Welcome

Jack M. Balkin is Knight Professor of Constitutional Law and the First Amendment at Yale Law School. He is the founder and director of Yale’s Information Society Project, an interdisciplinary center that studies law and new information technologies. He also directs the Abrams Institute for Freedom of Expression and the Knight Law and Media Program at Yale.

Books

Democracy and Dysfunction In Democracy and Dysfunction (University of Chicago Press 2019) Sanford Levinson and I exchange a series of letters about the causes of America’s current political dysfunction and how to fix our political system. The letters begin in 2015 and go through the beginning of 2018. Along the way we discuss the rise of Donald Trump, the 2016 election, and how recent events exemplify deeper problems in the design and functioning of the American constitutional system. Levinson argues that our Constitution is seriously defective and calls for a set of new amendments or a new constitutional convention, while I argue that we are suffering from constitutional rot and that there are less radical solutions.	Processes of Constitutional Decisionmaking Processes of Constitutional Decisionmaking (Aspen Publishers, 7th ed. 2018), co-edited with Paul Brest, Sanford Levinson, Akhil Amar and Reva Siegel, is now in its seventh edition. Long famous for its unique historical approach, the book makes a significant statement about the constitutional canon. You can learn more about the book here.
Living Originalism Living Originalism (Harvard University Press, 2011), argues that the best versions of originalism and living constitutionalism are not in conflict but are compatible. It shows why modern conceptions of civil rights and civil liberties, and the modern state’s protection of national security, health, safety, and the environment, are fully consistent with the Constitution’s original meaning. And it explains how both liberals and conservatives, working through political parties and social movements, play important roles in the ongoing project of constitutional construction.	Constitutional Redemption: Political Faith in an Unjust World Constitutional Redemption: Political Faith in an Unjust World (Harvard University Press, 2011), argues that what makes the Constitution legitimate is Americans’ enduring faith that its promises can be redeemed, and that the constitutional system can be brought closer to a “more perfect union.”
The Constitution in 2020 The Constitution in 2020 (Oxford University Press 2009) edited with Reva Siegel, features essays by some of America’s finest constitutional thinkers about how we should interpret the U.S. Constitution and address the key constitutional challenges of the 21st century.	The Laws of Change: I Ching and the Philosophy of Life The Laws of Change: I Ching and the Philosophy of Life (Sybil Creek Press, 2009) is a new translation of and commentary on the I Ching or Book of Changes, one of the oldest books in human history and a treasure of world literature. This new edition presents the Book of Changes as a book of wisdom, a work of practical philosophy that teaches how to cultivate one’s character, achieve emotional balance and maintain one’s values and one’s integrity in the face of adversity and ever-changing circumstances. You can learn more about the book here.
Cybercrime: Digital Cops in a Networked Environment Cybercrime: Digital Cops in a Networked Environment (New York University Press 2007) edited with James Grimmelman, Eddan Katz, Nimrod Kozlovski, Shlomit Wagman, and Tal Zarsky, features essays by leading experts in law, criminal justice, and security studies about crime prevention and security protection in the electronic age. Ranging from new government requirements that facilitate spying to new methods of digital proof, the book explains how criminal law-and even crime itself-have been transformed in our networked world.	The State of Play: Law, Games and Virtual Worlds The State of Play: Law, Games and Virtual Worlds (New York University Press 2006) edited with Beth Noveck, contains essays about the legal issues raised by virtual worlds and massively-multiplayer online games. The authors include some of the foremost legal scholars, policy analysts and game designers working on the challenges of new virtual environments, where people work, play, and spend increasing proportions of their lives.
What Roe v. Wade Should Have Said: America's Top Legal Experts Rewrite America's Most Controversial Decision What Roe v. Wade Should Have Said: America’s Top Legal Experts Rewrite America’s Most Controversial Decision (New York University Press 2005) features eleven rewritten versions of the Roe opinion, both for and against the right to abortion, offered by some of the leading constitutional scholars in the United States. The book also includes a critical introduction to the Roe opinion and its legacy.	What Brown v. Board of Education Should Have Said: America's Top Legal Experts Rewrite America's Landmark Civil Rights Decision What Brown v. Board of Education Should Have Said: America’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision (New York University Press 2001) features nine versions of the Brown opinion by some of the leading constitutional and civil rights scholars in the United States, as well as a critical introduction to the Brown opinion, a history of the Brown litigation, and a discussion of the continuing debates over the decision’s legacy. You can learn more about the book here. Also visit the book’s companion website, BrownvBoard.com– An Interactive Civil Rights Chronology, which describes important historical events in the struggle for civil rights.
Cultural Software: A Theory of Ideology Cultural Software: A Theory of Ideology (Yale University Press, 1998) is a new theory of culture, cultural evolution and memetics that explains how ideologies and beliefs grow, spread, and develop in human minds. It is the first book to apply the study of memes and cultural evolution to the theory of ideology. You can learn more about the book here.	Legal Canons Legal Canons, (New York University Press 2000) co-edited with Sanford Levinson, explores the idea of canon in law and legal scholarship. It features fifteen essays by leading legal scholars focusing on what the canon and canonicity mean for different areas and aspects of law. You can learn more about the book here.

Selected Essays

The Recent Unpleasantness: Understanding the Cycles of Constitutional Time, 94 Indiana L. J. 253 (2019), SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3222311.
The First Amendment in the Second Gilded Age, 66 Buffalo L. Rev. 979 (2018), SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3253939.
Fixing Social Media’s Grand Bargain, Hoover Working Group on National Security, Technology, and Law, Aegis Series Paper No. 1814 (October 16, 2018), SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3266942.
Free Speech is a Triangle, 118 Colum. L. Rev. 2011 (2018), SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3186205.
Arguing About the Constitution: The Topics in Constitutional Interpretation, 33 Const. Comm. 145 (2018), SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3133131.
Free Speech in the Algorithmic Society: Big Data, Private Governance, and New School Speech Regulation, 51 U.C. Davis L. Rev. 1149 (2018), SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3038939.
Constitutional Rot, in Can It Happen Here?: Authoritarianism in America, Cass R. Sunstein, ed. (Dey Street Books 2018), pp. 19-35, SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2992961.
The Three Laws of Robotics in the Age of Big Data, 78 Ohio State L.J. 1217 (2018), SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2890965.
Constitutional Crisis and Constitutional Rot, 77 Maryland L. Rev. 147 (2017), SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2993320.
Democracy and Dysfunction: An Exchange, 50 Indiana L. Rev. 281 (2016), SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2820202 (with Sanford Levinson).
Republicanism and the Constitution of Opportunity, 94 Tex. L. Rev. 1427 (2016), pdf, SSRN, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2783064.
Which Republican Constitution?, 32 Const. Comm. 31 (2016), SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2761513.
Cultural Democracy and the First Amendment, 110 Nw. L. Rev. 1053 (2016), SSRN, http://papers.ssrn.com/abstract=2676027.
Information Fiduciaries and the First Amendment, 49 U.C. Davis L. Rev. 1183 (2016), SSRN, http://papers.ssrn.com/abstract=2675270.
To Alter or Abolish, 89 S. Cal. L. Rev. 399 (2016)(with Sanford Levinson), SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2761525
History, Rights, and the Moral Reading, 96 B.U. L. Rev. 1425 (2016), SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2762382
The Construction of Original Public Meaning, 31 Const. Comm. 71 (2016), SSRN, http://papers.ssrn.com/abstract=2653991.
The Digital Transformation of Education, in EDUCATION AND SOCIAL MEDIA: TOWARD A DIGITAL FUTURE, Greenhow, C., Sonnevend, J. & Agur, C. eds., (MIT Press forthcoming 2016)(with Julia Sonnevend), SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2759022.
The Path of Robotics Law, 6 Calif. L. Rev. Circuit 45 (2015), SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2586570.
The Framework Model and Constitutional Interpretation, in in Philosophical Foundations of Constitutional Law, David Dyzenhaus and Malcom Thorburn, eds., (Oxford University Press, 2016), SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2607105.
Constitutional Change and Interpretation in the United States: The Official and the Unofficial, Jus Politicum, No. 14 (June 2015), SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2594925.
The Last Days of Disco: Why The American Political System is Dysfunctional, 94 B.U. L. Rev. 1159 (2014), pdf, SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2403508.
Why Are Americans Originalist?, in LAW, SOCIETY AND COMMUNITY: SOCIO-LEGAL ESSAYS IN HONOUR OF ROGER COTTERRELL, David Schiff and Richard Nobles, eds. (Ashgate Publishing 2014), SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2379587.
Old School/New School Speech Regulation, 127 Harv. L. Rev. 2296 (2014), pdf, SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2377526.
The New Originalism and the Uses of History, 82 Fordham L. Rev. 641 (2013), pdf, SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2303980.
Verdi’s High C, 91 Tex. L. Rev. 1687 (2013), pdf, SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2240496.
The Court Affirms the Social Contract, in The Health Care Case: The Supreme Court’s Decision and Its Implications (Nathaniel Persily, Gillian E. Metzger, and Trevor W. Morrison, eds., Oxford University Press 2013), SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2234739.
Must We be Faithful to Original Meaning?, 7 Jerusalem Review of Legal Studies 57 (2013), pdf, SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2258678.
The American Constitution as “Our Law”, 25 Yale J. L. & Human. 113 (2013), SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2247584.
Sanford Levinson’s Second Thoughts About Constitutional Faith, 48 Tulsa L. Rev. 169 (2012), SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2198740.
The Dangerous Thirteenth Amendment, 112 Colum. L. Rev. 1459 (2012)(with Sanford Levinson), SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2115222.
The First Amendment is an Information Policy, 41 Hofstra L. Rev. 1 (2012), SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2213465.
Room for Maneuver: Julie Cohen’s Theory of Freedom in the Information State, 6 Jerusalem Review of Legal Studies 79 (2012), pdf, SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2134553.
The Roots of the Living Constitution, 92 B.U. L. Rev. 1129 (2012), pdf, SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2049498.
The Distribution of Political Faith, 71 Univ. of Md. L. Rev. 1144 (2012), pdf, SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2083246.
Nine Perspectives on Living Orignalism, 2012 Univ. of Ill. L. Rev. 815 (2012), pdf, SSRN, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2015088.
For more essays see the bibliography