Jack M. Balkin (born August 13,1956) is an American legal scholar. He is the Knight Professor of ConstitutionalLaw and the First Amendment at Yale Law School. Balkin is the founder and director of the Yale Information Society Project (ISP),a research center whose mission is "to study the implications of the Internet,telecommunications,and the new information technologies for law and society." He also directs the Knight Law and Media Program[1] and the Abrams Institute for Free Expression at Yale Law School.[2]
Balkin's 1998 book,Cultural Software:A Theory of Ideology,argued that ideology could be explained in terms of memes and processes of cultural evolution.[6] He argued that ideology is an effect of the "cultural software" or tools of understanding that become part of human beings and that are produced through the evolution and transmission of memes. At the same time,Balkin argued that all ideological and moral analysis presupposes a transcendent ideal of truth and "a transcendent value of justice."[7] Like T. K. Seung,he suggests that a transcendent idea of justice—although incapable of perfect realization and inevitably "indeterminate"—underlies political discourse and political persuasion.[8]
Balkin coined the term ideological drift to describe a phenomenon by which ideas and concepts change their political valence as they are introduced into new social and political contexts over time. Along with Duncan Kennedy,Balkin developed the field of legal semiotics. Legal semiotics shows how legal arguments feature recurrent tropes[9] or topoi that respond to each other and whose opposition is reproduced at higher and lower levels of doctrinal detail as legal doctrines evolve. Hence Balkin claimed that legal argument has a self-similar "crystalline"[10] or fractal structure.
Balkin employed deconstruction and related literary theories to argue that legal thought was structured in terms of "nested oppositions"—opposed ideas or concepts that turn into each other over time or otherwise depend on each other in novel and unexpected ways.[11] Although he draws on literary theory in his work on legal rhetoric,Balkin and his frequent co-author Sanford Levinson contend law is best analogized not to literature but to the performing arts such as music and drama.[12]
Partisan entrenchment
Balkin and Levinson argue that constitutional revolutions in judicial doctrine occur through a process called partisan entrenchment.[13] The party that controls the White House can stock the federal courts with new judges and Justices who have views on key constitutional issues roughly similar to those of the President. This shifts the median Justice on the Supreme Court and changes the complexion of the lower federal courts,which,in turn,eventually affects constitutional doctrine. If enough new judges are appointed in a relatively short period of time,changes will occur more quickly,producing a constitutional revolution. For example,a constitutional revolution occurred following the New Deal because Franklin Roosevelt was able to appoint eight new Supreme Court Justices between 1937 and 1941. Balkin and Levinson's theory contrasts with Bruce Ackerman's theory of constitutional moments,which argues that constitutional revolutions occur because of self-conscious acts of democratic mobilization that establish new standards of political legitimacy. Balkin and Levinson view partisan entrenchment as roughly but imperfectly democratic;it guarantees neither legitimate nor correct constitutional interpretation.
Constitutional interpretation
Balkin's constitutional theory,developed in his 2011 book,Living Originalism,is both originalist and living constitutionalist. He argues that there is no contradiction between these approaches,properly understood. Interpreters must follow the original meaning of the constitutional text but not its original expected application;hence much constitutional interpretation actually involves constitutional construction and state building by all three branches of government. Balkin's "framework originalism"[14] views the Constitution as an initial framework for governance that sets politics in motion and makes politics possible;it must be filled out over time through constitutional construction and state building. This process of building out the Constitution is living constitutionalism.
Constitutional rot
Balkin uses the term "constitutional rot" to describe the process by which democracies become less responsive to public will and less devoted to the public good over time.[15][16] Constitutional rot grows because of (1) increasing inequalities of income and wealth;(2) increasing political polarization and tribalism;(3) loss of trust between members of different parties and between the public and established institutions;and (4) policy disasters that show that government officials are not competent and/or cannot be trusted.[17] Balkin argues that the framers of the U.S. Constitution believed that all republics would decay over time,and they designed the Constitution so that it could ride out periods of constitutional rot in the hopes of a later renewal of republican institutions. Many of the Constitution's features,including staggered terms for the President,House,and Senate,separation of powers,federalism,and an independent judiciary,are forms of "republican insurance" designed to achieve this goal.[18]
Balkin distinguishes constitutional rot from constitutional crisis. Constitutional crisis is a period in which people reasonably believe that constitutional institutions are about to fail or have failed.[19] Because a key purpose of constitutions is to make politics possible,constitutions fail when people no longer try to struggle for power within the terms of the constitution. This may result in political paralysis,or in civil war,insurrections,secession,or attempted coups. Although the two concepts of crisis and rot are distinct,Balkin argues that an advanced case of constitutional rot can generate a constitutional crisis.[20]
Constitutional crisis
Balkin and Levinson offer a typology of constitutional crises.[21] In Type One crises,political actors publicly announce that they will no longer abide by the constitution and disobey direct judicial orders.[22] In Type Two crises,fidelity to the constitution leads to disaster,because people think that the Constitution prevents them from acting or because they believe that the Constitution does not provide for a certain event so that paralysis occurs and disaster strikes.[23] In a Type Three crisis,people disagree so strongly about what the constitution means that they turn to civil war,secession,or insurrection.[24] Balkin and Levinson believe real constitutional crises are rare in American history,although political crises are frequent. A test of a successful constitution is whether it can successfully manage and resolve political crises within its boundaries.[25]
Constitutional cycles
Balkin argues that America's constitutional system evolves through the interplay between three cycles:the rise and fall of dominant political parties,the waxing and waning of political polarization,and alternating episodes of constitutional rot and constitutional renewal.[26] Balkin explains that America's politics seems especially fraught because America is nearing the end of the Republican Party's long political dominance,is at the height of a long cycle of political polarization,and is suffering from an advanced case of constitutional rot.[27] Balkin argues that America is in a Second Gilded Age,and predicts that it is slowly moving toward a second Progressive Era.[28]
Freedom of speech and democratic culture
Balkin's work on the First Amendment argues that the purpose of the free speech principle is to promote what he calls a democratic culture.[29][30] The idea of democratic culture is broader than a concern with democratic deliberation or democratic self-government,and emphasizes individual freedom,cultural participation and mutual influence. A democratic culture is one in which ordinary individuals can participate in the forms of culture that in turn help shape and constitute them as persons. Balkin argues that free speech on the Internet is characterized by two features:"routing around" media gatekeepers,and "glomming on"—non-exclusive appropriation of cultural content that is melded with other sources to create new forms of culture. These distinctive features of Internet speech,he argues,are actually features of speech in general and thus lead to a focus on democratic participation in culture.
Balkin argues that protection of freedom of speech in the digital age will increasingly rely less on judge-made doctrines of the First Amendment and more on legislation,administrative regulation,and technological design.[31] He argues that we have moved beyond the traditional dyadic model of free expression in which nation states regulated the speech of their citizens. Instead,digital speech involves a pluralist model. In the pluralist model,territorial governments continue to regulate speech directly. But they also attempt to coerce or co-opt owners of digital infrastructure to regulate the speech of others. This is "new school" speech regulation.[32] Digital infrastructure owners,and especially social media companies,now act as private governors of speech communities,creating and enforcing various rules and norms of the communities they govern. Finally,end users,civil society organizations,hackers,and other private actors repeatedly put pressure on digital infrastructure companies to regulate speech in certain ways and not to regulate it in others. This triangular tug of war—rather than the traditional dyadic model of states regulating the speech of private parties—characterizes the practical ability to speak in the algorithmic society.[33]
The National Surveillance State
In a 2006 essay with Levinson,[34] and a 2008 article,[35] Balkin discusses the emergence of a "National Surveillance State" that uses the collection,collation and analysis of information to govern. The National Surveillance State is a natural byproduct of technological development and demands for government services. Balkin argues that "[t]he question is not whether we will have a surveillance state in the years to come,but what sort of surveillance state we will have."[36]
Balkin distinguishes between two models:an authoritarian information state and a democratic information state. Authoritarian information states are information misers and information gluttons:they collect as much information as possible and they resist sharing it or making their own operations public. Democratic information states are information gourmets and information philanthropists:they collect only what they need,they produce information for and share information with their citizens and they make their own operations democratically accountable. Democratic information states also destroy government collected information when it is no longer necessary. In practice,much privacy protection came from the fact that people forgot what had happened. But in the digital age,nothing is ever forgotten,so appropriate discarding of the results of government surveillance must be mandated.[37][38]
As the surveillance state grows,Balkin argues,new civil liberties protections are necessary,just as they were necessary with the growth of the administrative state after the New Deal and the National Security State after World War II. The executive branch must be redesigned with internal checks and balances to police itself,to report on its activities,and to prevent abuse. Finally,technology must be used to record what officials do and look for signs of government misconduct:"The best way to control the watchers is to watch them as well."[39]
Information fiduciaries,robotics,and artificial intelligence
Balkin coined the term "information fiduciary" to describe the legal and ethical obligations of digital businesses and social media companies.[40][41] He argues that people must trust and depend on certain digital businesses and social media companies,and are especially vulnerable to them. Therefore,the digital age has produced a new kind of fiduciary obligation analogous to those the law imposes on money managers and on professionals like doctors,lawyers,and accountants.
Balkin argues that digital information fiduciaries must act in a trustworthy fashion toward their end-users. They must respect end-user privacy and may not manipulate end-users. Those who develop and employ robots,artificial intelligence agents,and algorithms may also be information fiduciaries toward their customers and end-users. In addition,firms may not engage in "algorithmic nuisance":using people's digital identities to discriminate and manipulate them and shifting the costs of algorithmic decisionmaking onto the general public.[42]
Balkin argues that the obligations of information fiduciaries and the duty not to be algorithmic nuisances are part of new laws of robotics. Unlike Asimov's famous three laws of robotics,these laws are directed not to robots but to the people and organizations who design,own,and operate them. Balkin argues that robotic and artificial intelligence technologies mediate relationships of power between different groups of people;therefore law must focus on regulating the people,firms,and social groups who use robots and artificial intelligence as much as on the technologies themselves.[43]
Citizens for a Canadian Republic (CCR) is a Canadian advocacy group founded in 2002 that advocates for the replacement of the Canadian monarchy with a head of state who could either be chosen directly through a general election, indirectly by the Parliament of Canada, the Legislative assemblies of Canadian provinces and territories, or some other electoral body.
Originalism is a method of constitutional and statutory interpretation. Originalists assert that legal text should be interpreted based on the original understanding at the time of adoption. Originalists object to the idea of the significant legal evolution being driven by judges in a common law framework and instead favor modifications of laws through the Legislature or through Constitutional amendment.
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John Hart Ely was an American legal scholar. He was a professor of law at Yale Law School from 1968 to 1973, Harvard Law School from 1973 to 1982, Stanford Law School from 1982 to 1996, and at the University of Miami Law School from 1996 until his death. From 1982 until 1987, he was the 9th dean of Stanford Law School.
Akhil Reed Amar is an American legal scholar known for his expertise in constitutional law and criminal procedure. He holds the position of Sterling Professor of Law and Political Science at Yale University, and is an adjunct professor of law at Columbia University. In 2008, a Legal Affairs poll placed Amar among the top 20 contemporary American legal thinkers.
Reva B. Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School. Siegel's writing draws on legal history to explore questions of law and inequality, and to analyze how courts interact with representative government and popular movements in interpreting the Constitution. She is currently writing on the role of social movement conflict in guiding constitutional change, addressing this question in recent articles on reproductive rights, originalism and the Second Amendment, the "de facto ERA," and the enforcement of Brown. Her publications include Processes of Constitutional Decisionmaking ; The Constitution in 2020 ; and Directions in Sexual Harassment Law. Professor Siegel received her B.A., M.Phil, and J.D. from Yale University, clerked for Judge Spottswood William Robinson III on the D.C. Circuit, and began teaching at the University of California at Berkeley. She is a member of the American Academy of Arts and Sciences, and is active in the American Society for Legal History, the Association of American Law Schools, the American Constitution Society, in the national organization and as faculty advisor of Yale's chapter. She was elected to the American Philosophical Society in 2018.
The Living Constitution, or judicial pragmatism, is the viewpoint that the U.S. constitution holds a dynamic meaning even if the document is not formally amended. The Constitution is said to develop alongside society's needs and provide a more malleable tool for governments. The idea is associated with views that contemporary society should be considered in the constitutional interpretation of phrases. The Constitution is referred to as the living law of the land as it is transformed according to necessities of the time and the situation. Some supporters of the living method of interpretation, such as professors Michael Kammen and Bruce Ackerman, refer to themselves as organists.
Eric Andrew Posner is an American lawyer and legal scholar. As a law professor at the University of Chicago Law School, Posner has taught international law, contract law, and bankruptcy, among other areas. He is the son of retired Seventh Circuit Judge Richard Posner.
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Balkinization is a legal blog focused on constitutional, First Amendment, and other civil liberties issues. The weblog was created on January 13, 2003 by Jack Balkin, a professor of U.S. constitutional law at Yale Law School.
The New York University Law Review is a bimonthly general law review covering legal scholarship in all areas, including legal theory and policy, environmental law, legal history, and international law. The journal was established in 1924 as a collaborative effort between law students and members of the local bar. Its first editor-in-chief was Paul D. Kaufman. Between 1924 and 1950, it was at various times known as the Annual Review of the Law School of New York University and the New York University Law Quarterly Review before obtaining its current name in 1950.
The Information Society Project (ISP) at Yale Law School is an intellectual center studying the implications of the Internet and new information technologies for law and society. The ISP was founded in 1997 by Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School. Jack Balkin is the director of the ISP.
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Danielle Keats Citron is a Jefferson Scholars Foundation Schenck Distinguished Professor in Law at the University of Virginia School of Law, where she teaches information privacy, free expression, and civil rights law. Citron is the author of "The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age" and "Hate Crimes in Cyberspace" (2014). She also serves as the Vice President of the Cyber Civil Rights Initiative, an organization which provides assistance and legislative support to victims of online abuse. Prior to joining UVA Law, Citron was an Austin B. Fletcher Distinguished Professor of Law at Boston University Law School, and was also the Morton & Sophia Macht Professor of Law at the University of Maryland School of Law.
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↑ Cultural Software, p. 144. See Seung's Intuition and Construction: The Foundation of Normative Theory, pp. 194–99 and Plato Rediscovered: Human Value and Social Order, pp. xi–xii.
↑ Balkin, Verdi's High C, 91 Tex. L. Rev. 1687 (2013). Available at https://ssrn.com/abstract=2240496; Balkin and Levinson, Interpreting Law and Music: Performance Notes on "The Banjo Serenader" and "The Lying Crowd of Jews," 20 Cardozo L. Rev. 1513 (1999); Balkin and Levinson, Law, Music, and Other Performing Arts, 139 U. Pa. L. Rev. 1597 (1991)
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