Balkinization   |
Balkinization
Jack Balkin: jackbalkin at yahoo.com Bruce Ackerman bruce.ackerman at yale.edu Ian Ayres ian.ayres at yale.edu Corey Brettschneider corey_brettschneider at brown.edu Mary Dudziak mary.l.dudziak at emory.edu Joey Fishkin joey.fishkin at gmail.com Heather Gerken heather.gerken at yale.edu Abbe Gluck abbe.gluck at yale.edu Mark Graber mgraber at law.umaryland.edu Stephen Griffin sgriffin at tulane.edu Jonathan Hafetz jonathan.hafetz at shu.edu Jeremy Kessler jkessler at law.columbia.edu Andrew Koppelman akoppelman at law.northwestern.edu Marty Lederman msl46 at law.georgetown.edu Sanford Levinson slevinson at law.utexas.edu David Luban david.luban at gmail.com Gerard Magliocca gmaglioc at iupui.edu Jason Mazzone mazzonej at illinois.edu Linda McClain lmcclain at bu.edu John Mikhail mikhail at law.georgetown.edu Frank Pasquale pasquale.frank at gmail.com Nate Persily npersily at gmail.com Michael Stokes Paulsen michaelstokespaulsen at gmail.com Deborah Pearlstein dpearlst at yu.edu Rick Pildes rick.pildes at nyu.edu David Pozen dpozen at law.columbia.edu Richard Primus raprimus at umich.edu K. Sabeel Rahmansabeel.rahman at brooklaw.edu Alice Ristroph alice.ristroph at shu.edu Neil Siegel siegel at law.duke.edu David Super david.super at law.georgetown.edu Brian Tamanaha btamanaha at wulaw.wustl.edu Nelson Tebbe nelson.tebbe at brooklaw.edu Mark Tushnet mtushnet at law.harvard.edu Adam Winkler winkler at ucla.edu Compendium of posts on Hobby Lobby and related cases The Anti-Torture Memos: Balkinization Posts on Torture, Interrogation, Detention, War Powers, and OLC The Anti-Torture Memos (arranged by topic) Recent Posts The Construction of Original Public Meaning Could Donald Trump win the Republican presidential nomination The Living Constitution: A Reconsideration Batson (A Footnote to Sandy Levinson) Announcing Broken Trust: Why I Wrote a Book on Dysfunctional Government and Constitutional Reform More on the separation of criminal law (and procedure) from "constitutional theory" Of Ferguson and Constitutional Theory Pro-Executive Power Scholarship as a Road Test of Original Public Meaning Theory Collected Posts on The Myth of the Cultural Jew Seven Jews—Twenty-One Opinions!!: A Response To My Colleagues Mixed Audiences and Responses: Thoughts on Roberta Kwall’s The Myth of the Cultural Jew Jewish Law as Invitation Cultural Judaism as an American, Jewish (and Israeli) Identity The Reality of Richly Textured Judaism: A Review of The Myth of the Cultural Jew, by Roberta Rosenthal Kwall Stephen Griffin's New Book! The Relevance of Intellectual History to Constitutional Law and Constitutional Change Myth and Mystification in Religious and Secular Judaism Jewish Identity Without Law or G-d The Wrong Myth? A symposium on Roberta Kwall, The Myth of the Cultural Jew: An introduction A Note on Interpretation and Construction in the New Originalism Collected Posts: Deconstructing Ferguson One Year Later A Third Reconstruction? Can the New Originalism Account for the Constitution, the Law of the Constitution, and our Constitutional Tradition? Detecting Discrimination In Policing (Or, The Dangers of Counterfactual Causal Thinking…) First Government opposition brief in nonprofit cases challenging the contraceptive coverage accommodation Have the Politics of Ferguson Improved? How Can We Tell? The New Originalism and Living Constitutionalism: A Reconsideration Is Scott Walker Running for Dictator?
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Monday, August 31, 2015
The Construction of Original Public Meaning
JB
I've posted a draft of my latest article, The Construction of Original Public Meaning, on SSRN. It's a response to a really wonderful recent work of scholarship, Founding-Era Translations of the Constitution, by Christina Mulligan, Michael Douma, Hans Lind and Brian Quinn. Sunday, August 30, 2015
Could Donald Trump win the Republican presidential nomination
Sandy Levinson
The quick and dirty answer to the question is yes. And the reason has to do with the formal rules adopted by the Republican Party with regard to the allocation of delegates to the 2016 Convention, to be held in Cleveland in June. Four states are allowed to have their primaries in February--Iowa, South Carolina, New Hampshire, and Nevada--and then the scramble begins. A whole bunch of states will have their primaries before March 15. AND THE RULES REQUIRE THAT ALL OF THESE STATES OPERATE ON THE BASIS OF PROPORTIONAL REPRESENTATION (as is true for the first four states). Then things get interesting, for it is up to the states themselves to decide whether delegates will be allocated by proportional representation or winner take all. The current calendar for the Republican primaries indicates that the following states will be holding their primaries after March 15: Arizona, Utah, Wisconsin, Connecticut, Delaware, Maryland, Pennsylvania, Rhode Island, Indiana, Nebraska, West Virginia, Oregon, California, Montana, New Jersey, New Mexico, South Dakota, and DC. Apparently dates are not yet firmed up for New York, North Dakota, Utah, Colorado, Idaho, Kansas, Maine, Washington, and Wyoming. Game theory suggests that there will be advantages to coming late precisely because it looks almost certain that there will be at least five or six candidates still duking it out by the Spring. (I was on a program several weeks ago with the leader of the Travis County Republican Party, who predicted that there will be at least 5 or 6 candidates in the Texas primary on Super Tuesday, March 1. It seems altogether likely that Trump will have more delegates on March 15 than any other single candidate, even if, as I am assuming, he has, say, "only" 30% of the total. But if six or seven others are dividing up the remaining 70%, that obviously means that none of the others is likely to be all that close to Trump. The Living Constitution: A Reconsideration
Stephen Griffin
Tuesday, August 25, 2015
Batson (A Footnote to Sandy Levinson)
Jason Mazzone
A small footnote to Sandy Levinson's insightful post on the separation of criminal law and procedure from constitutional theory. A few years ago I wrote a short paper on remedies for Batson violations. The impetus for the paper is that in Batson the Supreme Court did not identify the proper remedy for a Batson violation. The Batson Court addressed remedies in a single ambiguous footnote that identified two possible remedies: discharging the venire and selecting a new panel or reseating the improperly stricken juror. This footnote did not, however, specify whether these were the only permissible remedies, and it did not explain when one of the two is more appropriate than the other. (Subsequent Supreme Court cases also have not clarified what the appropriate remedy is for a Batson violation and the Court has never overturned a remedy imposed by a trial judge.) I was interested in exploring the kind of remedies trial judges have imposed and identifying any relevant differences between the practices of federal and state courts. I soon faced a problem: although Batson challenges are not uncommon, it was very hard to find instances where trial judges ever got to the remedy question because almost all challenges failed. In the course of the project I contacted hundreds of prosecutors and defense lawyers around the country to ask them to tell me of cases where they themselves had encountered a successful Batson challenge or to tell me about cases they knew about in which a trial judge had reached the remedy stage. The overwhelming response, even from trial lawyers with decades of experience, was that nobody knew of any successful Batson challenge. The lawyers I spoke with also had a fairly consistent explanation as to why Batson challenges failed: a judge who holds that Batson has been violated is ruling that (a) the attorney standing before the court discriminated on the basis of race and (b) when asked to explain his actions, the attorney (offering up a race-neutral reason for the strike) lied to the court. Few judges want to label lawyers who appear regularly before them bigoted liars. Here, then, bridging the divide between criminal and non-criminal cases in constitutional law is instructive. Batson represents an unusual context in which the specific state actor alleged to have violated equal protection is right there before the judge (and will be again tomorrow and next year). This isn't usually so in other kinds of equal protection cases: the lawyer is there only in a representative capacity and if an equal protection violation is found to have occurred it isn't the lawyer who is smeared. The failure of Batson (if failure there is) might well lie in the Court's own failure to recognize the impediments to applying equal protection when the alleged bad state actor is also the attorney arguing the case.
Friday, August 21, 2015
Announcing Broken Trust: Why I Wrote a Book on Dysfunctional Government and Constitutional Reform
Stephen Griffin
More on the separation of criminal law (and procedure) from "constitutional theory"
Sandy Levinson
I want to elaborate some on Mark Graber's extraordinarily incisive and important post on why "constitutional theorists" are obsessed by, say, Obergefell and have almost literally nothing to say about Ferguson. With regard to the self-conscious group of "constitutional theorists" in the legal academy, I think it's fair to say that extremely few are in fact interested in issues raised by the criminal justice system, save, of course, for such issues as the validity of criminalizing "hate speech" or abortion, etc. or, on occasion, capital punishment. TWith regard to "constitutional criminal proceure," I think it's accurate to suggest that only Akhil Reed Amar, among "major constitutional theorists," has written extensively about the subject; his views are typically interesting and idiosyncratic. Frankly, I have no idea to what extent they have been influential among the "criminal procedure" community. Of Ferguson and Constitutional Theory
Mark Graber
Thursday, August 20, 2015
Pro-Executive Power Scholarship as a Road Test of Original Public Meaning Theory
Stephen Griffin
Collected Posts on The Myth of the Cultural Jew
JB
Here are the collected posts for the Balkinization symposium on Roberta Kwall, The Myth of the Cultural Jew: Culture and Law in Jewish Tradition (Oxford University Press 2015): Seven Jews—Twenty-One Opinions!!: A Response To My Colleagues
Guest Blogger
Wednesday, August 19, 2015
Mixed Audiences and Responses: Thoughts on Roberta Kwall’s The Myth of the Cultural Jew
Sandy Levinson
Jewish Law as Invitation
Guest Blogger
Shari Motro Tuesday, August 18, 2015
Cultural Judaism as an American, Jewish (and Israeli) Identity
Mark Graber
The Reality of Richly Textured Judaism: A Review of The Myth of the Cultural Jew, by Roberta Rosenthal Kwall
Guest Blogger
Monday, August 17, 2015
Stephen Griffin's New Book!
Mark Graber
Congratulations to Stephen Griffin, who has just published Broken Trust: Dysfunctional Government and Constitutional Reform. I hope to say more in a future post about this short and engaging book that deepens existing critiques of the institutional breakdown in American politics and suggests a possible source of constitutional improvement. In the meantime, I will simply note that this was be a great challenge for students taking constitutional law just starting the new school year.
The Relevance of Intellectual History to Constitutional Law and Constitutional Change
Stephen Griffin
Myth and Mystification in Religious and Secular Judaism
JB
For the Symposium on Roberta Kwall, The Myth of the Cultural Jew Jewish Identity Without Law or G-d
Guest Blogger
Sunday, August 16, 2015
The Wrong Myth?
Guest Blogger
A symposium on Roberta Kwall, The Myth of the Cultural Jew: An introduction
Sandy Levinson
Friday, August 14, 2015
A Note on Interpretation and Construction in the New Originalism
JB
Steve Griffin has begun a very interesting set of posts on constitutional theory and interpretation, using the New Originalism as a foil. At this point in the process, I wanted to offer my own thoughts on an important issue that Steve raises about what the New Originalism is committed to. Knowing Steve's work, I expect that he will concur with some parts of what I say and differ with other parts. Collected Posts: Deconstructing Ferguson One Year Later
Guest Blogger
Tracey L. Meares, Yale Law School A Third Reconstruction?
Guest Blogger
Thursday, August 13, 2015
Can the New Originalism Account for the Constitution, the Law of the Constitution, and our Constitutional Tradition?
Stephen Griffin
Detecting Discrimination In Policing (Or, The Dangers of Counterfactual Causal Thinking…)
Guest Blogger
Issa Kohler-Hausmann First Government opposition brief in nonprofit cases challenging the contraceptive coverage accommodation
Marty Lederman
On Wednesday, the Solicitor General filed this brief in opposition to the two petitions for certiorari from the decision of the U.S. Court of Appeals for the D.C. Circuit in Priests for Life. He argues that Supreme Court review is not warranted because all six courts of appeals to have ruled thus far have "correctly rejected petitioners’ RFRA challenge to the accommodation, which exempts petitioners from any obligation to contract, arrange, pay, or refer for contraceptive coverage for employees or their beneficiaries." He does, however, signal (pp.30-31) that if and when the Court decides to consider the question, it should grant the petition in No. 14-1505, Roman Catholic Archbishop of Washington v. Burwell, principally for the reasons I discussed in this post. Wednesday, August 12, 2015
Have the Politics of Ferguson Improved? How Can We Tell?
Guest Blogger
David Schleicher, Yale Law School Tuesday, August 11, 2015
The New Originalism and Living Constitutionalism: A Reconsideration
Stephen Griffin
Is Scott Walker Running for Dictator?
Sandy Levinson
Scott Walker has announced that he will be prepared to go to war against Iran on his first day of office, presumably after "tearing up" the Iran agreement. There can be little doubt that the next president, even an uneducated lout like Gov. Walker, has the constitutional power to tear up the agreement. As Marty Lederman has ably demonstrated, the Deal is neither a treaty nor even an executive agreement truly binding on the United States. It is, I think it's fair to say (though Marty will correct me if I'm wrong)* a memorandum or understanding between the current President and Iran (and the other signatories) as to what they will do in the relatively near future should certain contingencies take place, i.e., life those sanctions the President has unilateral authority to lift in return for Iran's agreeing to comply with the deal. And so forth. So the question is whom we might be trusting to make such determinations in the future, insofar as the Iran Deal, whatever one thinks of it, highlights the power of the Executive Branch vis-a-vis Congress, certainly as a practical matter, perhaps as a constitutional matter.
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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 |