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
AMA: Chris Green asks about the metaphors of "off the wall" and "on the wall"
Chris Green: Shouldn’t the opposite of “off the wall” be “on the table”?
JB: That is Mark Tushnet's view. It depends on the underlying metaphor that underwrites your theory of constitutional change. I prefer "on the wall."
"On the table" suggests that a proposal is among those up for discussion; people gather around the table for rational debate about which proposal is best.
"On the wall" suggests the idea of "throwing things against the wall and seeing what sticks," which, in turn, connotes improvisation and experimentation with different memes and messages to see what catches on with the relevant public. If something sticks to the wall-- that is, if catches on with enough of the relevant public-- it is on the wall. Of course, if something stays on the wall long enough, it may dry out, calcify, and become part of the wall, so you may have to exert some effort to scrape it off later on.
If we use the metaphor of "on the table," we are saying that certain proposals were once thought irrational; but over time they became a topic for rational deliberation and discussion.
If we use the metaphor of "on the wall," we are saying that certain proposals were once regarded as crazy or socially disfavored among the relevant public. But because advocates experiment with different arguments and messaging strategies; because they gain support among powerful, influential, or well-connected figures; and because of political mobilization and the social spread of memes, people start to accept or adjust to these once disfavored ideas. They become reasonable through processes of social influence.
According to this metaphor, then, what people think is "reasonable" in law at any given point in time is partly (although not exclusively) determined by processes of social influence. After repeated attempts by entrepreneurs, certain things eventually "stick" and are "on the wall," although many legal claims, perhaps most, do not.
As you may know, my theory of ideology is about social influence and the spread of memes. So you can see why I would be attracted to the idea that, in the development of legal ideas, people are always throwing things against the wall to see what sticks.