missouri. Today I'm posting a new paper from a conference on The Future of National Security Law. The topics of race and national security are intersecting before our eyes. But the paper takes up something more abstract: the concept of "The Future." Here's the abstract: Sunday, August 17, 2014
Texas Prosecutor Indicts Ham (you fill in the blank)
Stephen Griffin
It's been said that a prosecutor could get a grand jury to indict a ham sandwich. In the Texas case, it's a governor. At moments like these, I'm grateful to listservs I belong to, such as Conlawprof, for showing me that I'm not an outlier. Like a number of constitutional law scholars, I'm very troubled by the indictment of Rick Perry. I'm certainly no fan of Governor Perry, but closely analogous issues were discussed and argued out during the 1998 Clinton impeachment. Should prosecutors clothed with the authority of a grand jury intervene in matters of high (or low) politics with criminal indictments? I say no. If they have facts to present, provide them to the legislature or whatever body is tasked with the responsibility of impeachment. Saturday, August 16, 2014
Politics By Other Means
Guest Blogger
Thursday, August 14, 2014
The Historical Resonance of Ferguson
Frank Pasquale
When I was in college, I was fortunate enough to take a history course from Morton Horwitz, on the Warren Court. It was inspiring on many levels. We learned about the NAACP's decades-long strategy to win civil rights for African Americans. We saw that legal struggle result in a series of legendary Supreme Court decisions.We also discussed the global pressures on the US to reform--how it was embarrassed, in the midst of Cold War rivalries, to be criticizing Soviet abuses while tolerating so many outrageously racist practices on its own soil. Lubet on Free Speech and Salaita
Andrew Koppelman
My friend and colleague Steven Lubet has just published a short piece in the Chicago Tribune concerning the controversy over the University of Illinois's decision not to hire Prof. Steven Salaita: The Assault on Journalism in Ferguson, Missouri
Frank Pasquale
The city of Ferguson, Missouri now looks like a war zone. Rapidly escalating responses to protest by a militarized police force have created dangerous conditions. About the only defense people have is some public attention to their plight. And now even that is being shut down by a series of intimidation tactics. Consider the following: Tuesday, August 12, 2014
Dana Milbank on the death of American optimism
Sandy Levinson
Dana Milbank has a column in the Washington Post about the death of American optimism about the future, based primarily on a Wall Street Journal/NBC poll of Americans. "Thus, When asked if “life for our children’s generation will be better than it has been for us,” fully 76 percent said they do not have such confidence. Only 21 percent did. That was the worst ever recorded in the poll; in 2001, 49 percent were confident and 43 percent not.." As one might expect given the percentages, pessimism cuts across class, racial, and ethnic lines, even if there are differences in the level of pessimism. " In other words, the gloom goes beyond wealth, gender, race, region, age
and ideology. This fractious nation is united by one thing: lost faith
in the United States." Thomas on the Seventh Amendment in Puerto Rico
Jason Mazzone
My colleague Suja Thomas has a very interesting post at the Volokh Conspiracy on a recent decision of a district court that the Seventh Amendment requires the availability of civil juries in Puerto Rican courts. The decision is a bit of a mind bender. There is a key background issue of whether Puerto Rico is an incorporated or unincorporated territory and the district court appears to have hedged its bets on that question by characterizing the right to a jury trial as so fundamental that it must apply in either case. To reach that result, the district court says also that the Seventh Amendment jury trial right applies in state courts. And to get there (because the Supreme Court has not incorporated the Seventh Amendment right against the states), the district court views the incorporation issue open for new examination after McDonald v Chicago. Suja, an expert on the historic role of civil juries, does a nice job of laying out the complexities of the case and previewing what all of this might mean for Puerto Rico (assuming the First Circuit doesn't reverse) -- and beyond.
ObamaCare Plaintiffs’ 2012 Supreme Court Briefs Read the Act Exactly As They Now Say It Cannot be Read (and Why that Matters for Chevron)
Abbe Gluck
I have another piece out in Politico on the Halbig and King (Obamacare subsidies) cases. Here are a few excerpts (a lot more in the full link): Monday, August 11, 2014
Lawrence Summers on constitutional reform
Sandy Levinson
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Books by Balkinization Bloggers Linda C. McClain and Aziza Ahmed, The Routledge Companion to Gender and COVID-19 (Routledge, 2024) David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024) 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 |