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Friday, January 20, 2017
On Adrian Vermeule's Law's Abnegation
Sandy Levinson
Symposium on Adrian Vermeule, Law's Abnegation
JB
This week at Balkinization we are featuring a symposium on Adrian Vermeule's new book, Law's Abnegation: From Law's Empire to the Administrative State (Harvard University Press 2016). We'll have contributions from David Dyzenhaus (University of Toronto), Jeffrey Pojanowski (Notre Dame), Thursday, January 19, 2017
Barack Obama's failed attempt to overthrow the Reagan Regime
JB
Over at Vox, I have a new piece expanding on my earlier assessment of Obama's presidency. The Supreme Court and President Trump Off to a Not-So-Great Start
Gerard N. Magliocca
After Barack Obama was elected President in 2008, Chief Justice John Roberts invited the President-elect to pay a courtesy call on the Court prior to his inauguration. The President-elect and Joe Biden accepted his invitation and met with eight of the nine Justices (Justice Alito was the only no-show). President Mayhem (with a war powers prediction)
Stephen Griffin
You may have seen those commercials for Allstate that feature a character called "Mr. Mayhem," that's what I had in mind. Following up, we can usefully define the notion of the "Trump premium." The premium is the difference between how Trump will operate as president and the other "regular Republican" candidates in the mix a year ago. Some of the policies being announced, particularly by members of Congress, would be largely the same were we about to experience the Cruz administration, the Rubio administration and so on. After all, the Republican Congress made a number of practice runs, proposing legislation that they knew President Obama would veto. But there are some differences as well. Wednesday, January 18, 2017
A Note on the Original Meaning of "Emolument"
John Mikhail
Tuesday, January 17, 2017
Bo Burt on "Justice and Empathy"
Mark Tushnet
Monday, January 16, 2017
More on Hamilton, Jefferson, Burr, and the Election of 1800
Marty Lederman
Alexander Hamilton explains why Aaron Burr should not become president
JB
After the 1800 election was thrown into the House of Representatives, Alexander Hamilton wrote this letter urging Representative James Bayard of Delaware to support Thomas Jefferson over Aaron Burr. Hamilton argued that Burr, whom he knew well, had qualities that would make him especially dangerous if he ever gained the powers of the presidency. In particular, Hamilton noted that Burr had no principles, constantly broke his promises, delighted in deceiving the credulous, was heavily in debt, and could easily be corrupted by foreign powers. "Disgrace abroad [and] ruin at home," Hamilton concluded, "are the probable fruits of his elevation." "Important Shifts in Constitutional Doctrines"
Mark Tushnet
Sunday, January 15, 2017
So what would it take to think about constitutional revision?
Sandy Levinson
It is a commonplace among constitutional design buffs that, with some interesting exceptions, significant constitutional change usually takes place against the background of catastrophes or, at least, train wrecks. The paradigm cases for the former are Germany and Japan, though the spate of constitution drafting following the dissolution of the Soviet Union or the end of apartheid in South Africa can also be cited for the general proposition. And, indeed, one could cite the so-called Reconstruction Amendments as well, for they were clearly responses to the carnage of secession and civil war (and, of course, if one is an Ackermanian, the Fourteenth Amendment especially is hard to square with any conventional theory of Article V amendment). If, on the other hand, things seem to be going reasonably well, then why think of constitutional reform? The fact that things are going well is taken as evidence--violating the correlation is not causation dictum--that the constitution in question is really working wonderfully, or that, at least, is isn't sufficiently broken to need any fixing. So let sleeping dogs lie, etc. Maintaining Constitutional Checks on the Cusp of a Trump Administration
Jonathan Hafetz
On January 18, the Supreme Court will hear argument in Ziglar v. Abassi (formerly Turkmen v. Ashcroft), the first of two cases this Term raising the question of civil liability for constitutional violations by federal officials. (I previously wrote here about the other case, Hernandez v. Mesa, which is scheduled for argument in February). Abassi will be heard by six members of the present eight-Justice Court (Justices Kagan and Sotomayor are recused because of their earlier participation in the case as the former Solicitor General and as a judge on the Second Circuit, respectively). Tuesday, January 10, 2017
Trump/Berlusconi
Stephen Griffin
Monday, January 09, 2017
Standing to Raise An Anti-Nepotism Claim?
Gerard N. Magliocca
Media reports say that the President-elect will name his son-in-law to a senior staff position in the White House. This will lead to claims that the appointment is invalid because federal law bars the President from hiring a relative to a federal position. (Arguably the remedy for violating this statute is that Trump's son-in-law just cannot receive a salary, but leave that aside for now). Why do we still have the filibuster?
Sandy Levinson
The Senate has now been in session a week, and the filibuster remains untouched. Why? One possibility is that Mitch McConnell, the Senate Majority Leader, is a man of integrity who actually believes in the importance of safeguarding minority rights. I reject the plausibility of any such explanation: There is no evidence that McConnell has any integrity at all; he is a Republican apparatchnik whose sole and exclusive concern is the success of the Republican Party. He correctly believed that it would not help the Republican Party to be seen as collaborating with President Obama, so he devoted the last eight years to making sure that Obama would be able to claim no accomplishments that required any cooperation from the Republican Party. He guessed wrong on the 2012 election, but we ought to recognize that it was in fact a close call. And it appears that the Republicans might have guessed right on what they could do, propagandistically, with regard to discarding Obamacare and riding it to victory in 2016. Sunday, January 08, 2017
Do the Rules of the Game Matter When You Are Playing in a Hurricane?
Heather K. Gerken
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Thursday, January 05, 2017
Electors and Emoluments: A Developmental Perspective
Stephen Griffin
The Extraterritorial Constitution and Government Accountability
Jonathan Hafetz
Next month, the Supreme Court will hear arguments in an important case regarding the Constitution’s extraterritorial application. The case, Hernandez v. Mesa, centers on the shooting of an unarmed Mexican teenager by a U.S. Border Patrol agent. The agent was on the U.S. side of the border when he shot the teenager, who was on the Mexican side. The teenager’s family brought a damages suit against the agent under Bivens v. Six Unknown Fed. Narcotics Agents.
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Books by Balkinization Bloggers ![]() 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 |