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, The Constitution of the United States of America: A Contextual Analysis (Hart Publ'g 2d rev. ed. 2015).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Book
Abstract
"This is the second edition of Professor Mark Tushnet's excellent short critical introduction to the history and current meaning of the United States' Constitution. It is organized around two themes: first, the US Constitution is old, short, and difficult to amend. These characteristics have made constitutional 'interpretation' - especially by the US Supreme Court - the primary mechanism for adapting the Constitution to ever-changing reality. Second, the Constitution creates a structure of political opportunities that allows political actors, including political parties, to pursue the preferred policy goals, even to the point of altering the very structure of politics. Politics, that is, often gives meaning to the Constitution. Deploying these themes to examine the structure of the national government, federalism, judicial review, and individual rights, the book provides basic information about, and deeper insights into, the way the US constitutional system has developed and what it means today." --Amazon
Mark Tushnet, Advanced Introduction to Comparative Constitutional Law (Edward Elgar Publ'g 2014).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
Separation of Powers
,
Comparative Law
Type: Book
Abstract
"Mark Tushnet, a world-renowned scholar of constitutional law, presents an introduction to comparative constitutional law through an analysis of topics at the cutting-edge of contemporary scholarship. His authoritative study investigates constitution making, including the problem of unconstitutional constitutional amendments; recent developments in forms of constitutional review, including 'the battle of the courts'; proportionality analysis and its alternatives; and the emergence of a new 'transparency' branch in constitutions around the world. Throughout, the book draws upon examples from a wide range of nations, demonstrating that the field of comparative constitutional law now truly encompasses the world." -- Publisher's description.
Routledge Handbook of Constitutional Law (Mark Tushnet, Thomas Fleiner & Cheryl Saunders eds., Routledge 2012).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Abstract
The Routledge Handbook of Constitutional Law is an advanced level reference work which surveys the current state of constitutional law. Featuring new, specially commissioned papers by a range of leading scholars from around the world, it offers a comprehensive overview of the field as well as identifying promising avenues for future research. The book presents the key issues in constitutional law thematically allowing for a truly comparative approach to the subject. It also pays particular attention to constitutional design, identifying and evaluating various solutions to the challenges involved in constitutional architecture.
Mark V. Tushnet, Alan K. Chen & Joseph Blocher, Free Speech Beyond Words: The Surprising Reach of the First Amendment (N.Y. Univ. Press 2017).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Book
Abstract
Comprehensive and compelling, this book represents a sustained effort to account, constitutionally, for these modes of “speech.” While it is firmly centered in debates about First Amendment issues, it addresses them in a novel way, using subject matter that is uniquely well suited to the task, and whose constitutional salience has been under-explored. Drawing on existing legal doctrine, aesthetics, and analytical philosophy, three celebrated law scholars show us how and why speech beyond words should be fundamental to our understanding of the First Amendment.
Mark Tushnet, Book Review, 47 J. Interdisciplinary Hist. 405 (2017)(reviewing Brett Christophers, The Great Leveler: Capitalism and Competition in the Court of Law (2016)).
Categories:
Corporate Law & Securities
Sub-Categories:
Antitrust & Competition Law
Type: Article
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 V. Tushnet, Jan Deutsch: An Appreciation (Harvard Pub. Law Working Paper No. 16-42, Aug. 20, 2016).
Categories:
Disciplinary Perspectives & Law
,
Legal Profession
Sub-Categories:
Critical Legal Studies
,
Law & Political Theory
,
Biography & Tribute
Type: Article
Abstract
This brief Appreciation of the late Jan Deutsch sketches several "encounters" I had with Deutsch and his thought, and explains how that thought formed part of the underpinning of my thinking about law and, specifically, Critical Legal Studies.
Mark V. Tushnet, Three Essays on Proportionality Doctrine (Harvard Pub. Law Working Paper No. 16-43, Aug. 4, 2016).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
The following three essays deal with diverse aspects of the doctrine of proportionality. The first argues that rationality review in U.S. constitutional law, which deals with challenges to legislation on the ground that the legislation violates a general right to liberty rather than any specific enumerated right, could be improved by expressly incorporating several features of proportionality doctrine. The second addresses the often made claim that proportionality analysis leads to “rights inflation,” and offers a doctrinal account and a politico-cultural account of that phenomenon. The third, to appear in a collection co-edited by Vicki C. Jackson and Mark Tushnet, tentatively titled New Frontiers in Proportionality Analysis (Cambridge University Press, 2017), argues that some cases treated as “easy’ under proportionality doctrine, are actually more difficult, and that recognizing their difficulty supports, to some degree, the adoption of the kind of categorical analysis that proportionality doctrine is thought to reject.
Mark Tushnet, Notes on Some Aspects of the Taxonomy of ‘Generations’ of Rights (Harvard Pub. Law Working Paper No. 16-46, July 8, 2016).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
This brief Essay examines the relationship between so-called first, second, and third generation rights. It is often thought that second and third generation rights supplement and deepen the commitments to human flourishing that underlie first generation rights. The Essay argues that the generations of rights have rather different conceptual underpinnings and that there may be serious conflicts among particular realizations of first, second, and third generation rights. An optimization strategy of the sort suggested by Robert Alexy, suitably adapted, might provide some ad hoc solutions, but it may be that the generations of rights ultimately are irreconcilable (in the large, though of course not in many particular instances).
Mark Tushnet, The Indian Constitution Seen from Outside, in The Oxford Handbook of the Indian Constitution 1019 (Sujit Choudhry, Madhav Khosla & Pratap Bhanu Mehta eds., 2016).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
,
Foreign Law
Type: Book
Abstract
This chapter considers some aspects of the Indian Constitution and its judicial interpretation, as seen from abroad. To this end, it discusses a number of topics that compare India’s constitutional experience with those of other countries, beginning with unconstitutional constitutional amendments and the ‘Basic Structure’ doctrine. It then explores public interest litigation, affirmative action and reservations, and finally the mechanisms by which judicial independence has been secured in India. It also comments on the contentious relationship between constitutional courts and political elites in other institutions. The chapter concludes by noting how constitutional developments, including the growth of constitutional doctrine, are intertwined with a nation’s overall political system, especially the party system in place.
Mark Tushnet, Book Review, 7 Jurisprudence 355 (2016)(reviewing Jean Thomas, Public Rights, Private Relations (2015)).
Categories:
Constitutional Law
,
Government & Politics
,
Civil Practice & Procedure
Sub-Categories:
Private Law
,
Public Law
,
Judges & Jurisprudence
Type: Article
Mark Tushnet, The Coverage/Protection Distinction in the Law of Freedom of Speech — An Essay on Meta-Doctrine in Constitutional Law (Harvard Pub. Law Working Paper No. 16-26, Apr. 26, 2016).
Categories:
Constitutional Law
Sub-Categories:
First Amendment
Type: Article
Abstract
The distinction between the First Amendment’s coverage – those human activities the regulation of which is evaluated by invoking the First Amendment – and the protection it affords – the conditions under which a regulation violates the First Amendment – has been an important component of the Amendment’s doctrinal architecture. Recent Supreme Court decisions place significant pressure on the coverage/protection distinction. This Essay examines those cases and the ways in which intuitively attractive results might be precluded by abandoning the distinction. Salvaging those results is possible, but only by deploying analytical moves that run athwart a constitutional “meta-doctrine,” which I call the “too much work” principle. In addition to contributing to understanding the coverage/protection distinction and the Court’s recent decisions, the Essay explains the role that meta-doctrines play in constitutional architecture more generally.
Mark Tushnet, New Institutional Mechanisms for Making Constitutional Law, in Democratizing Constitutional Law 167 (Thomas Bustamante & Bernardo Gonçalves Fernandes eds., 2016).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Book
Abstract
Traditionally, two general methods have been used to make constitutional law. The first involves creating a constitutional text, and has been done by constituent assemblies convened especially for that purpose or by legislatures either proposing replacement constitutions or more limited constitutional amendments. The second involves interpreting existing constitutional texts, and has been done by specialized constitutional courts or generalist courts. After describing briefly what we know about how constitutional law is made by these traditional methods, this essay turns to some recent innovations in making constitutional law, which I describe generically as involving substantially higher levels of public participation than in the traditional methods: the process of drafting a proposed new constitution for Iceland, and the practice of "public hearings" in the Brazilian Supreme Federal Court. My aim is to identify some features of these newer methods that might be of interest to scholars of comparative constitutional law. For that reason, the essay paints in deliberately broad strokes, isolating features that may point in the direction of a more general understanding of constitution-making processes while ignoring features that may play crucial roles in the two specific processes on which I focus.
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, Religion and the Roberts Court: The Limits of Religious Pluralism in Constitutional Law, in The Rise of Corporate Religious Liberty ch. 23 (Micah Schwartzman, Chad Flanders & Zoë Robinson eds., 2016).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Religion
,
Supreme Court of the United States
Type: Book
Abstract
What are the rights of religious institutions? Should those rights extend to for-profit corporations? Houses of worship have claimed they should be free from anti-discrimination laws in hiring and firing ministers and other employees. Faith-based institutions, including hospitals and universities, have sought exemptions from requirements to provide contraception. Now, in a surprising development, large for-profit corporations have succeeded in asserting rights to religious free exercise. The Rise of Corporate Religious Liberty explores this "corporate" turn in law and religion. Drawing on a broad range perspectives, this book examines the idea of "freedom of the church," the rights of for-profit corporations, and the implications of the Supreme Court's landmark decision in Burwell v. Hobby Lobby for debates on anti-discrimination law, same-sex marriage, health care, and religious freedom. -- Back cover.
Mark Tushnet, Tocqueville’s Nightmare:  Institutional and Intellectual, 129 Harv. L. Rev. 122 (2016) (response to Jeremy K. Kessler, The Struggle for Administrative Legitimacy, 129 Harv. L. Rev. 718 (2016)).
Categories:
Government & Politics
Sub-Categories:
Administrative Law & Agencies
,
Politics & Political Theory
Type: Article
Mark Tushnet, Politics as Rational Deliberation or Theater:  A Response to ‘Institutional Flip-Flops’, 94 Tex. L. Rev. See Also 82 (2016).
Categories:
Government & Politics
Sub-Categories:
Politics & Political Theory
Type: Article
Mark Tushnet, Book Review, 13 Persp. on Pol. 1209 (2015) (reviewing New Constitutionalism and World Order (Stephen Gill & Claire Cutler eds., 2014).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
Type: Article
Antoni Abat i Ninet & Mark Tushnet, The Arab Spring: an Essay on Revolution and Constitutionalism (Edward Elgar Publ'g 2015).
Categories:
Constitutional Law
,
Disciplinary Perspectives & Law
,
International, Foreign & Comparative Law
Sub-Categories:
Constitutional History
,
Islamic Law
,
Comparative Law
Type: Book
Abstract
Approaching the concept of Islamic constitutionalism from a comparative perspective, this thought-provoking study by Antoni Abat i Ninet and Mark Tushnet uses traditional Western political theory as a lens to develop a framework for analyzing the events known as the 'Arab Spring'. Writing with clarity and insight, the authors place Western and Arabic traditions into a constructive dialogue. They focus on whether we can develop a 'theory of revolutions' that helps us understand events occurring at divergent times at geographically separate locations. This question is meticulously analyzed through the detailed examination of specific developments relevant to the ideas of revolution and constitutionalism in several nations affected by the Arab Spring. Case studies focus on Morocco and Libya as examples of unsuccessful revolutions, as well as Tunisia and Egypt. These lead the authors to consider the nature of constitutionalism itself and the concept of illiberal but non-authoritarian constitutions: a particularly pressing concern given the prominent contemporary discussions of the role of shari'a in post-Arab Spring constitutions. The Arab Spring will offer new insights to scholars, researchers and students of law and the political sciences, in particular those focusing on theories of revolution, democracy, constitutional law, Islamic constitutionalism and legal theory.
Unstable Constitutionalism: Law and Politics in South Asia (Mark Tushnet & Madhav Khosla eds., Cambridge Univ. Press 2015).
Categories:
Constitutional Law
,
Government & Politics
,
International, Foreign & Comparative Law
Sub-Categories:
Politics & Political Theory
,
Comparative Law
,
Foreign Law
Type: Book
Abstract
Although the field of constitutional law has become increasingly comparative in recent years, its geographic focus has remained limited. South Asia, despite being the site of the world's largest democracy and a vibrant if turbulent constitutionalism, is one of the important neglected regions within the field. This book remedies this lack of attention by providing a detailed examination of constitutional law and practice in five South Asian countries: India, Pakistan, Sri Lanka, Nepal, and Bangladesh. Identifying a common theme of volatile change, it develops the concept of 'unstable constitutionalism', studying the sources of instability alongside reactions and responses to it. By highlighting unique theoretical and practical questions in an underrepresented region, Unstable Constitutionalism constitutes an important step toward truly global constitutional scholarship.
Oxford Handbook of the U.S. Constitution (Mark Tushnet, Mark A. Graber & Sanford Levinson eds., Oxford Univ. Press 2015).
Categories:
Constitutional Law
,
Government & Politics
Sub-Categories:
Constitutional History
,
First Amendment
,
Religion
,
Second Amendment
,
Fourth Amendment
,
Fifth Amendment
,
Eighth Amendment
,
Eleventh Amendment
,
Third Amendment
,
Fourteenth Amendment
,
Other Amendments
,
Supreme Court of the United States
,
Federalism
,
Separation of Powers
Type: Book
Abstract
The Oxford Handbook of the U.S. Constitution offers a comprehensive overview and introduction to the U.S. Constitution from the perspectives of history, political science, law, rights, and constitutional themes, while focusing on its development, structures, rights, and role in the U.S. political system and culture. This Handbook enables readers within and beyond the U.S. to develop a critical comprehension of the literature on the Constitution, along with accessible and up-to-date analysis. The historical essays included in this Handbook cover the Constitution from 1620 right through the Reagan Revolution to the present. Essays on political science detail how contemporary citizens in the United States rely extensively on political parties, interest groups, and bureaucrats to operate a constitution designed to prevent the rise of parties, interest-group politics, and an entrenched bureaucracy. The essays on law explore how contemporary citizens appear to expect and accept the exertions of power by a Supreme Court, whose members are increasingly disconnected from the world of practical politics. Essays on rights discuss how contemporary citizens living in a diverse multi-racial society seek guidance on the meaning of liberty and equality from a Constitution originally designed for a society in which all politically relevant persons shared the same race, gender, religion, and ethnicity. Lastly, the essays on themes explain how in a "globalized" world, people living in the United States can continue to be governed by a constitution originally meant for a society geographically separated from the rest of the "civilized world." Whether a return to the pristine constitutional institutions of the founding or a translation of these constitutional norms in the present is possible remains the central challenge of U.S. constitutionalism today
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, Book Review, 77 Historian 335 (2015) (reviewing Max Holland, Leak: Why Mark Felt Became Deep Throat (2012)).
Categories:
Government & Politics
Sub-Categories:
Government Accountability
,
Corruption
Type: Article
Mark V. Tushnet, New Institutional Mechanisms for Making Constitutional Law (Harvard Pub. Law Working Paper No. 15-08, Apr. 4, 2015).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
Traditionally, two general methods have been used to make constitutional law. The first involves creating a constitutional text, and has been done by constituent assemblies convened especially for that purpose or by legislatures either proposing replacement constitutions or more limited constitutional amendments. The second involves interpreting existing constitutional texts, and has been done by specialized constitutional courts or generalist courts. After describing briefly what we know about how constitutional law is made by these traditional methods, this essay turns to some recent innovations in making constitutional law, which I describe generically as involving substantially higher levels of public participation than in the traditional methods: the process of drafting a proposed new constitution for Iceland, and the practice of "public hearings" in the Brazilian Supreme Federal Court. My aim is to identify some features of these newer methods that might be of interest to scholars of comparative constitutional law. For that reason, the essay paints in deliberately broad strokes, isolating features that may point in the direction of a more general understanding of constitution-making processes while ignoring features that may play crucial roles in the two specific processes on which I focus.
Mark V. Tushnet, Civil Rights Policy (Harvard Pub. Law Working Paper No. 15-10, Apr. 4, 2015).
Categories:
Discrimination & Civil Rights
,
Legal Profession
Sub-Categories:
Civil Rights
,
Legal History
Type: Article
Abstract
This essay offers an overview of US civil rights policy from the nineteenth century to the present. The expansion of the range of substantive interests covered by the term “civil rights” has been accompanied by an increasing emphasis on the connection between equality and civil rights. From the late nineteenth century through the first half of the twentieth, the term referred to racial equality with respect to whatever fit into the category, whether property rights, the right to vote, or social rights. Starting roughly in the middle of the twentieth century, “civil rights” began to be connected to other categories, such as gender, religion, sexual orientation, and by the twenty-first century quite a bit more. After examining the history of the idea and its implementation, the essay concludes with a discussion of contemporary controversies over disparate impact versus disparate treatment, affirmative action, and accommodation mandates.
Mark V. Tushnet, Constitutional Law: Critical and Comparative (Harvard Pub. Law Working Paper No. 15-09, Apr. 4, 2015).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
This brief essay serves as an introduction to a volume of studies by Latin American scholars of constitutional law and theory responding to themes in my work. It outlines the jurisprudential and historical-political background against which my work developed, stressing the important roles played by American Legal Realism and the politics of the 1960s in shaping my thinking. The essay explains how my interest in populist constitutional law and dialogic forms of constitutional review emerged from the same background, but was strengthened by an interest in comparative constitutional law that I developed in the 1990s.
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.
Mark Tushnet, "Accommodation of Religion" Thirty Years On, 38 Harv. J.L. & Gender 1 (2015).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Religion
,
Religious Rights
,
Religion & Law
Type: Article
Mark V. Tushnet, Authoritarian Constitutionalism, 100 Cornell L. Rev. 391 (2015).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
,
Government & Politics
Sub-Categories:
Politics & Political Theory
,
Comparative Law
,
East Asian Legal Studies
Type: Article
Abstract
Legal scholars and political theorists interested in constitutionalism as a normative concept tend to dichotomize the subject. There is liberal constitutionalism of the sort familiar in the modern West, with core commitments to human rights and self-governance implemented by means of varying institutional devices, and there is authoritarianism, rejecting human rights entirely and governed by unconstrained power-holders. This Article explores the possibility of forms of constitutionalism other than liberal constitutionalism. The Article focuses on what I call authoritarian constitutionalism. That discussion is connected to recent literature in political science on hybrid regimes. Drawing on these literatures, this Article outlines some characteristics of authoritarian constitutionalism understood normatively. The reason for such an exploration parallels that for the analysis of hybrid regimes. For a period those regimes were described as transitional, on the assumption that they were an intermediate point on a trajectory from authoritarianism to liberal democracy. Scholars have come to understand that we are better off seeing these regimes as a distinct type (or as several distinct types), as stable as many democracies. In short, they have pluralized the category of regime types. Similarly, I suggest, pluralizing the category of constitutionalism will enhance understanding by allowing us to draw distinctions between regimes that should be normatively distinguished. I begin with a brief description of three forms of constitutionalism other than liberal constitutionalism. In absolutist constitutionalism, a single decision-maker motivated by an interest in the nation’s well-being consults widely and protects civil liberties generally, but in the end decides on a course of action in the decision-maker’s sole discretion, unchecked by any other institutions. In mere rule-of-law constitutionalism, the decision-maker conforms with some general procedural requirements and implements decisions through, among other things, independent courts, but is not constrained by any substantive rules regarding, for example, civil liberties. Finally, in authoritarian constitutionalism liberal freedoms are protected at an intermediate level and elections are reasonably free and fair. The Article proceeds by describing in Part II Singapore’s constitutionalism, to motivate the later consideration of a more generalized account of authoritarian constitutionalism. Beginning the effort to pluralize the idea of constitutionalism, Part III examines the role of constitutions and courts in absolutist nations and in nations with mere rule-of-law constitutionalism. Part IV is deflationary, arguing against some political scientists’ instrumental or strategic accounts of constitutions, courts, and elections in nations with fully authoritarian systems, where liberal freedoms are not generally respected. The Part implicitly suggests that whatever semblance of true constitutionalism there is in such nations results from normative commitments by authoritarian rulers. Part V lays out some general characteristics of authoritarian constitutionalism, again with the goal of suggesting that authoritarian constitutionalism may best be defined by attributing moderately strong normative commitments to constitutionalism – not strategic calculations – to those controlling these nations. The upshot of Parts III through V is that either (a) the commitment to constitutionalism in all authoritarian regimes is a sham, or (b) at least some of them – the ones I label “authoritarian constitutionalist” – might have a normative commitment to constitutionalism. Part VI concludes with the suggestion that authoritarian constitutionalism has some normative attractions, at least in nations where the alternative of authoritarianism is more likely than that of liberal democracy.
Mark Tushnet, Duncan Kennedy As, Yes, Mentor, 10 Unbound:  Harv. J. Legal Left 75 (2015).
Categories:
Legal Profession
,
Disciplinary Perspectives & Law
Sub-Categories:
Critical Legal Studies
,
Legal Theory & Philosophy
,
Biography & Tribute
Type: Article
Mark Tushnet, Internet Exceptionalism:  An Overview From General Constitutional Law, 56 Wm. & Mary L. Rev. 1637 (2015).
Categories:
Constitutional Law
,
Technology & Law
Sub-Categories:
First Amendment
,
Networked Society
Type: Article
Mark Tushnet, Observations on the Politics of “Best Practices” in Constitutional Advice Giving, 50 Wake Forest L. Rev. 843 (2015).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Foreign Relations
Type: Article
Mark Tushnet, Red, White, and Blue: A Critical Analysis of Constitutional Law (Univ. Press of Kan. 2015).
Categories:
Constitutional Law
Sub-Categories:
Constitutional History
Type: Book
Abstract
"The first paperback edition of a classic of American constitutional theory. The book is divided into two parts. In Part I Professor Tushnet appraises the five major competing "grand theories" of constitutional law and interpretation, and, argues that none of them satisfy their own requirements for coherence and judicial constraint. In Part II the author offers a descriptive sociology of constitutional doctrine and raises critical questions as to whether a grand theory is necessary, is it possible to construct a coherent, useful grand theory, and is construction of an uncontroversial grand theory possible? Professor Tushnet's new Afterword is organized in parallel fashion to the original text. Part I offers a new survey of the contemporary terrain of constitutional interpretation. Part II provides an extended discussion of the most prominent of contemporary efforts to provide an external analysis of constitutional law, the idea of regime politics. This includes discussion of major court decisions, including Bush v. Gore and Citizens United"-- Provided by publisher.
Mark V. Tushnet, Book Review, 76 Historian 892 (2014) (reviewing Constitutional Cultures: On the Concept and Representation of Constitutions in the Atlantic World (Silke Hensel, Ulrike Bock, Katrin Dircksen & Hans-Ulrich Thamer eds., 2012).
Categories:
Constitutional Law
,
International, Foreign & Comparative Law
Sub-Categories:
Comparative Law
Type: Article
Abstract
This volume is the product of a collaborative project by multiple authors, most of whom are affiliated with academic institutions in Germany. The book's chapters examine the culture of constitutionalism in France, Germany, the United States, and Mexico, with some glances at other nations in Latin America, in the late eighteenth and early nineteenth centuries, again with some glances at later periods.
Mark Tushnet, Justice Breyer and the Partial De-Doctrinalization of Free Speech Law, 128 Harv. L. Rev. 508 (2014).
Categories:
Constitutional Law
,
Government & Politics
,
Legal Profession
Sub-Categories:
First Amendment
,
Judges & Jurisprudence
,
Supreme Court of the United States
,
Biography & Tribute
Type: Article
Mark Tushnet, Book Review, 76 Historian 606 (2014)(reviewing Dean A. Strang, Worse Than the Devil: Anarchists, Clarence Darrow & Justice in a Time of Terror (2013)).
Categories:
Legal Profession
,
Criminal Law & Procedure
Sub-Categories:
Criminal Defense
,
Jury Trials
,
Legal History
,
Legal Ethics
Type: Article
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, Liberals, Litigants, and the Disappearance of Consensus About The Religion Clauses, 93 Tex. L. Rev. 207 (2014)(reviewing Steven D. Smith, The Rise and Decline of American Religious Freedom (2014)).
Categories:
Constitutional Law
,
Discrimination & Civil Rights
,
Disciplinary Perspectives & Law
Sub-Categories:
Religion
,
Religious Rights
,
Religion & Law
Type: Article
Mark Tushnet, New York Times v. Sullivan Around the World, 66 Ala. L. Rev. 337 (2014).
Categories:
Constitutional Law
,
Technology & Law
,
International, Foreign & Comparative Law
Sub-Categories:
First Amendment
,
Comparative Law
,
Communications Law
Type: Article
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.
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
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.
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.
Mark Tushnet, The Affordable Care Act and American Constitutional Development, 62 Drake L. Rev. 1079 (2014).
Categories:
Constitutional Law
,
Health Care
,
Government & Politics
Sub-Categories:
Executive Office
,
Politics & Political Theory
,
Health Law & Policy
Type: Article

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