Mark Tushnet

William Nelson Cromwell Professor of Law

Areeda 223

617-496-4451

Assistant: Benjamin Sears / 617-495-9534

Biography

Professor Tushnet, who graduated from Harvard College and Yale Law School and served as a law clerk to Justice Thurgood Marshall, specializes in constitutional law and theory, including comparative constitutional law. His research includes studies examining (skeptically) the practice of judicial review in the United States and around the world. He also writes in the area of legal and particularly constitutional history, with works on the development of civil rights law in the United States and (currently) a long-term project on the history of the Supreme Court in the 1930s.

Areas of Interest

Mark Tushnet, "Parents Involved" and the Struggle for Historical Memory, 91 Ind. L.J. 493 (2016).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Fourteenth Amendment
,
Civil Rights
,
Race & Ethnicity
,
Law & Social Change
Type: Article
Mark Tushnet, Saying and Doing in Comparative Constitutional Studies -- Ran Hirschl, Comparative Matters : the Renaissance of Comparative Constitutional Law (2014), 64 Am. J. Comp. L. 201 (2016) (book review).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Comparative Law
Type: Article
Mark Tushnet, Peasants with Pitchforks, and Toilers with Twitter, 13 Int'l. J. Const. L. 639 (2015).
Categories:
Constitutional Law
Type: Article
Abstract
This essay argues that invoking the concept of the “constituent power” clarifies some persistent puzzles about the constitutional and legal status of purportedly unconstitutional constitutional amendments. It argues that in some circumstances such amendments should be understood as exercises of the constituent power, effecting revolutionary transformations in a nation’s constitutional identity but—sometimes—through the forms of legality. The essay distinguishes between a purely conceptual version of the constituent power and a more sociological or real-world version, and argues that the former is superior to the latter.
Mark Tushnet, The Presidential Empire, 62 Dissent 101 (2015).
Categories:
Government & Politics
Sub-Categories:
Executive Office
,
National Security Law
Type: Article
Abstract
The author discusses the special kind of presidential power called imperial presidency termed by American historian Arthur Schlesinger that led U.S. into war on the president's terms. He states that the position of the imperial presidency in international affairs will be secure as long as U.S. foreign policymakers preserves the nation's harmonic role in the world and its position can be dangerous as the world is in stake of war. He also mentions Stephen Griffin's authored book "Long Wars and the Constitution" that discusses the creation of the National Security State in the U.S. during the Cold War.
Vicki C. Jackson & Mark Tushnet, Comparative Constitutional Law (3d ed. 2014).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Comparative Law
Type: Book
Mark Tushnet, The New Constitutional Order (Princeton Univ. Press 2009).
Categories:
Government & Politics
,
Disciplinary Perspectives & Law
,
Constitutional Law
Sub-Categories:
Constitutional History
,
Legal Theory & Philosophy
,
Supreme Court of the United States
,
Politics & Political Theory
Type: Book
Abstract
In his 1996 State of the Union Address, President Bill Clinton announced that the "age of big government is over." Some Republicans accused him of cynically appropriating their themes, while many Democrats thought he was betraying the principles of the New Deal and the Great Society. Mark Tushnet argues that Clinton was stating an observed fact: the emergence of a new constitutional order in which the aspiration to achieve justice directly through law has been substantially chastened. Tushnet argues that the constitutional arrangements that prevailed in the United States from the 1930s to the 1990s have ended. We are now in a new constitutional order--one characterized by divided government, ideologically organized parties, and subdued constitutional ambition. Contrary to arguments that describe a threatened return to a pre-New Deal constitutional order, however, this book presents evidence that our current regime's animating principle is not the old belief that government cannot solve any problems but rather that government cannot solve any more problems. Tushnet examines the institutional arrangements that support the new constitutional order as well as Supreme Court decisions that reflect it. He also considers recent developments in constitutional scholarship, focusing on the idea of minimalism as appropriate to a regime with chastened ambitions. Tushnet discusses what we know so far about the impact of globalization on domestic constitutional law, particularly in the areas of international human rights and federalism. He concludes with predictions about the type of regulation we can expect from the new order. This is a major new analysis of the constitutional arrangements in the United States. Though it will not be received without controversy, it offers real explanatory and predictive power and provides important insights to both legal theorists and political scientists.
Laurence H. Tribe, Jeremy Waldron & Mark Tushnet, On Judicial Review - Laurence H. Tribe, Jeremy Waldron, and Mark Tushnet Debate 52 Dissent 81 (2005).
Categories:
Government & Politics
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
Type: Article
Abstract
The Spring 2005 issue of Dissent featured a forceful article by Mark Tushnet, "Democracy versus Judicial Review," which proposed an End Judicial Review Amendment (EJRA) to the U.S. Constitution. It would read, "Except as authorized by Congress, no court of the United States or any individual state shall have the power to review the constitutionality of statutes enacted by Congress or by state legislatures." Two leading legal philosophers argue with Tushnet and he replies.
The Oxford Handbook of Legal Studies (Mark Tushnet & Peter Cane eds., Oxford 2003).
Categories:
Legal Profession
Sub-Categories:
Legal Scholarship
Type: Book
Abstract
This volume in the prestigious series of Oxford Handbooks provides a widely accessible overview of legal scholarship at the start of the 21st century. Through 43 essays by leading legal scholars based in the USA, the UK, Australia, New Zealand, Canada and Germany, it offers original and interpretative accounts of the nature, themes and trends of research and writing about all areas of the law.
Mark Tushnet, Alarmism Versus Moderation in Responding to the Rehnquist Court, 78 Ind. L.J. 47 (2003).
Categories:
Government & Politics
Sub-Categories:
Congress & Legislation
,
Courts
,
Supreme Court of the United States
Type: Article
Abstract
I begin in Part I by offering a description of the Supreme Court's recent decisions as a less substantial repudiation of prior principles than many think them to be, and as leaving Congress with the means to achieve a quite substantial proportion of the policy goals it pursued in the statutes the Court invalidated. Part II explains why Congress is unlikely to do so, in light of our apparent commitment to divided government, and parties that are organized around distinctive ideologies because of divided government. Part III turns to the prospect for continued policy transformation, identifying the conditions under which either the political branches or the Supreme Court could pursue that transformation, and suggesting that those conditions are not highly likely to be realized. Part IV is a brief conclusion, examining the implications of my argument for advocacy and scholarship.
Mark Tushnet, Defending Korematsu?: Reflections on Civil Liberties in Wartime, 2003 Wis. L. Rev. 273 (2003).
Categories:
Government & Politics
,
Constitutional Law
,
Discrimination & Civil Rights
Sub-Categories:
Civil Rights
,
Military, War, & Peace
Type: Article
Abstract
This Essay explores some general characteristics of the U.S. response to questions of civil liberties in wartime. After addressing some general challenges to the proposition that during war, law is silent, the Essay sketches the historical pattern, in which wartime actions become regarded as civil liberties violations after the emergency has passed. It argues that this pattern can be explained by a combination of difficulties of decision-making in conditions of uncertainty, with systematic and predictable errors in judgment. The Essay describes a process of social learning, in which the lessons of the past have produced incrementally smaller civil liberties violations over time. It concludes with an analysis of the constitutional status of emergency powers, analyzing the Habeas Corpus Clause and suggesting that attempting to control exercises of emergency power through constitutional provisions is misguided, and that treating such powers as extra-constitutional would contribute more to the process of social learning.
Mark Tushnet, New Forms of Judicial Review and the Persistence of Rights - and Democracy-Based Worries, 38 Wake Forest L. Rev. 813 (2003).
Categories:
Government & Politics
,
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Judges & Jurisprudence
,
Comparative Law
Type: Article
Defining the Field of Comparatative Constitutional Law (Vicki C. Jackson & Mark Tushnet eds., Praeger 2002).
Categories:
International, Foreign & Comparative Law
,
Constitutional Law
Sub-Categories:
Comparative Law
,
Global Lawyering
Type: Book
Abstract
Jackson, Tushnet, and their contributors, distinguished jurists and legal scholars from around the world, seek to define the field of constitutional law, sometimes expressly but more often by illustrating the way in which each writer thinks about comparative constitutional law. Viewed as a whole, the collection points to common constitutional themes even though how nations responded to these issues differed substantially based on different histories, traditions, and experiences. Three common themes emerge from the essays. First discussed are the relationships of constitutionalism and constitutional law to popular understandings and political contexts and their relationship to constitutional understandings and transformations. A second set of concerns revolve around dilemmas of equality. Third, explicit or implicit in virtually all of the essays is the theme that globalization as a phenomenon requires comparative constitutional study. Here is a thoughtful and stimulating collection that will be of value to legal scholars, students, and others involved with constitutional law issues.

Current Courses

Course Catalog View

Areeda 223

617-496-4451

Assistant: Benjamin Sears / 617-495-9534