Balkinization: August 2018

Balkinization
an unanticipated consequence of
Jack M. Balkin

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 Rahman
sabeel.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

Call for Papers -- ACS Junior Scholars Public Law Workshop at the AALS, Jan 3, 2019

The Best Originalist Speech Ever Given

Constitutional Democracy in Crisis? The Right-Wing Populist Surge

Still the President: Garland, Kavanaugh, Trump

The Most Cited Women in American Legal Scholarship

Fun with Citation Counts: My Multiple Names

Constitutional Democracy in Crisis?

Just A Few Blogs

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Tuesday, August 28, 2018

Call for Papers -- ACS Junior Scholars Public Law Workshop at the AALS, Jan 3, 2019

Joseph Fishkin

For the third year running, ACS is going to run a junior scholars workshop on January 3, 2019 in conjunction with the AALS conference in New Orleans. If you are a new-ish law professor (10 years or less in a tenure-track job) and you have a paper in "any field related to public law, including but not limited to: constitutional law, administrative law, antidiscrimination law, criminal law, environmental law, family law, federal courts, financial regulation, public international law, social welfare law, and workplace law," then please consider submitting it to us! More from the announcement:

A committee composed of members of ACS’s Board of Academic Advisors will select approximately 10 papers, and each selected author will have the opportunity to discuss his/her paper, as well as the paper of another author, in depth with two experienced scholars from the ACS network, which includes Erwin Chemerinsky, Pamela Karlan, Bill Marshall, Reva Siegel, Mark Tushnet, and Adam Winkler.

More details here. The deadline is October 19.

Posted 11:01 AM by Joseph Fishkin [link]

Sunday, August 26, 2018

The Best Originalist Speech Ever Given

Gerard N. Magliocca

I was thinking recently about what might be considered the most eloquent originalist statement ever given. There are many writings that one could nominate, but what about speeches? One candidate is Attorney General Edwin Meese's speech to the American Bar Association in 1985, in which he made a strong case for using "original intention" as an interpretive baseline. A significant flaw in that talk, though, is that Meese claimed that the incorporation of the Bill of Rights was Exhibit A in what such an approach would reject, which was completely wrong on the facts.

I then arrived at a counterintuitive conclusion. Perhaps the best originalist speech was given by an elected official who was liberal. And she did so in a very high-profile setting watched by millions of Americans. Indeed, aside from one reference to Woodrow Wilson, the entire address focuses on the original public meaning of a specific phrase in the Constitution. And she used an originalist approach even after expressly conceding that she would not have been considered part of that original public meaning in 1787. Here is the speech that I'm talking about, which has aged rather well:

Posted 10:03 PM by Gerard N. Magliocca [link] (23) comments

Constitutional Democracy in Crisis? The Right-Wing Populist Surge

Mark Graber

An explanation for the right-wing populist surge on verfassungsblog

Posted 4:30 PM by Mark Graber [link]

Still the President: Garland, Kavanaugh, Trump

Jason Mazzone

When, after the death of Justice Scalia in February of 2016, President Obama nominated Merrick Garland to the Supreme Court, Senate Republicans took the position that because Scalia had died in a presidential election year, the choice of the next Supreme Court justice should be made by the next President. They therefore refused to proceed with any consideration of the Garland nomination. Senate Republicans claimed their position had nothing to do with Obama or Garland but rather they were merely adhering to a longstanding tradition of not considering Supreme Court nominees in an election year. As Rob Kar and I showed, however, there was no such tradition. Indeed, the tradition supported consideration of the Garland nomination. And, on the merits, we said, there was no constitutional basis for asserting a power (or duty) to divest a sitting President of his authority, under Article II, section 2, to “nominate . . . judges of the Supreme Court.” A President in his final year in office is still the President with all of the powers Article II gives him.

Here we go again.

Some Senate Democrats (who, two years ago, themselves complained about the way their Republican colleagues were treating Obama and Garland) say that consideration of Brett Kavanaugh to replace Justice Kennedy must be delayed until after the conclusion of the Mueller investigation. Their argument is that President Trump might have engaged in criminal conduct and, if so, he should not be choosing Supreme Court justices particularly given that the Court might be asked in the future to rule on an issue (for example, can a sitting President be indicted?) involving Trump himself. This argument should be soundly rejected.

Under Article II, there is “a President” who, unless removed from office, resigns, dies or becomes incapacitated, serves a fixed “term of four years.” During that “term,” the President “shall have Power” as defined by the Constitution. A President under investigation, indicted, and even (if it comes to it) convicted by a trial court is still the President. Indeed, a President impeached by the House of Representatives and even on trial by the Senate is still the President. Even if there is a real live other person waiting in the wings—a Vice President who would take office if the President is removed, for instance, or the winner of a presidential election awaiting inauguration—the powers of the sitting President are not reduced. We don’t designate somebody else (a decorated General, for instance) Commander-in-Chief because the sitting President is or might be on his way out the White House door. Presidential powers are vested in one office with one office-holder.

To be sure, the Senate has a good deal of discretion in choosing how to perform its constitutional duty of advice and consent. But the notion that a nomination by the sitting President is somehow defective or should be set aside or tracked differently because of the status of the nominating President (he is in his last months of office, he is under criminal investigation, he might be removed) has no constitutional basis. Under the Constitution, the President has just one status: President.

Posted 10:36 AM by Jason Mazzone [link]

Saturday, August 25, 2018

The Most Cited Women in American Legal Scholarship

This is my very rough attempt at a list of the most cited women in American legal scholarship today. It looks at citation counts on Westlaw between 2013 and 2017.

I apologize in advance for the ad hoc nature of the list but hope it will give some well-deserved recognition to some very fine scholars.

I used the existing citation counts from Brian Leiter's blog posts (which, in turn, rely on Greg Sisk's work). I used his latest numbers from different scholarly specialties (with a few modifications) and updated the numbers from his previous lists of most cited scholars. I also made individual searches for people I thought might not be on Brian's lists to make sure that they were included.

I rounded the numbers to the nearest 10 citations (unless the count was exactly at 5). It is important to recognize that, considered over a five year span, differences of even 50 or so citations are not really all that significant.

I tried as best I could to locate and include everyone with over 500 citations for the period between 2013 and 2017.

Please feel free to e-mail me at jackbalkin@yahoo.com if you spot omissions or errors. I will try to update the list as I discover more information.

If you like, you can perform the citation counts yourself by searching the JLR (journals and law reviews) section of Westlaw using the formula:

TE(FirstName /2 LastName) and date (aft 2012) and date (bef 2018).

If a person writes under multiple names (as I have), please use the following formula:

TE((FirstName1 or FirstName2) /2 (LastName1 or Lastname2)) and date (aft 2012) and date (bef 2018).

I would like to make this list more systematic in the future. Please contact me if you are interested in organizing the process.

	Name	School	Citations	Age in 2018
1	Reva Siegel	Yale University	1340	62
2	Michelle Alexander	Union Theological Seminary	1030	50
3	Judith Resnik	Yale University	1000	68
4	Deborah Rhode	Stanford University	980	66
5	Martha Nussbaum	University of Chicago	930	71
6	Lee Epstein	Washington University, St. Louis	840	60
7	Martha Minow	Harvard University	820	63
8	Jody Freeman	Harvard University	800	54
9	Catharine MacKinnon	University of Michigan	780	71
10	Rachel Barkow	New York University	775	47
11	Kimberle Crenshaw	Columbia University	710	59
12	Pamela Karlan	Stanford University	670	59
13	Oona Hathaway	Yale University	660	45
14	Heather Gerken	Yale University	650	49
15-T	Pamela Samuelson	University of California-Berkeley	640	69
15-T	Rochelle Dreyfuss	New York University	640	71
15-T	Carol Rose	Yale University/Arizona	640	78
18	Jill Fisch	University of Pennsylvania	625	58
19	Julie Cohen	Georgetown University	620	54
20-T	Lisa Bressman	Vanderbilt University	615	52
20-T	Gillian Metzger	Columbia University	615	53
22-T	Roberta Romano	Yale University	580	66
22-T	Abbe Gluck	Yale University	580	43
22-T	Dorothy Roberts	University of Pennsylvania	580	62
25	Christine Jolls	Yale University	560	51
26-T	Danielle Keats Citron	University of Maryland	550	49
26-T	Rebecca Tushnet	Harvard University	550	45
28	Carol Steiker	Harvard University	530	60
29-T	Robin West	Georgetown University	520	64
29-T	Elizabeth Scott	Columbia University	520	73
29-T	Martha Fineman	Emory University	520	68
32	Naomi Cahn	George Washington University	500	60

I should also add that although Kathleen M. Sullivan, the former dean of Stanford Law School, is now in full-time law practice, she has 665 citations between 2013 and 2017, which would place her 13th on the list.

Posted 1:05 PM by JB [link]

Thursday, August 23, 2018

Fun with Citation Counts: My Multiple Names

Once again, it's time for every law professor's favorite guilty pleasure, the Greg Sisk/Brian Leiter lists of citation counts. For this week and next Brian is featuring on his blog a list of the top law faculties by median and mean citations, and the top individual scholars in various areas of legal scholarship.

Sisk's and Leiter's method for counting citations performs searches in the law journals section of Westlaw for a four year period (2013-2017) using the formula (firstname /2 lastname). In my case, that would be (Jack /2 Balkin).

[The full Westlaw formula, in case you are interested, is: TE(Jack /2 Balkin) and date (aft 2012) and date (bef 2018).]

Unfortunately for me, I wrote under a different name, J.M. Balkin, until 2001. So the Sisk-Leiter count does not pick up citations to these earlier works, which include my first 52 articles and my first two books.

Searching with (Jack /2 Balkin) yields 1585 citations. But searching with (Jack or "J.M." /2 Balkin) yields 1740.

Greg Sisk has graciously agreed to include both of my names (Jack and J.M.) in his next citation count study several years from now. He is not going to update my count in his current faculty lists, however, because he focuses on the total citations for entire law school faculties. So the difference will have no effect on the median number of citations for Yale faculty and only a very minor effect on the mean.

Brian Leiter has explained that he does not plan to update the citation counts in this year's lists of individual scholars (although I assume he will search for both of my names in future lists). He explained that there could be many other people who are in a similar position, so it would be ad hoc only to update my citation counts. Moreover, doing so would only bump me up two or three slots in his lists.

However, the lesson here is that if you have ever written under more than one name (whether first or last), you should let Greg Sisk know in advance.

There are, however, some amusing effects of using the correct citation counts.

First, updating this list of most cited originalist scholars courtesy of Michael Ramsey, I am now the most cited originalist in the American legal academy.

Second, among the top five most cited originalist scholars in the American legal academy, (me, Akhil Amar, Michael McConnell, Randy Barnett, and Lawrence Solum) three are liberals and one is a libertarian. Only one is a political conservative.

What this means for originalism I leave to the reader to figure out.

Posted 8:50 PM by JB [link]

Constitutional Democracy in Crisis?

Mark Graber

Last fall, Sandy Levinson, Mark Tushnet and I asked thirty-five of the leading experts on constitutionalism to consider the state of constitutional democracy with respect to particular countries, regions and problems. Thanks to amazing responses and even more amazing work by Oxford University Press, Constitutional Democracy in Crisis? ships today and is available for purchase at what we think is a more than reasonable price (39.99) for a more than 700 page volume. The good news is that all essays are designed for a general reader. If you are simply interested in what is going on in South America or Australia, want to know the impact of climate change on constitutional democracy, or wish to learn about both right-wing and left-wing populist movements, you can find an essay to your liking that does not presume three advanced degrees.

We were moved to produce this volume because constitutional democracies and constitutional democracy appear in trouble throughout the world. The United States, Israel, Turkey, South Africa, Poland and Venezuela seem particular problem children, but the Catalonian secession in Spain, Brexit in the United Kingdom, the rise of authoritarian constitutionalism in South Asia, the overthrow of the Morsi government in Egypt, and the continued weakness of constitutional democracy throughout Africa and Latin American suggest that no earthly haven is immune to whatever is ailing regimes that purport to be constitutional and democratic. Scholars speak of “Democracy in Retreat,” a “democratic recession,” “democratic backsliding,” “democratic deconsolidation,” “constitutional retrogression,” “constitutional failure,” and “constitutional rot.”

This global concern with the health of constitutional democracy has many causes. During the second decade of the twenty-first century, the global momentum towards constitutional democracy stalled and perhaps has begun to reverse. Across the universe of constitutional democracies, such conventional foundations of constitutional democracy as a strong middle class are weakening. Many past models of post-transition constitutional democracies, most notably Hungary and South Africa, are experiencing severe constitutional problems, with no new models of constitutional democracy emerging. Globalization, the Great Recession, terrorism, and other global phenomena create common afflictions for constitutional democracies around the world. Constitutional democracy has more difficult tasks than at any time in history and the costs of mistakes is higher, potentially catastrophic. For the first time since the Great Depression, when proto-fascist movements gained some traction, if not the Civil War, constitutional democracy in the United States appears to be weakening.

The constitutional adventures of Donald Trump, the Trump administration and the Republican majority in the Congress of the United States may nevertheless suggest that perceptions of a global constitutional crisis reflect nothing more than American parochialism and the exaggerated role the United States plays in comparative constitutionalism. Constitutional democracies are constantly in crisis. The average constitution has a life span of less than twenty years. Too obsessive a focus on the contemporary plight of such regimes as United States, Hungary, South Africa, Israel, Poland and Venezuela risks imagining a golden age in which the vast majority of the world’s constitutional democracies were stable. What many liberals and progressives regard as weakening the constitutional foundations of constitutional democracy may merely be the success of political rivals who are making fair use of the levers of constitutional democracy to implement their notions of desirable religious, immigration and economic policies. Even if we concede that the democratic processes in the United States and other regimes that facilitated the rise of right-wing populism are badly flawed, the success of such movements globally demonstrates that a substantial and increasingly number of people in constitutional democracies are rejecting the dominant version of liberal constitutional democracy and successfully using existing constitutional forms to secure anti-liberal visions.

Part I is devoted to background material on the nature of constitutional crises (Jack Balkin), general trends in constitutional democracy over the past decades (Tom Ginsburg/Aziz Huq, Zachary Elkins) and the fall of the Weimar Republic (Ellen Kennedy), the most important event during the last moment of perceived global constitutional crisis. Part II focuses on the state of constitutional democracy in specific regimes or regions. We have included essays on such contemporary problem children of constitutional democracy as the United States (Eric Posner; Jennifer Hochschild), Hungary (Gabor Halmai), Turkey (Ozan Varol), Venezuela (David Landau), Israel (Yaniv Roznai), Poland (Wojciech Sadursky). Spain (Victor Ferreres Comella), South Africa (Heniz Klug), and the European Union (Michaela Hailbronner; J.H.H. Weiler), constitutional democracies that appear to be stable such as Canada (Richard Albert/ Michael Pal) and Australia (Rosalind Dixon/Anika Gauja), and constitutional democracies that appear to be experiencing some turbulence that may or may not amount to a weakened commitment to constitutional democracy such as Mexico (Ana Micaela Alterio/Roberto Niembro), India (Manoj Mate), the United Kingdom (Erin Delaney), and France (Nicolas Roussellier). Part II also includes essays on the state of constitutional democracy in Africa (James Thuo Gathii) and in South America (Roberto Gargarella), regions that suffer from chronic constitutional problems, as well as an essay on constitutional democracy in South Asia (David Law/ Chien-Chih Lin), where alternatives to constitutional democracy have long enjoyed public support. Part III examines the influence on constitutional democracy of such global forces as climate change (Robert Percival), religious fundamentalism (Ran Hirschl and Ayelet Shachar), terrorism (Oren Gross), economic inequality (Ganesh Sitaraman), globalization (David Schneiderman), immigration (T. Alexander Aleinikoff), populism (Samuel Issacharoff) and racism/ethnocentrism (Desmond King/Rogers Smith), as well as a studies on the increasing weaknesses of political parties across the universe of constitutional democracy (Kim Lane Scheppele) and the role of constitutional design in maintaining or subverting constitutional democracy (Sujit Choudhry). Finally, in Part IV, we (the editors and Joseph Weiler) separately offer our thoughts on the contemporary state of constitutional democracy.

This collection serves three purposes. The essays provide a general guide to the state of constitutional democracy during the second decade of the twenty-first century that should be useful for scholars, students and general readers. The essays provide frameworks and information for assessing the contemporary state of constitutional democracy. Our concern is whether a global crisis of constitutional democracy is taking place, or whether the recent afflictions suffered by many constitutional democracies reflect only the success of constitutional democracy in the past, chronic problems with particular constitutional democracies, problems distinctive to particular democratic regimes or whether many commentators are confusing attacks on political liberalism or transformative constitutionalism with a weakening of constitutional democracy. The essays diagnose the causes of the present afflictions of constitutional democracies in particular regimes, regions, and across the globe. We do not, however, spent much energy offering cures, believing at this stage diagnosis is far more important and not having any ready-made cures to offer. As Abraham Lincoln said in his “House Divided Speech,” “If we could first know where we are, and whither we are tending, we could then better judge what to do, and how to do it.”

Posted 9:22 AM by Mark Graber [link]

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