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Balkinization
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Thursday, March 03, 2016
Confronting the Interpreter
Lawrence Solan
Who Voted for David Duke?
Stephen Griffin
If your question is why would anyone vote for Trump, you might keep in mind the results of the 1991 election for governor of Louisiana, the runoff between Edwin Edwards and David Duke (there was a notable bumper sticker: "Vote for the Crook. It's Important"). I was living here and recall well-documented New Orleans Times-Picayune articles showing that Duke was a white supremacist, an anti-Semite, and an admirer of Adolf Hitler. Duke received 39% of the statewide vote. Not even close to winning, of course, but still, in the end over 670,000 people voted for a person with these views. Most of them are doubtless still voting, I don't think they went anywhere. I generally doubt whether all of these citizens were really white supremacists. Rather, they were willing to overlook Duke's reprehensible views because he articulated a viewpoint important to them on other grounds (although grounds still race-related I'm sure, let's put it that way). This may be relevant to understanding the Trump phenomenon. So even if Trump didn't "disavow" Duke, I doubt whether his vote totals would be much affected.
Republicans Play Liar's Poker
Mark Graber
Wednesday, March 02, 2016
The Problems of a Contested Nominating Convention
Gerard N. Magliocca
There are two plausible scenarios for the Republican presidential race. One is that Donald Trump will be the nominee. The other is that Trump will have a plurality but not a majority of the delegates when the GOP goes into its convention in Cleveland. This sort of "brokered convention" would be a dream for many political enthusiasts, but there are some tricky problems that I want to discuss. Tuesday, March 01, 2016
The Persistence of Memory (recalling Salvador Dali and Antonin Scalia)
Mark Tushnet
Mark Rylance and the Law
Mark Tushnet
Monday, February 29, 2016
Faulty Federalism, Texas Edition: How Texas Hopes to Gut the Right to Abortion
David Gans
Saturday, February 27, 2016
The Scalia Vacancy and Informal Constitutional Change
Stephen Griffin
Wednesday, February 24, 2016
Does the Biden speech undermine the case for Supreme Court confirmation hearings?
Guest Blogger
John Witt Tuesday, February 23, 2016
Holding A National Referendum
Gerard N. Magliocca
I just finished reading my co-blogger Stephen Griffin's new book (psst--look to the right and you can see how to buy one) and want to say something about his qualified endorsement of creating a process to hold a national referendum. Monday, February 22, 2016
March 3 Event at UNC: Federalism in the Rehnquist and Roberts Courts
Jason Mazzone
On March 3, 2016, the North Carolina Law Review will host a colloquy on Federalism in the Rehnquist and Roberts Courts. The colloquy begins at 4:15 pm at the UNC School of Law. Are liberals and conservatives being strategic in constitutional theory? Not necessarily.
JB
Over at Law and Liberty, Mike Rappaport argues that my predictions about how liberal constitutional theory will evolve if there is a new liberal majority on the Supreme Court show that (1) liberal constitutional theories are merely strategic; (2) that liberals have not acted in good faith about constitutional theory; and (3) that I and other liberal theorists actively support this strategic, bad-faith approach. Friday, February 19, 2016
The Constitution in 2020, er.... 2016
JB
Why Originalism Will Not Fade Away
JB
Eric Posner argues that, without Antonin Scalia on the Supreme Court, originalism will gradually fade away. Why would law professors and litigators spend their time making originalist constitutional arguments given that the key players on the Court don't really care about originalism, and the only Justice who does care, Clarence Thomas, goes his own way? Thursday, February 18, 2016
The Matthew Stephenson Moment
Richard Primus
Constitutional hardball in Justice Scalia’s country
Joseph Fishkin
Let me start by stating the really obvious—not a point about precedents or conventions but just a practical point. Imagine that Mitt Romney were President right now. Senator Mitch McConnell and the rest of the Republican Senate majority would not be arguing that Justice Scalia’s seat on the Court should remain vacant until a new President is sworn in. They would be arguing just the opposite: Instead of “delay, delay, delay,” the strategy would be “confirm, confirm, confirm”—make absolutely sure the President’s choice is confirmed before any possibility of an adverse election. I don’t think there is any serious question about this. Thus, it’s fair to say that the Senate Republican leaders have made their rule clear. The rule is as follows: for a Supreme Court vacancy arising in February 2016, Democrats must win two consecutive Presidential elections—2012 and 2016—in order to appoint a successor. Republican victory in either of those elections would mean that a Republican president chooses the new Justice. Wednesday, February 17, 2016
Conventions on Replacing a Justice in a Presidential Election Year
Gerard N. Magliocca
I think there is some confusion in the ongoing discussion about the propriety of nominating or not confirming a Justice in a presidential election year, so I thought I would lay out some helpful points. Tuesday, February 16, 2016
Justice Scalia's Orwellian Jurisprudence
Mark Graber
The tragedy of Antonin Scalia
Andrew Koppelman
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Books by Balkinization Bloggers 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 |