Jack Balkin
Branford
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Con Law Prof and Director of Yale's Information Society Project and Abrams Institute for Free Expression
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Articles by Jack Balkin
Constitution Day Talk at Stanford: Technology and Constitutional Rot
On September 17th, I gave a talk at Stanford Law School based on my article, Technology and Constitutional Rot. My thanks to Michael McConnell, Jud Campbell, and Duncan Hosie at Stanford’s Constitutional Law Center for the opportunity. Here is the video: VIDEO
Balkinization Symposium on the Global Political Economy of Artificial Intelligence
On March 27th-28th, the Yale Information Society Project held a conference on The Global Political Economy of Artificial Intelligence. The co-organizers were Mikey McGovern and Caleb Yong. This week at Balkinization we are publishing some of the essays from that conference. The participants are Ignacio Cofone (Oxford), Claudia E. Haupt (Northeastern), Ava Liu (Harvard), and Amy L. Stein (Florida), with a postscript by Mikey McGovern and Caleb Yong (Yale ISP).
Technology and Constitutional Rot
I have posted a draft of my latest article, Technology and Constitutional Rot, on SSRN. Here is the abstract: Technological change affects the Constitution not only by creating new problems of constitutional interpretation, but also by changing the distribution of economic and political power. New technologies alter what governments and private actors can know, control, predict, and accomplish.
Balkinization Symposium on Ruti Teitel, Presidential Visions of Transitional Justice-- Collected Posts
Balkinization Symposium on Ruti Teitel, Presidential Visions of Transitional Justice– Collected Posts
Balkinization Symposium on Maxwell Stearns, Parliamentary America
This week at Balkinization we are hosting a symposium on Maxwell Stearns’s new book, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (Johns Hopkins University Press, 2024). We have assembled a terrific group of commentators, including Hank Chambers (Richmond), Erin Delaney (Northwestern), Erwin Chemerinsky (Berkeley), Mark Graber (Maryland), Steve Griffin (Tulane), Anna Law (CUNY-Brooklyn), Sandy Levinson (Texas), and Lisa Miller (Rutgers).
Balkinization Symposium on John Witt, The Radical Fund -- Collected Posts
Here are the collected posts for our Balkinization symposium on John Witt’s new book, The Radical Fund: How a Band of Visionaries and a Million Dollars Upended America (Simon and Schuster, 2025). 1. Jack Balkin, Introduction to the Symposium 2. Michelle Adams, The Radical Fund Behind Brown 3. Risa Goluboff, Putting labor, civil rights, and civil liberties at the center of the American story 4. Willy Forbath, The Radical Fund – An Historian’s Brief For Social Democracy 5. David E.
Balkinization Symposium on Serena Mayeri, Marital Privilege
This week at Balkinization we are hosting a symposium on Serena Mayeri’s new book, Marital Privilege: Marriage, Inequality, and the Transformation of American Law (Yale University Press, 2025). We have assembled a terrific group of commentators, including Bill Eskridge (Yale), Clare Huntington (Columbia), Kristin Collins (Michigan), Solangel Maldonado (Seton Hall), Kimberly Mutcherson (Rutgers), Doug NeJaime (Yale), and Julie Suk (Fordham).
Casebooks, Canons, and Constitutional Memory
Sandy Levinson and I have uploaded a draft of our latest essay, Casebooks, Canons, and Constitutional Memory, to SSRN. Here is the abstract: Why edit a constitutional law casebook? One might want to shape how professors teach the subject and how students learn it. But the influence of casebook editors is limited. Most students at most law schools will never practice constitutional law, and those that do probably deal with subjects not in the standard introductory course.
Balkinization Symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power-- Collected Posts
Here are the collected posts for our Balkinization symposium on Richard Primus, The Oldest Constitutional Question: Enumeration and Federal Power (Harvard University Press, 2025). 1. Jack Balkin, Introduction to the Symposium 2. Christina D. Ponsa-Kraus, Enumeration and My Discontent 3. Sandy Levinson, Will Richard Primus Get the Readership He Deserves (and the Country Needs)? 4. Jonathan Gienapp, The Many Meanings of Enumeration 5. William Ewald, Does Anybody Else Suffer from Enumerationism? 6.
How the Modalities Work: Constitutional Interpretation as Problem Solving
I have posted a draft of my latest essay, How the Modalities Work: Constitutional Interpretation as Problem Solving, on SSRN. Here is the abstract: The modalities of constitutional argument are shared cultural tools for thinking about the Constitution, analyzing legal problems, and formulating arguments to resolve them. Constitutional interpretation is a kind of problem-solving, and the modalities are our legal culture’s tool kit for analyzing and solving constitutional problems.
Balkinization Symposium on Free Speech in Crisis-- Collected Posts
Here are the collected posts for our Balkinization symposium on Free Speech in Crisis and the Limits of the First Amendment. 1. Jack Balkin, Introduction to the Symposium 2. Mary Anne Franks, From Watchdogs to Lapdogs: Selling Out the Fourth Estate for Scraps at Trump’s Table 3. Eugene Volokh, The Crisis of the Media Environment 4. Robert C. Post , Political Polarization, the Internet, and Free Speech 5. Richard H. Pildes, Election as a Distinct Sphere Under the First Amendment 6. Bradley A.
Balkinization Symposium on Free Speech in Crisis
On March 28th-29th, the Yale Information Society Project held a conference on Free Speech in Crisis and the Limits of the First Amendment. The co-organizers were Genevieve Lakier, Robert Post, Keith Whittington, and myself. This week at Balkinization we are publishing some of the essays from that conference.
Here are the collected posts from our Balkinization symposium in honor of Ken Kersch. 1. Jack Balkin, Introduction to the Symposium 2. Rogers M. Smith, The Better Angels of Our Nature: An Introduction to the Scholarship of Ken I. Kersch 3. Mark A. Graber, Confessions of Reviewer #2 4. Sanford Levinson, Ken Kersch and the Possibility of Inclusive and Diverse Conversation 5. George Thomas, Ken Kersch and the Politics of Constitutional Erasure 6.
Balkinization Symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs-- Collected Posts
Here are the collected posts for our Balkinization symposium on Curtis A. Bradley, Historical Gloss and Foreign Affairs: Constitutional Authority in Practice (Harvard University Press, 2024). 1. Jack Balkin, Introduction to the Symposium 2. Elena Chachko, History and the Separation of Powers 3. Michael D. Ramsey, Historical Gloss and Originalism 4. Jean Galbraith, What Gloss Glosses Over 5. Jide Nzelibe, Justifying Constitutional Change in Foreign Affairs Outside of Article V 6.
Moody v. NetChoice - The Supreme Court Meets the Free Speech Triangle
I’ve posted my latest essay, Moody v. NetChoice – The Supreme Court Meets the Free Speech Triangle, on SSRN. Here is the abstract. Moody v. NetChoice is the Supreme Court’s first attempt at applying the First Amendment to social media content regulation. Private infrastructure owners can act both as speakers and as the governors of other people’s speech.
The Problem of “Popular” Sovereignty - Liberties
“In America, the people govern, the people rule, and the people are sovereign.” So said President Donald Trump in his inaugural speech to the United Nations in September 2017. “In foreign affairs, we are renewing this founding principle of sovereignty. Our government’s first duty is to its people, to our citizens… As President of the United States, I will always put America first.” Trump used the terms “sovereign” and “sovereignty” some twenty-one times in his U.N. address.
Judicial Supremacy Through Thick and Thin – Aaron N. Coleman
Jack M. Balkin’s Memory and Authority deserves praise for advocating that a natural relationship exists between history and constitutional interpretation. He is right to point out that both should rely upon one another more than they do; it is a shame that each group looks sideways at the other. Much of this suspicion emerged with the rise of professional history a century ago, with its disciplinary focus on context, causality, and change over time.
Traditionalizing Everything – Mark L. Movsesian
History and tradition are having a moment in American constitutional law. In recent landmark cases, the Supreme Court has looked to history and tradition as guides to construing the meaning of the Constitution. For example, in Kennedy v.
Unoriginalist History – Law & Liberty Editors
A Law & Liberty symposium on Jack M. Balkin's Memory and Authority. The Supreme Court’s recent turn to history and tradition as guides for understanding the public meaning of text has reignited longstanding debates about the uses of history in law. In Memory and Authority, the longtime advocate of “living originalism,” Jack Balkin, argues that the Court’s use of history is self-serving, and amounts to the “mirror image” of living constitutionalism.
Opinion | Why the Ranks of Populism Are Filled With ‘Nasty’ Characters
Opinion|Why the Ranks of Populism Are Filled With ‘Nasty’ Characters https://www.nytimes.com/2023/01/18/opinion/republicans-populism-political-psychology.html Guest Essay Jan. 18, 2023, 5:00 a.m. ET Early in the morning on Jan. 7, Speaker Kevin McCarthy receives a congratulatory handshake from Representative George P. Santos.Credit...Mark Peterson for The New York Times Send any friend a story As a subscriber, you have 10 gift articles to give each month. Anyone can read what you share. By Thomas B.
The Nature of the Instrument Tells You How to Read It – - Jack M. Balkin
Here are three wise things in Mike Greve’s lead forum essay. And I hope that saying that I agree with them won’t cause Mike to change his mind! First, much of originalist constitutional argument these days obsesses about how to understand the meaning of the text. But arguments from text need to be backed up with arguments from structure and purpose.
Oversight Board doesn’t let Facebook off the hook
May 7, 2021 at 8:01 am By and Special to The Washington Post On Wednesday morning, the Facebook Oversight Board, the global deliberative body set up by Facebook to adjudicate content decisions, finally issued a decision on the indefinite suspension of former President Donald Trump from the platform. Facebook has spent two years, countless hours and $130 million setting up the board, in part to outsource responsibility for making controversial and unpopular decisions.
Perspective | Facebook’s Oversight Board was supposed to let Facebook off the hook. It didn’t.
On Wednesday morning, the Facebook Oversight Board, the global deliberative body set up by Facebook to adjudicate content decisions, finally issued a decision on the indefinite suspension of former president Donald Trump from the platform. Facebook has spent two years, countless hours and $130 million setting up the board, in part to outsource responsibility for making controversial and unpopular decisions. So when the biggest hot potato of recent years — the insurrection of Jan.
After the Capitol Riot, Who Will Govern Speech Online?
The January 6 attack on the Capitol has transformed politics in the United States in ways that journalists, lawyers and politicians are still struggling to understand. It was at once the chaotic culmination of a right-wing movement before and during the Trump administration and a stunning symbol of a possible future. Like so many other political events in the past decade, it again revealed how social media has made once unthinkable political events possible.
"The Constitution of Status" by Jack M. Balkin
Abstract Democracies are societies. Behind the formal features of democratic selfgovernance- whether regular elections or majority rule-lie social organization and social structure. Like other societies, democracies have varying degrees of social stratification and social hierarchy, group competition and group subordination. But democracies are special in this respect: Their political ideals seem partly in tension with their social structures.
Jack Balkin's Dance to the Music of Time – - Michael S. Greve
The Cycles of Constitutional Time is not remotely as funny or engaging as its author, Jack Balkin, is in the flesh. It is, however, just as erudite, imaginative, thought-provoking, and generous. And just as over the top and wrong at a basic level.
Perspective | The Reagan era never really ended. A Trump loss could change that.
American politics seems especially fraught today because we are nearing the end of the Republican Party’s long political dominance, and the old order is fighting change with every last ounce of its strength. Even so, demographic shifts and changes in public opinion seem to herald a new regime with a new dominant coalition and a new dominant party, most likely the Democrats. That is not the only problem.
Justice Beyond Dispute
The full text of this Book Review may be found by clicking on the PDF link to the left. I. Introduction Jiranuch Triratana was watching her brother scroll through his Facebook feed on April 24, 2017, when they came upon a startling live-stream broadcast. It was from Jiranuch’s boyfriend, Wuttisan Wongtalay.1× Agence France-Presse, Thai Mother Saw Daughter Being Killed on Facebook Live, The Guardian (Apr.
The Fiduciary Model of Privacy
Consumer Law Responding to David E. Pozen & Lina M. Khan, A Skeptical View of Information Fiduciaries Response by Jack M. Balkin The full text of this Response may be found by clicking on the PDF link to the left. In the digital age people are increasingly dependent on and vulnerable to digital businesses that collect data from them and use data about them. These companies use data to predict and control what end users do, and to sell advertisers access to those end users.
How to Regulate (and Not Regulate) Social Media
Introduction To understand how to regulate social media, you have to understand why you want to regulate it. I will say something about specific regulatory proposals in the last part of this essay. But I want to spend most of my time discussing the why as much as the how. Here is the central idea: Social media companies are key institutions in the 21st century digital public sphere.
Des Moines Register, CNN Decide to Not Release Final Iowa Poll
Des Moines Register, CNN Decide to Not Release Final Iowa Poll | RealClearPolitics
Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time
Article - by Jack M.
A Skeptical View of Information Fiduciaries
The full text of this Article may be found by clicking on the PDF link to the left. The concept of “information fiduciaries” has surged to the forefront of debates on online-platform regulation. Developed by Professor Jack Balkin, the concept is meant to rebalance the relationship between ordinary individuals and the digital companies that accumulate, analyze, and sell their personal data for profit.
How to Regulate (and Not Regulate) Social Media
By Jack M. Balkin(Yale) This essay is the text of a keynote address given at the Association for Computing Machinery conference on Computer Science and Law on October 28, 2019. To understand how to regulate social media you must first understand why you want to regulate it. We should regulate social media companies because they are key institutions in the twenty-first century digital public sphere.
The Originalist Myth of the Unitary Executive
38 Pages Posted: 21 Feb 2016 Date Written: February 19, 2016 Abstract Both Executive Power Vesting Clauses and clauses equivalent to Article II’s Faithful Execution Clause were prevalent in early state constitutions that nonetheless fractured gubernatorial control over state bureaucracies. Originalist defenders of a unitary executive reading of the federal Constitution nonetheless dismiss the interpretive significance of the pre-1787 state constitutions.
The Return of Lochner
77 Pages Posted: 14 Apr 2015 Date Written: 2015 Abstract For a very long time, it has been an article of faith among liberals and conservatives alike that Lochner v. New York was obviously and irredeemably wrong. Lochner is one of only a few cases that constitute our “anticanon,” universally reviled by the legal community as the “worst of the worst.” Our first claim in this Article is that the orthodoxy in modern conservative legal thought about Lochner is on the verge of changing.
"Populism and Progressivism as Constitutional Categories" by Jack M. Balkin
Comments Populism and Progressivism as Constitutional Categories, 104 Yale L. Rev. 1935 (1995) Abstract It's been a tough day. I've spent most of it worrying about the Free Speech Principle. Or at least, the Free Speech Principle described in Cass Sunstein's Democracy and the Problem of Free Speech, a book by an author I greatly admire. According to Sunstein, the primary purpose behind free speech is promoting democratic deliberation about issues of public policy.
What Roe v. Wade Should Have Said
Description Praise A unique introduction to the constitutional arguments for and against the right to abortion In January 1973, the Supreme Court’s opinion in Roe v. Wade struck down most of the country's abortion laws and held for the first time that the Constitution guarantees women the right to safe and legal abortions. Nearly five decades later, in 2022, the Court’s 5-4 decision in Dobbs v.
Fixing Social Media’s Grand Bargain
To regulate social media in the twenty-first century, we should focus on its political economy: the nature of digital capitalism and how we pay for the digital public sphere we have. Our digital public sphere is premised on a grand bargain: free communications services in exchange for pervasive data collection and analysis. This allows companies to sell access to end users to the companies’ advertisers and other businesses.
Fixing Social Media’s Grand Bargain
To regulate social media in the twenty-first century, we should focus on its political economy: the nature of digital capitalism and how we pay for the digital public sphere we have. Our digital public sphere is premised on a grand bargain: free communications services in exchange for pervasive data collection and analysis. This allows companies to sell access to end users to the companies’ advertisers and other businesses.
Constitutional Rot
Constitutional rot refers to the decay of features of a constitutional system that maintain it as a healthy republic. Constitutional rot has been going on for some time in the United States, and it has generated the country's current state of dysfunctional national politics. Constitutional rot has made American politics increasingly less democratic, less republican, and more oligarchical.
Our Latest Global Warming Scare
The United Nation’s Intergovernmental Panel on Climate Change issued a special report last week predicting apocalyptic environmental consequences if the nations of the world are unable to reduce the amount of warming to 1.5° C above pre-industrial levels in the next 12 years. The IPCC report insists that meeting this target requires “rapid and far-reaching” changes—all unspecified—in a wide range of areas including land, energy, industry, buildings, transportation, and cities.
Profiling Originalism
Originalism is a subject of both legal and political discourse, invoked not just in law review scholarship but also in popular media and public discussion. This Essay presents the first empirical study of public attitudes about originalism. The study analyzes original and existing survey data in order to better understand the demographic characteristics, legal views, political orientation, and cultural profile of those who self-identify as originalists.
Ambiguity in Privacy Policies and the Impact of Regulation
Website privacy policies often contain ambiguous language that undermines the purpose and value of privacy notices for site users. This paper compares the impact of different regulatory models on the ambiguity of privacy policies in multiple online sectors. First, the paper develops a theory of vague and ambiguous terms. Next, the paper develops a scoring method to compare the relative vagueness of different privacy policies.
Three Questions: Prof. Jack Balkin on Facebook and the Risks of ‘Data Capitalism’
Gary Waters Jack Balkin May 08, 2018 What does the Facebook–Cambridge Analytica scandal say about the risks of trusting Facebook and other tech companies with our data? We talked with Jack Balkin, Knight Professor of Constitutional Law and the First Amendment at Yale Law School and founder and director of the Information Society Project, whose proposal for making online companies “information fiduciaries” has received new attention in the wake of the scandal.
Plausible Cause: Explanatory Standards in the Age of Powerful Machines
The Fourth Amendment’s probable cause requirement is not about numbers or statistics. It is about requiring the police to account for their decisions. For a theory of wrongdoing to satisfy probable cause — and warrant a search or seizure — it must be plausible. The police must be able to explain why the observed facts invite an inference of wrongdoing, and judges must have an opportunity to scrutinize that explanation.
Insights Animation: Why Integrated Cities Produce More Startups
When you’re launching a startup, being in the right city—a place where you can find investors, scientists, and other entrepreneurs—can make a big difference. Research by Yale SOM’s Olav Sorenson and Sampsa Samila of IESE Business School identified another important factor in entrepreneurial success: being in a racially integrated city. Sorenson and Samila found that in cities that are more integrated, venture capital investments are more effective in producing innovation and economic growth.
Section 230 as First Amendment Rule
Section 230 of the Communications Decency Act of 19961× 47 U.S.C. § 230 (2012). has been lauded as âthe most important law protecting internet speechâ and called âperhaps the most influential law to protect the kind of innovation that has allowed the Internet to thrive.â2× CDA 230: The Most Important Law Protecting Internet Speech, Electronic Frontier Found., https://www.eff.org/issues/cda230 [https://perma.cc/JN9Y-TVNT]; accord Jack M.
The Constitutionality of DAPA Part II: Faithfully Executing the Law
Article II imposes a duty on the President unlike any other in the Constitution: he “shall take Care that the Laws be faithfully executed.” More precisely, it imposes four distinct but interconnected duties. First, the imperative “shall” commands the president to execute the laws. Second, in doing so the President must act with “care.” Third, the object of that duty is “the Laws” enacted by Congress.
Presidential Maladministration
90 Pages Posted: 22 Dec 2016 Last revised: 27 Mar 2018 Abstract In Presidential Administration, then-Professor Elena Kagan re-envisioned administrative law through the lens of the President’s personal influence on the regulatory state.
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